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Exhibit 10.28
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AMENDED AND RESTATED
GUARANTEE AND COLLATERAL AGREEMENT
MADE BY
LIN HOLDINGS CORP.,
LIN TELEVISION CORPORATION AND
CERTAIN OF ITS SUBSIDIARIES,
IN FAVOR OF
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
DATED AS OF MARCH 31, 2000
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SECTION 1. DEFINED TERMS
1.1 Definitions...................................................................................1
1.2 Other Definitional Provisions.................................................................7
SECTION 2. GUARANTEE
2.1 Guarantee of Borrower Obligations.............................................................8
2.1.1 Right of Contribution.........................................................................9
2.1.2 No Subrogation................................................................................9
2.1.3 Amendments, etc. with respect to the Borrower Obligations.....................................9
2.1.4 Guarantee Absolute and Unconditional.........................................................10
2.1.5 Reinstatement................................................................................11
2.1.6 Payments.....................................................................................11
2.2 Guarantee of IHB Obligations.................................................................11
2.2.1 Right of Contribution........................................................................12
2.2.2 No Subrogation...............................................................................12
2.2.3 Amendments, etc. with respect to the IHB Obligations.........................................12
2.2.4 Guarantee Absolute and Unconditional.........................................................13
2.2.5 Reinstatement................................................................................14
2.2.6 Payments.....................................................................................14
SECTION 3. GRANT OF SECURITY INTEREST
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 Representations in LIN Credit Agreement......................................................15
4.2 Title. No Other Liens........................................................................15
4.3 Perfected First Priority Liens...............................................................16
4.4 Chief Executive Office.......................................................................16
4.5 Inventory and Equipment......................................................................16
4.6 Farm Products................................................................................16
4.7 Pledged Securities...........................................................................16
4.8 Receivables..................................................................................17
4.9 Intellectual Property........................................................................17
4.10 Financial Condition..........................................................................17
4.11 Solvency.....................................................................................18
4.12 Security Documents...........................................................................18
SECTION 5. COVENANTS
5.1 Covenants in LIN Credit Agreement............................................................18
5.2 Financial Statements; Certificates; Notices..................................................18
5.3 Delivery of Instruments and Chattel Paper....................................................19
5.4 Insurance....................................................................................19
5.5 Maintenance of Perfected Security Interest; Further Documentation............................19
5.6 Changes in Locations, Name, etc..............................................................19
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5.7 Pledged Securities...........................................................................20
5.8 Receivables..................................................................................20
5.9 Intellectual Property........................................................................21
SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Related to Receivables.......................................................22
6.2 Communications with Obligors, Grantors Remain Liable.........................................22
6.3 Pledged Securities...........................................................................23
6.4 Proceeds to be Turned Over to Administrative Agent...........................................24
6.5 Application of Proceeds......................................................................24
6.6 Code and Other Remedies......................................................................24
6.7 Registration Rights..........................................................................25
6.8 Waiver; Deficiency...........................................................................26
6.9 Application of Proceeds......................................................................26
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc..................................27
7.2 Duty of Administrative Agent.................................................................28
7.3 Execution of Financing Statements............................................................29
7.4 Authority of Administrative Agent............................................................29
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing........................................................................29
8.2 Notices......................................................................................30
8.3 No Waiver by Course of Conduct; Cumulative Remedies..........................................30
8.4 Enforcement Expenses, Indemnification........................................................30
8.5 Successors and Assigns.......................................................................30
8.6 Set-Off......................................................................................31
8.7 Counterparts.................................................................................31
8.8 Severability.................................................................................31
8.9 Integration..................................................................................31
8.10 GOVERNING LAW................................................................................31
8.11 Submission To Jurisdiction; Waivers..........................................................31
8.12 Acknowledgments..............................................................................32
8.13 WAIVERS OF JURY TRIAL........................................................................32
8.14 Section Headings.............................................................................32
8.15 Additional Grantors..........................................................................33
8.16 Releases.....................................................................................33
8.17 FCC Compliance...............................................................................33
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AMENDED AND RESTATED GUARANTEE AND COLLATERAL
AGREEMENT, dated as of March 31, 2000, made by each of the
signatories hereto listed on SCHEDULE 7 attached hereto
(together with any other entity that may become a party
hereto as provided herein, the "GRANTORS"), in favor of THE
CHASE MANHATTAN BANK, as Administrative Agent (as defined
below) for (a) the banks and other financial institutions or
entities (the "LIN LENDERS") from time to time parties to
the Credit Agreement, dated as of March 3, 1998 (as amended,
supplemented or otherwise modified from time to time, the
"LIN CREDIT AGREEMENT"), among LIN HOLDINGS CORP., a
Delaware corporation ("HOLDINGS"), LIN TELEVISION
CORPORATION, a Delaware corporation (the "BORROWER"), the
LIN Lenders, THE CHASE MANHATTAN BANK, as administrative
agent (in such capacity, the "BORROWER ADMINISTRATIVE
AGENT"), swingline lender and issuing lender, The Bank of
New York, as syndication agent (in such capacity, the
"SYNDICATION AGENT"), and Bank of America, N.A., as
successor documentation agent to NATIONAL WESTMINSTER BANK
PLC (in such capacity, the "DOCUMENTATION AGENT") and (b)
the banks and other financial institutions or entities (the
"IHB LENDERS") from time to time parties to the Credit
Agreement dated as of March 31, 2000 (as amended,
supplemented or otherwise modified from time to time, the
"IHB CREDIT AGREEMENT"), among WWLP, INC., a Delaware
corporation ("IHB"), the IHB Lenders, THE CHASE MANHATTAN
BANK, as administrative agent (in such capacity, the "IHB
ADMINISTRATIVE AGENT") and syndication agent, and Bank of
America, N.A., as documentation agent.
SECTION 1. DEFINED TERMS
1.1 DEFINITIONS. (a) Unless otherwise defined herein, terms defined in
the LIN Credit Agreement and used herein shall have the meanings given to them
in the LIN Credit Agreement, and the following terms which are defined in the
Uniform Commercial Code in effect in the State of New York on the date hereof
are used herein as so defined: Accounts, Chattel Paper, Documents, Equipment,
Farm Products, Instruments and Inventory.
(b) The following terms shall have the following meanings:
"ADMINISTRATIVE AGENT": (i) when used solely in connection with the
LIN Credit Agreement, the Borrower Administrative Agent, (ii) when used solely
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connection with the IHB Credit Agreement, the IHB Administrative Agent, and
(iii) in all other cases, the Borrower Administrative Agent and the IHB
Administrative Agent, acting in both such capacities.
"AGREEMENT": this Amended and Restated Guarantee and Collateral
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
"BORROWER COMMITMENTS": the Commitments (as defined in the LIN Credit
Agreement).
"BORROWER GUARANTOR OBLIGATIONS": with respect to any Borrower
Guarantor, the collective reference to (i) the Borrower Obligations and (ii) all
obligations and liabilities of such Borrower Guarantor which may arise under or
in connection with this Agreement, or any other Loan Document to which such
Borrower Guarantor is a party, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of counsel
to the Administrative Agent or to the Borrower Secured Parties that are required
to be paid by such Borrower Guarantor pursuant to the terms of this Agreement or
any other Loan Document).
"BORROWER GUARANTORS": the collective reference to each Grantor other
than the Borrower.
"BORROWER OBLIGATIONS": the collective reference to 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,
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 to the Administrative Agent, the
Swingline Lender, the Issuing Lender or to any Lender (or, in the case of
Interest Rate Protection Agreements, any affiliate of any Lender), 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, the LIN Credit Agreement, any Notes, any other Loan Documents, the Letters
of Credit, any Interest Rate Protection Agreement entered into with any
counterparty thereto 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 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 Lender that are required to be paid by the Borrower pursuant to
the LIN Credit Agreement) or otherwise.
"BORROWER SECURED PARTIES": (i) the LIN Lenders, (ii) the
Administrative Agent, (iii) the Syndication Agent, (iv) the Documentation Agent,
(v) the Issuing Lender, (vi) each counterparty to an Interest Rate Protection
Agreement entered into with the
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Borrower if such counterparty was a Lender at the time the Interest Rate
Protection Agreement was entered into, (vii) the beneficiaries of each
indemnification obligation undertaken by any Grantor under any Loan Document and
(viii) the successors and assigns of each of the foregoing.
"CODE": the Uniform Commercial Code as from time to time in effect in
the State of New York.
"COLLATERAL": as defined in Section 3.
"COLLATERAL ACCOUNT": any collateral account established by the
Administrative Agent as provided in Section 6.1 or 6.4.
"COMMITMENTS": (i) in the case of the LIN Lenders, as defined in the
LIN Credit Agreement, and (ii) in the case of the IHB Lenders, as defined in the
IHB Credit Agreement.
"COMMODITY ACCOUNT": an account maintained by a Commodity Intermediary
in which a Commodity Contract is carried out for a Commodity Customer.
"COMMODITY CONTRACT": a commodity futures contract, an option on a
commodity futures contract, a commodity option or any other contract that, in
each case, is (a) traded on or subject to the rules of a board of trade that has
been designated as a contract market for such a contract pursuant to the federal
commodities laws or (b) traded on a foreign commodity board of trade, exchange
or market, and is carried on the books of a Commodity Intermediary for a
Commodity Customer.
"COMMODITY CUSTOMER": a Person for whom a Commodity Intermediary
carries a Commodity Contract on its books.
"COMMODITY INTERMEDIARY": (i) a Person who is registered as a futures
commission merchant under the federal commodities laws or (ii) a Person who in
the ordinary course of its business provides clearance or settlement services
for a board of trade that has been designated as a contract market pursuant to
federal commodities laws.
"COMMUNICATIONS ACT": the Communications Act of 1934, as amended.
"COPYRIGHTS": (i) all copyrights, in the United States or any other
country, whether registered or unregistered, or published or unpublished
(including, without limitation, those listed in SCHEDULE 6 ), all registrations
and recordings thereof, and all applications in connection therewith, including,
without limitation, all registrations, recordings and applications in the United
States Copyright Office, and (ii) the right to obtain all renewals thereof.
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"COPYRIGHT LICENSES": any written agreement naming any Grantor as
licensor or licensee (including, without limitation, those listed in SCHEDULE
6), granting any right under any Copyright, including, without limitation, the
grant of rights to manufacture, distribute, exploit and sell materials derived
from any Copyright.
"DEFAULT": either, (i) a "Default" as defined in the LIN Credit
Agreement or (ii) a "Default" as defined in the IHB Credit Agreement.
"ENTITLEMENT HOLDER": a Person identified in the records of a
Securities Intermediary as the Person having a Security Entitlement against the
Securities Intermediary. If a Person acquires a Security Entitlement by virtue
of Section 8-501(b)(2) or (3) of the Uniform Commercial Code, such Person is the
Entitlement Holder.
"EVENT OF DEFAULT": either, (i) an "Event of Default" as defined in
the LIN Credit Agreement or (ii) an "Event of Default" as defined in the IHB
Credit Agreement.
"FINANCIAL ASSET": (i) a Security, (ii) an obligation of a Person or a
share, participation or other interest in a Person or in property or an
enterprise of a Person, which is, or is of a type, dealt with in or traded on
financial markets, or which is recognized in any area in which it is issued or
dealt in as a medium for investment or (iii) any property that is held by a
Securities Intermediary for another Person in a Securities Account if the
Securities Intermediary has expressly agreed with the other Person that the
property is to be treated as a Financial Asset under Article 8 of the Uniform
Commercial Code. As the context requires, the term Financial Asset shall mean
either the interest itself or the means by which a person's claim to it is
evidenced, including a certificated or uncertificated Security, a certificate
representing a Security or a Security Entitlement.
"FIXTURES": all items of Equipment, whether now owned or hereafter
acquired, of any Grantor that become so related to particular real estate that
an interest in them arises under any real estate law applicable thereto.
"GENERAL INTANGIBLES": all "general intangibles" as such term is
defined in Section 9-106 of the Uniform Commercial Code in effect in the State
of New York on the date hereof and, in any event, including, without limitation,
with respect to any Grantor, all contracts, agreements, limited partnership
interests, limited liability company interests, instruments and indentures in
any form, and portions thereof, to which such Grantor is a party or under which
such Grantor has any right, title or interest or to which such Grantor or any
property of such Grantor is subject, as the same may from time to time be
amended, supplemented or otherwise modified, including, without limitation, (i)
all rights of such Grantor to receive moneys due and to become due to it
thereunder or in connection therewith, (ii) all rights of such Grantor to
damages arising thereunder and (iii) all rights of such Grantor to perform and
to exercise all remedies thereunder, in each case
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to the extent the grant by such Grantor of a security interest pursuant to this
Agreement in its right, title and interest in such contract, agreement,
instrument or indenture is not prohibited by such contract, agreement,
instrument or indenture without the consent of any other party thereto, would
not give any other party to such contract, agreement, instrument or indenture
the right to terminate its obligations thereunder, or is permitted with consent
if all necessary consents to such grant of a security interest have been
obtained from the other parties thereto (it being understood that the foregoing
shall not be deemed to obligate such Grantor to obtain such consents), PROVIDED
that the foregoing limitation shall not affect, limit, restrict or impair the
grant by such Grantor of a security interest pursuant to this Agreement in any
Receivable or any money or other amounts due or to become due under any such
contract, agreement, instrument or indenture.
"GUARANTOR OBLIGATIONS": the Borrower Guarantor Obligations and the
IHB Guarantor Obligations.
"GUARANTORS": the Borrower Guarantors and the IHB Guarantors.
"IHB COMMITMENTS": the Commitments (as defined in the IHB Credit
Agreement).
"IHB GUARANTOR OBLIGATIONS": with respect to any IHB Guarantor, the
collective reference to (i) the IHB Obligations and (ii) all obligations and
liabilities of such IHB Guarantor which may arise under or in connection with
this Agreement, or any other IHB Loan Document to which such IHB Guarantor is a
party, in each case whether on account of guarantee obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Administrative Agent or to the IHB
Secured Parties that are required to be paid by such IHB Guarantor pursuant to
the terms of this Agreement or any other IHB Loan Document).
"IHB GUARANTORS": the collective reference to each Grantor.
"IHB LOAN DOCUMENTS": the Loan Documents (as defined in the IHB Credit
Agreement).
"IHB NOTES": the Notes (as defined in the IHB Credit Agreement).
"IHB OBLIGATIONS": the collective reference to the unpaid principal of
and interest on (including, without limitation, interest accruing after the
maturity of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to IHB, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans and all other
obligations and liabilities of IHB to the Administrative Agent or to any IHB
Lender (or, in the case of Interest Rate Protection Agreements (as defined in
the IHB
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Credit Agreement), any affiliate of any IHB Lender), 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, the IHB Credit
Agreement, any IHB Notes, any Interest Rate Protection Agreement (as defined in
the IHB Credit Agreement) entered into with any counterparty thereto who was an
IHB Lender (or any affiliate of any IHB Lender) at the time such Interest Rate
Protection Agreement was entered into or any other document made, delivered or
given in connection therewith, whether on account of principal, interest, fees,
indemnities, costs, expenses (including, without limitation, all fees, charges
and disbursements of counsel to the Administrative Agent or to any IHB Lender
that is required to be paid by IHB pursuant to the IHB Credit Agreement) or
otherwise.
"IHB SECURED PARTIES": (i) the IHB Lenders, (ii) the Administrative
Agent, (iii) the syndication agent named in the IHB Credit Agreement, (iv) the
documentation agent named in the IHB Credit Agreement, (v) each counterparty to
an Interest Rate Protection Agreement (as defined in the IHB Credit Agreement)
entered into with IHB if such counterparty was an IHB Lender at the time the
Interest Rate Protection Agreement (as defined in the IHB Credit Agreement) was
entered into, (vi) the beneficiaries of each indemnification obligation
undertaken by any Grantor under any IHB Loan Document and (vii) the successors
and assigns of each of the foregoing.
"INTELLECTUAL PROPERTY": the collective reference to the Copyrights,
the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks and the
Trademark Licenses.
"INVESTMENT PROPERTY": all Securities (whether certificated or
uncertificated), Security Entitlements, Securities Accounts, Commodity Contracts
and Commodity Accounts of any Grantor, whether now owned or hereafter acquired
by any Grantor.
"ISSUERS": the collective reference to each issuer of a Pledged
Security.
"LICENSE": any Patent License, Trademark License, Copyright License or
other license or sublicense to which any Grantor is a party, including those
listed on SCHEDULE 6 (other than those license agreements in existence on the
date hereof and listed on SCHEDULE 6 and those license agreements entered into
after the date hereof, which by their terms prohibit assignment or a grant of a
security interest by such Grantor as licensee thereunder, including as provided
by Section 8.17 hereof).
"LOANS": (i) in the case of the LIN Lenders, as defined in the LIN
Credit Agreement, and (ii) in the case of the IHB Lenders, as defined in the IHB
Credit Agreement.
"OBLIGATIONS": (i) in the case of the Borrower, the Borrower
Obligations, (ii) in the case of IHB, the IHB Obligations, and (iii) in the case
of each Guarantor, its Guarantor Obligations.
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"PATENTS": (i) all letters patent of the United States or any other
country and all reissues and extensions thereof, including, without limitation,
any of the foregoing referred to in SCHEDULE 6, (ii) all applications for
letters patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, including, without limitation,
any of the foregoing referred to in SCHEDULE 6, and (iii) all rights to obtain
any reissues or extensions of the foregoing.
"PATENT LICENSE": all agreements, whether written or oral, providing
for the grant by or to any Grantor of any right to manufacture, use or sell any
invention covered in whole or in part by a Patent, including, without
limitation, any of the foregoing referred to in SCHEDULE 6.
"PLEDGED DEBT SECURITIES": (i) the debt securities listed opposite the
name of the applicable Grantor on SCHEDULE 2 hereto, (ii) any debt securities in
the future issued to such Grantor and (iii) the promissory notes and any other
instruments evidencing such debt securities.
"PLEDGED SECURITIES": the collective reference to the Pledged Debt
Securities and the Pledged Stock.
"PLEDGED STOCK": the shares of Capital Stock listed on SCHEDULE 2,
together with any other shares, stock certificates, options or rights of any
nature whatsoever in respect of the Capital Stock of any Person that may be
issued or granted to, or held by, any Grantor while this Agreement is in effect.
"PROCEEDS": all "proceeds" as such term is defined in Section 9-306(l)
of the Uniform Commercial Code in effect in the State of New York on the date
hereof and, in any event, shall include, without limitation, all dividends or
other income from the Pledged Securities, collections thereon or distributions
or payments with respect thereto.
"RECEIVABLE": any right to payment for goods sold or leased or for
services rendered, whether or not such right is evidenced by an Instrument or
Chattel Paper and whether or not it has been earned by performance (including,
without limitation, any Account).
"SECURED PARTIES": the Borrower Secured Parties and the IHB Secured
Parties.
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"SECURITIES": any obligations of an issuer or any shares,
participations or other interests in an issuer or in property or an enterprise
of an issuer which (i) are represented by a certificate representing a security
in bearer or registered form, or the transfer of which may be registered upon
books maintained for that purpose by or on behalf of the issuer, (ii) are one of
a class or series or by its terms is divisible into a class or series of shares,
participations, interests or obligations and (iii)(A) are, or are of a type,
dealt with or trade on securities exchanges or securities markets or (B) are a
medium for investment and by their terms expressly provide that they are a
security governed by Article 8 of the Uniform Commercial Code.
"SECURITIES ACCOUNT": an account to which a Financial Asset is or may
be credited in accordance with an agreement under which the Person maintaining
the account undertakes to treat the Person for whom the account is maintained as
entitled to exercise rights that comprise the Financial Asset.
"SECURITIES ACT": the Securities Act of 1933, as amended.
"SECURITY ENTITLEMENTS": the rights and property interests of an
Entitlement Holder with respect to a Financial Asset.
"SECURITY INTERMEDIARY": (i) a clearing corporation or (ii) a Person,
including a bank or broker, that in the ordinary course of its business
maintains securities accounts for others and is acting in that capacity.
"TRADEMARK LICENSE": any agreement, whether written or oral, providing
for the grant by or to any Grantor of any right to use any Trademark, including,
without limitation, any of the foregoing referred to in SCHEDULE 6.
"TRADEMARKS": (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, including, without limitation, any of the foregoing
referred to in SCHEDULE 6, and (ii) the right to obtain all renewals thereof.
"UNDELIVERED INSTRUMENTS": as defined in Section 4.8.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) The words "hereof", "herein",
"hereto" and "hereunder" and words of similar import when used in this Agreement
shall
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refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof, when used in relation to a Grantor, shall refer to such
Grantor's Collateral or the relevant part thereof.
(d) For the purposes of this Agreement, each reference to Collateral
or to any relevant type or item of Property constituting Collateral shall be
deemed to exclude any Station License.
SECTION 2. GUARANTEE
2.1 GUARANTEE OF BORROWER OBLIGATIONS. (a) Each of the Borrower
Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantees to the Administrative Agent, for the ratable benefit of the Borrower
Secured Parties and their respective successors, endorsees, transferees and
assigns, the prompt and complete payment and performance by the Borrower when
due (whether at the stated maturity, by acceleration or otherwise) of the
Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Borrower Guarantor hereunder and
under the other Loan Documents shall in no event exceed the amount which can be
guaranteed by such Borrower Guarantor under applicable federal and state laws
relating to the insolvency of debtors (after giving effect to the right of
contribution established in Section 2.1.1).
(c) Each Borrower Guarantor agrees that the Borrower Obligations may
at any time and from time to time exceed the amount of the liability of such
Borrower Guarantor hereunder without impairing the guarantee contained in this
Section 2.1 or affecting the rights and remedies of the Administrative Agent or
any Borrower Secured Party hereunder.
(d) The guarantee contained in this Section 2.1 shall remain in full
force and effect until all the Borrower Obligations and the obligations of each
Borrower Guarantor under the guarantee contained in this Section 2.1 shall have
been satisfied by payment in full, no Letter of Credit shall be outstanding and
the Borrower Commitments shall be terminated, notwithstanding that from time to
time during the term of the LIN Credit Agreement the Borrower may be free from
any Borrower Obligations.
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(e) No payment made by the Borrower, any of the Borrower Guarantors,
any other guarantor or any other Person or received or collected by the
Administrative Agent or any Borrower Secured Party from the Borrower, any of the
Borrower 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 Borrower Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of
any Borrower Guarantor hereunder which shall, notwithstanding any such payment
(other than any payment made by such Borrower Guarantor in respect of the
Borrower Obligations or any payment received or collected from such Guarantor in
respect of the Borrower Obligations), remain liable for the Borrower Obligations
up to the maximum liability of such Borrower Guarantor hereunder until, subject
to Section 2.1.5, the Borrower Obligations are paid in full, no Letter of Credit
shall be outstanding and the Borrower Commitments are terminated.
2.1.1 RIGHT OF CONTRIBUTION. Each Borrower Guarantor hereby agrees
that to the extent that a Borrower Guarantor shall have paid more than its
proportionate share of any payment made hereunder, such Borrower Guarantor shall
be entitled to seek and receive contribution from and against any other Borrower
Guarantor hereunder which has not paid its proportionate share of such payment.
Each Borrower Guarantor's right of contribution shall be subject to the terms
and conditions of Section 2.1.2. The provisions of this Section 2.1.1 shall in
no respect limit the obligations and liabilities of any Borrower Guarantor to
the Administrative Agent and the Borrower Secured Parties, and each Borrower
Guarantor shall remain liable to the Administrative Agent and the Borrower
Secured Parties for the full amount guaranteed by such Borrower Guarantor
hereunder.
2.1.2 NO SUBROGATION. Notwithstanding any payment made by any Borrower
Guarantor hereunder or any set-off or application of funds of any Borrower
Guarantor by the Administrative Agent or any Borrower Secured Party, no Borrower
Guarantor shall be entitled to be subrogated to any of the rights of the
Administrative Agent or any Borrower Secured Party against the Borrower or any
other Borrower Guarantor or any collateral security or guarantee or right of
offset held by the Administrative Agent or any Borrower Secured Party for the
payment of the Borrower Obligations, nor shall any Borrower Guarantor seek or be
entitled to seek any contribution or reimbursement from the Borrower or any
other Borrower Guarantor in respect of payments made by such Borrower Guarantor
hereunder, until all amounts owing to the Administrative Agent and the Borrower
Secured Parties by the Borrower on account of the Borrower Obligations are paid
in full, no Letter of Credit shall be outstanding and the Borrower Commitments
are terminated. If any amount shall be paid to any Borrower Guarantor on account
of such subrogation rights at any time when all of the Borrower Obligations
shall not have been paid in full, such amount shall be held by such Borrower
Guarantor in trust for the Administrative Agent and the Borrower Secured
Parties, segregated from other funds of such Borrower Guarantor, and shall,
forthwith upon receipt by such Borrower Guarantor, be turned over to the
Administrative Agent in the
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exact form received by such Borrower Guarantor (duly indorsed by such Borrower
Guarantor to the Administrative Agent, if required), to be applied against the
Borrower Obligations, whether matured or unmatured, in accordance with the LIN
Credit Agreement.
2.1.3 AMENDMENTS, ETC. WITH RESPECT TO THE BORROWER OBLIGATIONS. Each
Borrower Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Borrower Guarantor and without
notice to or further assent by any Borrower Guarantor, any demand for payment of
any of the Borrower Obligations made by the Administrative Agent or any Borrower
Secured Party may be rescinded by the Administrative Agent or such Borrower
Secured Party and any of the Borrower Obligations continued, and the Borrower
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 Borrower Secured Party, and the LIN Credit
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 appropriate
Borrower Secured Parties, as the case may be, in accordance with the LIN Credit
Agreement) 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
Borrower Secured Party for the payment of the Borrower Obligations may be sold,
exchanged, waived, surrendered or released in accordance with the terms of the
LIN Credit Agreement. Neither the Administrative Agent nor any Borrower Secured
Party shall have any obligation to protect, secure, perfect or insure any Lien
at any time held by it as security for the Borrower Obligations or for the
guarantee contained in this Section 2.1 or any property subject thereto.
2.1.4 GUARANTEE ABSOLUTE AND UNCONDITIONAL. Each Borrower Guarantor
waives any and all notice of the creation, renewal, extension or accrual of any
of the Borrower Obligations and notice of or proof of reliance by the
Administrative Agent or any Borrower Secured Party upon the guarantee contained
in this Section 2.1 or acceptance of the guarantee contained in this Section
2.1; the Borrower 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 2.1; and all
dealings between the Borrower and any of the Borrower Guarantors, on the one
hand, and the Administrative Agent and the Borrower Secured Parties, on the
other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon the guarantee contained in this Section 2.1. Each
Borrower Guarantor waives diligence, presentment, protest, demand for payment
and notice of default or nonpayment to or upon the Borrower or any of the
Borrower Guarantors with respect to the Borrower Obligations. Each Borrower
Guarantor understands and agrees that the guarantee contained in this Section
2.1 shall be construed as a continuing, absolute and
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unconditional guarantee of payment without regard to (a) the validity or
enforceability of the LIN Credit Agreement, any other Loan Document, any of the
Borrower 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 Borrower Secured Party, (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 Borrower or any other Person
against the Administrative Agent or any Borrower Secured Party, other than
payment in full of the Borrower Obligations (except as set forth elsewhere in
this Agreement), or (c) any other circumstance whatsoever (with or without
notice to or knowledge of the Borrower or such Borrower Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrower for the Borrower Obligations, or of such Borrower
Guarantor under the guarantee contained in this Section 2.1, in bankruptcy or in
any other instance (other than a defense of payment or performance). When making
any demand hereunder or otherwise pursuing its rights and remedies hereunder
against any Borrower Guarantor, the Administrative Agent or any Borrower Secured
Party 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 Borrower,
any other Borrower Guarantor or any other Person or against any collateral
security or guarantee for the Borrower Obligations or any right of offset with
respect thereto, and any failure by the Administrative Agent or any Borrower
Secured Party to make any such demand, to pursue such other rights or remedies
or to collect any payments from the Borrower, any other Borrower 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 Borrower, any other
Borrower Guarantor or any other Person or any such collateral security,
guarantee or right of offset, shall not relieve any Borrower Guarantor of any
obligation or liability hereunder, 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 Borrower Secured Party against any Borrower
Guarantor. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
2.1.5 REINSTATEMENT. The guarantee contained in this Section 2.1 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 Borrower Obligations is rescinded or
must otherwise be restored or returned by the Administrative Agent or any
Borrower Secured Party upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Borrower or any Borrower Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or any Borrower Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
2.1.6 PAYMENTS. Each Borrower Guarantor hereby guarantees that
payments hereunder will be paid to the Administrative Agent without set-off or
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counterclaim in Dollars at the office of the Administrative Agent located at 270
Park Avenue, New York, New York 10017.
2.2 GUARANTEE OF IHB OBLIGATIONS. (a) Each of the IHB Guarantors
hereby, jointly and severally, unconditionally and irrevocably, guarantees to
the Administrative Agent, for the ratable benefit of the IHB Secured Parties and
their respective successors, endorsees, transferees and assigns, the prompt and
complete payment and performance by IHB when due (whether at the stated
maturity, by acceleration or otherwise) of the IHB Obligations.
(b) Anything herein or in any other IHB Loan Document to the contrary
notwithstanding, the maximum liability of each IHB Guarantor hereunder and under
the other IHB Loan Documents shall in no event exceed the amount which can be
guaranteed by such IHB Guarantor under applicable federal and state laws
relating to the insolvency of debtors (after giving effect to the right of
contribution established in Section 2.2.1).
(c) Each IHB Guarantor agrees that the IHB Obligations may at any time
and from time to time exceed the amount of the liability of such IHB Guarantor
hereunder without impairing the guarantee contained in this Section 2.2 or
affecting the rights and remedies of the Administrative Agent or any IHB Secured
Party hereunder.
(d) The guarantee contained in this Section 2.2 shall remain in full
force and effect until all the IHB Obligations and the obligations of each IHB
Guarantor under the guarantee contained in this Section 2.2 shall have been
satisfied by payment in full and the IHB Commitments shall be terminated,
notwithstanding that from time to time during the term of the IHB Credit
Agreement IHB may be free from any IHB Obligations.
(e) No payment made by IHB, any of the IHB Guarantors, any other
guarantor or any other Person or received or collected by the Administrative
Agent or any IHB Secured Party from IHB, any of the IHB 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 IHB Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of any IHB Guarantor hereunder
which shall, notwithstanding any such payment (other than any payment made by
such IHB Guarantor in respect of the IHB Obligations or any payment received or
collected from such IHB Guarantor in respect of the IHB Obligations), remain
liable for the IHB Obligations up to the maximum liability of such IHB Guarantor
hereunder until, subject to Section 2.2.5, the IHB Obligations are paid in full
and the IHB Commitments are terminated.
2.2.1 RIGHT OF CONTRIBUTION. Each IHB Guarantor hereby agrees that to
the extent that an IHB Guarantor shall have paid more than its proportionate
share of any payment made hereunder, such IHB Guarantor shall be entitled to
seek and receive
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contribution from and against any other IHB Guarantor hereunder which has not
paid its proportionate share of such payment. Each IHB Guarantor's right of
contribution shall be subject to the terms and conditions of Section 2.2.2. The
provisions of this Section 2.2.1 shall in no respect limit the obligations and
liabilities of any IHB Guarantor to the Administrative Agent and the IHB Secured
Parties, and each IHB Guarantor shall remain liable to the Administrative Agent
and the IHB Secured Parties for the full amount guaranteed by such IHB Guarantor
hereunder.
2.2.2 NO SUBROGATION. Notwithstanding any payment made by any IHB
Guarantor hereunder or any set-off or application of funds of any IHB Guarantor
by the Administrative Agent or any IHB Secured Party, no IHB Guarantor shall be
entitled to be subrogated to any of the rights of the Administrative Agent or
any IHB Secured Party against IHB or any other IHB Guarantor or any collateral
security or guarantee or right of offset held by the Administrative Agent or any
IHB Secured Party for the payment of the IHB Obligations, nor shall any IHB
Guarantor seek or be entitled to seek any contribution or reimbursement from IHB
or any other IHB Guarantor in respect of payments made by such IHB Guarantor
hereunder, until all amounts owing to the Administrative Agent and the IHB
Secured Parties by IHB on account of the IHB Obligations are paid in full and
the IHB Commitments are terminated. If any amount shall be paid to any IHB
Guarantor on account of such subrogation rights at any time when all of the IHB
Obligations shall not have been paid in full, such amount shall be held by such
IHB Guarantor in trust for the Administrative Agent and the IHB Secured Parties,
segregated from other funds of such IHB Guarantor, and shall, forthwith upon
receipt by such IHB Guarantor, be turned over to the Administrative Agent in the
exact form received by such IHB Guarantor (duly indorsed by such IHB Guarantor
to the Administrative Agent, if required), to be applied against the IHB
Obligations, whether matured or unmatured, in accordance with the IHB Credit
Agreement.
2.2.3 AMENDMENTS, ETC. WITH RESPECT TO THE IHB OBLIGATIONS. Each IHB
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any IHB Guarantor and without notice to or further
assent by any IHB Guarantor, any demand for payment of any of the IHB
Obligations made by the Administrative Agent or any IHB Secured Party may be
rescinded by the Administrative Agent or such IHB Secured Party and any of the
IHB Obligations continued, and the IHB 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
IHB Secured Party, and the IHB Credit Agreement and the other IHB 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 appropriate IHB Secured Parties, as the case may be, in
accordance with the IHB Credit Agreement) may deem advisable from time to time,
and any collateral security, guarantee
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or right of offset at any time held by the Administrative Agent or any IHB
Secured Party for the payment of the IHB Obligations may be sold, exchanged,
waived, surrendered or released in accordance with the terms of the IHB Credit
Agreement. Neither the Administrative Agent nor any IHB Secured Party shall have
any obligation to protect, secure, perfect or insure any Lien at any time held
by it as security for the IHB Obligations or for the guarantee contained in this
Section 2.2 or any property subject thereto.
2.2.4 GUARANTEE ABSOLUTE AND UNCONDITIONAL. Each IHB Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
IHB Obligations and notice of or proof of reliance by the Administrative Agent
or any IHB Secured Party upon the guarantee contained in this Section 2.2 or
acceptance of the guarantee contained in this Section 2.2; the IHB 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 2.2; and all dealings between IHB and any of
the IHB Guarantors, on the one hand, and the Administrative Agent and the IHB
Secured Parties, on the other hand, likewise shall be conclusively presumed to
have been had or consummated in reliance upon the guarantee contained in this
Section 2.2. Each IHB Guarantor waives diligence, presentment, protest, demand
for payment and notice of default or nonpayment to or upon IHB or any of the IHB
Guarantors with respect to the IHB Obligations. Each IHB Guarantor understands
and agrees that the guarantee contained in this Section 2.2 shall be construed
as a continuing, absolute and unconditional guarantee of payment without regard
to (a) the validity or enforceability of the IHB Credit Agreement, any other IHB
Loan Document, any of the IHB 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 IHB Secured Party, (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 IHB or any
other Person against the Administrative Agent or any IHB Secured Party, other
than payment in full of the IHB Obligations (except as set forth elsewhere in
this Agreement), or (c) any other circumstance whatsoever (with or without
notice to or knowledge of IHB or such IHB Guarantor) which constitutes, or might
be construed to constitute, an equitable or legal discharge of IHB for the IHB
Obligations, or of such IHB Guarantor under the guarantee contained in this
Section 2.2, in bankruptcy or in any other instance (other than a defense of
payment or performance). When making any demand hereunder or otherwise pursuing
its rights and remedies hereunder against any IHB Guarantor, the Administrative
Agent or any IHB Secured Party 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 IHB, any other IHB Guarantor or any other Person or against any
collateral security or guarantee for the IHB Obligations or any right of offset
with respect thereto, and any failure by the Administrative Agent or any IHB
Secured Party to make any such demand, to pursue such other rights or remedies
or to collect any payments from IHB, any other IHB 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 IHB, any
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other IHB Guarantor or any other Person or any such collateral security,
guarantee or right of offset, shall not relieve any IHB Guarantor of any
obligation or liability hereunder, 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 IHB Secured Party against any IHB Guarantor. For the
purposes hereof "demand" shall include the commencement and continuance of any
legal proceedings.
2.2.5 REINSTATEMENT. The guarantee contained in this Section 2.2 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 IHB Obligations is rescinded or must
otherwise be restored or returned by the Administrative Agent or any IHB Secured
Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of IHB or any IHB Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, IHB or any IHB Guarantor or any substantial part of its property,
or otherwise, all as though such payments had not been made.
2.2.6 PAYMENTS. Each IHB Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in Dollars at the office of the Administrative Agent located at 270
Park Avenue, New York, New York 10017.
SECTION 3. GRANT OF SECURITY INTEREST
Subject to Section 8.17 hereof, each Grantor hereby assigns and
transfers to the Administrative Agent, and hereby grants to the Administrative
Agent, its successors and assigns, for the ratable benefit of the Secured
Parties, a security interest in, all of the following property now owned or at
any time hereafter acquired by such Grantor or in which such Grantor now has or
at any time in the future may acquire any right, title or interest
(collectively, the "COLLATERAL"), as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of such Grantor's Obligations:
(a) all Accounts;
(b) all cash and cash accounts;
(c) all Chattel Paper;
(d) all Documents;
(e) all Equipment;
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(f) all Fixtures
(g) all General Intangibles;
(h) all Instruments;
(i) all Intellectual Property;
(j) all Inventory;
(k) all Investment Property;
(l) all Pledged Securities;
(m) all books and records pertaining to the Collateral;
(n) all Undelivered Instruments; and
(o) to the extent not otherwise included, all Proceeds and products
of any and all of the foregoing and all collateral security and guarantees given
by any Person with respect to any of the foregoing.
"Collateral" shall not include, with respect to any Grantor, any
General Intangible, Intellectual Property or Investment Property to the extent
the grant by such Grantor of a security interest pursuant to this Agreement in
its rights under such General Intangible, Intellectual Property or Investment
Property, as the case may be, is prohibited or restricted by such General
Intangible, Intellectual Property or Investment Property, as the case may be,
and the consent of applicable Persons has not been obtained, PROVIDED that the
foregoing limitation shall not affect, limit, restrict or impair the grant by
such Grantor of a security interest pursuant to this Agreement in any Account or
any money or other amounts due or to become due under any such General
Intangible, Intellectual Property or Investment Property, as the case may be, to
the extent provided in Section 9-318 of the Code as in effect on the date
hereof.
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SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Borrower Secured Parties to
enter into the LIN Credit Agreement and to induce the Borrower Secured Parties
to make their respective extensions of credit to the Borrower thereunder and to
induce the Administrative Agent and the IHB Secured Parties to enter into the
IHB Credit Agreement and to induce the IHB Secured Parties to make their
respective extensions of credit to IHB thereunder, each Grantor hereby
represents and warrants to the Administrative Agent and each Secured Party both
on the date hereof and (except in relation to any representation or warranty
that expressly relates to an earlier date, which representation and warranty
shall have been true and correct in all material respects as of such earlier
date) on the date of any borrowing under the LIN Credit Agreement or the IHB
Credit Agreement, as applicable, that:
4.1 REPRESENTATIONS IN LIN CREDIT AGREEMENT. In the case of each
Guarantor, the representations and warranties set forth in Section 4 of the LIN
Credit Agreement as they relate to such Guarantor or to the Loan Documents or
Transaction Documents to which such Guarantor is a party, each of which is
hereby incorporated herein by reference, are true and correct in all material
respects, and the Administrative Agent and each Secured Party shall be entitled
to rely on each of them as if they were fully set forth herein, PROVIDED that
each reference in each such representation and warranty to (a) the Borrower's
knowledge shall, for the purposes of this Section 4.1, be deemed to be reference
to each Guarantor's knowledge, (b) the term "Transaction Documents" is deemed to
include the "Transaction Documents" as defined in the IHB Credit Agreement and
(c) the phrase "transactions contemplated by this Agreement or the other Loan
Documents", to the term "Transactions" or to any similar term or description is
deemed to include the term "Transactions" as defined in the IHB Credit Agreement
and the other transactions contemplated by the IHB Credit Agreement.
4.2 TITLE. NO OTHER LIENS. Except for the security interest granted to
the Administrative Agent for the ratable benefit of the Secured Parties pursuant
to this Agreement and the other Liens expressly permitted to exist on the
Collateral by the LIN Credit Agreement, such Grantor owns each item of the
Collateral free and clear of any and all Liens or claims of others. No financing
statement or other public notice with respect to all or any part of the
Collateral is on file or of record in any public office, except such as have
been filed in favor of the Administrative Agent, for the ratable benefit of the
Secured Parties, pursuant to this Agreement or as are expressly permitted by the
LIN Credit Agreement.
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4.3 PERFECTED FIRST PRIORITY LIENS. The security interests granted
pursuant to this Agreement (a) that are capable of perfection pursuant to the
Code upon completion of the filings and other actions specified on SCHEDULE 3
(which, in the case of all filings and other documents referred to on said
Schedule, have been delivered to the Administrative Agent in completed and duly
executed form) will constitute valid perfected security interests in all of the
Collateral in favor of the Administrative Agent, for the ratable benefit of the
Secured Parties, as collateral security for such Grantor's Obligations,
enforceable in accordance with the terms hereof against all creditors of such
Grantor and any Persons purporting to purchase any Collateral from such Grantor
and (b) are prior to all other Liens on the Collateral in existence on the date
hereof except for Liens expressly permitted by the LIN Credit Agreement.
4.4 CHIEF EXECUTIVE OFFICE. On the date hereof, such Grantor's
jurisdiction of organization and the location of such Grantor's chief executive
office or sole place of business, as applicable, is specified on SCHEDULE 4.
4.5 INVENTORY AND EQUIPMENT. On the date hereof, the Inventory and the
Equipment (other than mobile goods) are kept at the locations listed on SCHEDULE
5.
4.6 FARM PRODUCTS. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
4.7 PLEDGED SECURITIES. (a) The shares of Pledged Stock pledged by
such Grantor hereunder and delivered to the Administrative Agent on or prior to
the date hereof constitute all the issued and outstanding shares of all classes
of the Capital Stock of each Issuer.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
(c) The Pledged Debt Securities pledged by such Grantor hereunder
delivered to the Administrative Agent on or prior to the date hereof constitute
all of the Pledged Debt Securities held by such Grantor.
(d) Each of the Pledged Debt Securities in existence on the date
hereof are set forth in SCHEDULE 2 and each of the Pledged Debt Securities
constitutes, to the knowledge of the Grantor that is the payee thereof, the
legal, valid and binding obligation of the obligor with respect thereto,
enforceable in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
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(e) Such Grantor is the record and beneficial owner of, and has good
and marketable title to, the Pledged Securities pledged by it hereunder, free of
any and all Liens or options in favor of, or claims of, any other Person, except
the security interest created by this Agreement.
4.8 RECEIVABLES. No amount payable to the Grantors under or in
connection with any Receivable is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Administrative Agent (collectively,
"UNDELIVERED INSTRUMENTS") in excess of $1,000,000.
4.9 INTELLECTUAL PROPERTY. (a) SCHEDULE 6 lists all Intellectual
Property owned or licensed by such Grantor in its own name on the date hereof.
(b) To such Grantor's knowledge, all material Intellectual Property is
on the date hereof valid, subsisting, unexpired, enforceable and has not been
abandoned.
(c) Except as set forth in SCHEDULE 6, none of the material
Intellectual Property is on the date hereof the subject of any licensing or
franchise agreement pursuant to which such Grantor is the licensor or
franchisor.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the validity of, or
such Grantor's rights in, any Intellectual Property in any respect that could
reasonably be expected to have a Material Adverse Effect.
(e) No action or proceeding is pending on the date hereof seeking to
limit, cancel or question the validity, or such Grantor's ownership, of any
Intellectual Property which, if adversely determined, would have a Material
Adverse Effect.
4.10 FINANCIAL CONDITION. (a) The audited consolidated financial
statements of Holdings and its consolidated Subsidiaries as of and for the
fiscal year ending December 31, 1999, reported on by PriceWaterhouseCoopers,
present fairly in all material respects the consolidated financial condition of
Holdings and its consolidated Subsidiaries and the results of operations and
cash flows as of such date and for such period. All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the period involved (except
as approved by the relevant firm of accountants and disclosed therein). The most
recent 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.
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(b) Since the date of the most recent audited financial statements
delivered pursuant to subsection 4.10(a) there has been no (i) development or
event which has had or could reasonably be expected to have a Material Adverse
Effect or (ii) sale, transfer or other disposition by any Grantor of any
material part of its business or Property.
4.11 SOLVENCY. Each Grantor is, and after giving effect to the
Transactions (as defined in the IHB Credit Agreement) and the Incurrence of all
Indebtedness and obligations being Incurred in connection therewith will be,
Solvent.
4.12 SECURITY DOCUMENTS. (a) This Agreement is effective to create in
favor of the Administrative Agent, for the benefit of the Secured Parties, a
legal, valid and enforceable security interest in the Collateral described
herein and the proceeds thereof. In the case of the Pledged Stock and the
Pledged Debt Securities, when stock certificates representing such Pledged Stock
or certificates representing such Pledged Debt Securities are delivered to the
Administrative Agent, or when financing statements in appropriate form are filed
in the offices specified on Schedule 3 hereto, and in the case of the other
Collateral described herein when financing statements in appropriate form are
filed in the offices specified on Schedule 3 hereto, this Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Grantors in such collateral and the proceeds thereof, as
security for the Obligations in each case prior and superior in right to any
other Person subject, except in the case of such Pledged Stock and the Pledged
Debt Securities, to Liens permitted by subsection 7.2 of the LIN Credit
Agreement.
(b) Each of the Mortgages is effective to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when the Mortgages are filed in the offices specified on Schedule
4.19(b) of the LIN Credit Agreement in accordance with subsection 10.17 of the
LIN Credit Agreement, each Mortgage shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the Grantors in the
Mortgaged Properties and the proceeds thereof, as security for the Obligations
in each case prior and superior in right to any other Person, subject to Liens
permitted by subsection 7.2 of the LIN Credit Agreement.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Administrative Agent and
the Secured Parties that, from and after the date of this Agreement until the
Obligations shall have been paid in full, no Letter of Credit shall be
outstanding and the Commitments shall have terminated:
5.1 COVENANTS IN LIN CREDIT AGREEMENT. In the case of each Guarantor,
such Guarantor shall take, or shall refrain from taking, as the case may be,
each action that
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is necessary to be taken or not taken, as the case may be, so that no Default or
Event of Default is caused by the failure to take such action or to refrain from
taking such action by such Guarantor or any of its Subsidiaries.
5.2 FINANCIAL STATEMENTS; CERTIFICATES; NOTICES. The Borrower shall
(a) furnish to the Administrative Agent and cause the Administrative Agent to
furnish to each IHB Lender that is not a LIN Lender, copies of all financial
statements, certificates, notices and other information that it is obliged to
provide to the Administrative Agent or to LIN Lenders pursuant to Section 6 of
the LIN Credit Agreement at the same time as such financial statements,
certificates, notices and other information are provided to the Administrative
Agent or the LIN Lenders, (b) afford each IHB Lender that is not a Lender the
same rights as afforded to the LIN Lenders under Section 6.6 of the LIN Credit
Agreement and (c) comply and cause each of its Subsidiaries to comply with
subsection 6.10 of the LIN Credit Agreement so that a perfected first priority
security interest in the Property referred to therein is created for the benefit
of the Secured Parties (and not just the LIN Lenders).
5.3 DELIVERY OF INSTRUMENTS AND CHATTEL PAPER. If the aggregate of all
amounts payable to the Grantors pursuant to Undelivered Instruments shall exceed
$5,000,000, such Undelivered Instruments, to the extent necessary to eliminate
such excess, shall be immediately delivered to the Administrative Agent duly
indorsed in a manner satisfactory to the Administrative Agent to be held as
Collateral pursuant to this Agreement.
5.4 INSURANCE. Each Grantor shall maintain insurance policies insuring
Inventory and Equipment pursuant to and in accordance with Section 6.5 of the
LIN Credit Agreement.
5.5 MAINTENANCE OF PERFECTED SECURITY INTEREST; FURTHER DOCUMENTATION.
(a) Such Grantor shall maintain the security interest created by this Agreement
as a perfected security interest having at least the priority described in
Section 4.3 and shall defend such security interest against the claims and
demands of all Persons whomsoever.
(b) Upon reasonable written request of the Administrative Agent, such
Grantor will furnish to the Administrative Agent, the LIN Lenders and the IHB
Lenders who are not also LIN Lenders from time to time statements and schedules
further identifying and describing the Collateral and such other reports in
connection with the Collateral as the Administrative Agent may reasonably
request, all in reasonable detail.
(c) At any time and from time to time, upon the written request of the
Administrative Agent and at the sole expense of such Grantor, such Grantor will
promptly and duly execute and deliver such further instruments and documents and
take such further actions as the Administrative Agent may reasonably request for
the purpose of
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obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted, including, without limitation, the filing of any
financing or continuation statements under the Code (or other similar laws) in
effect in any jurisdiction with respect to the security interests created
hereby.
5.6 CHANGES IN LOCATIONS, NAME, ETC. Such Grantor will not, except
upon not less than 15 days' prior written notice (or such shorter time as to
which the Administrative Agent may agree) to the Administrative Agent and
delivery to the Administrative Agent of all additional executed financing
statements and other documents reasonably requested by the Administrative Agent
to maintain the validity, perfection and priority of the security interests
provided for herein:
(a) permit any of the Inventory or Equipment (other than (i)
immaterial Inventory and Equipment and (ii) Inventory and Equipment in transit
in the ordinary course of business) to be kept at a location other than those
listed on SCHEDULE 5;
(b) change the location of its chief executive office or sole place of
business, as applicable, from that referred to in Section 4.4; or
(c) change its name, identity or corporate structure to such an extent
that any financing statement filed by the Administrative Agent in connection
with this Agreement would become misleading.
5.7 PLEDGED SECURITIES. (a) If such Grantor shall become entitled to
receive or shall receive any stock certificate (including, without limitation,
any certificate representing a stock dividend or a distribution in connection
with any reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights in respect of
the Capital Stock of any Issuer, whether in addition to, in substitution of, as
a conversion of, or in exchange for, any shares of the Pledged Stock, or
otherwise in respect thereof, such Grantor shall accept the same as the agent of
the Administrative Agent and the Secured Parties, hold the same in trust for the
Administrative Agent and the Secured Parties and deliver the same forthwith to
the Administrative Agent in the exact form received, duly indorsed by such
Grantor to the Administrative Agent, if required, together with an undated stock
power covering such certificate duly executed in blank by such Grantor to be
held by the Administrative Agent, subject to the terms hereof, as additional
collateral security for the Obligations. If an Event of Default shall have
occurred and be continuing, (i) any sums paid upon or in respect of the Pledged
Securities upon the liquidation or dissolution of any Issuer shall be paid over
to the Administrative Agent to be held by it hereunder as additional collateral
security for the Obligations and (ii) in case any distribution of capital shall
be made on or in respect of the Pledged Securities or any property shall be
distributed upon or with respect to the Pledged Securities pursuant to the
recapitalization or reclassification of the capital of any Issuer or pursuant to
the reorganization thereof, the property so distributed shall, unless
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otherwise subject to a perfected security interest in favor of the
Administrative Agent, be delivered to the Administrative Agent to be held by it
hereunder as additional collateral security for the Obligations. If any sums of
money or property so paid or distributed in respect of the Pledged Securities
shall be received by such Grantor, such Grantor shall, until such money or
property is paid or delivered to the Administrative Agent, hold such money or
property in trust for the Secured Parties, segregated from other funds of such
Grantor, as additional collateral security for the Obligations.
In the case of each Grantor which is an Issuer, such Issuer agrees
that (i) it will be bound by the terms of this Agreement relating to the Pledged
Securities issued by it and will comply with such terms insofar as such terms
are applicable to it, (ii) it will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 5.7(a) with
respect to the Pledged Securities issued by it and (iii) the terms of Sections
6.3(c) and 6.7 shall apply to it, MUTATIS MUTANDIS, with respect to all actions
that may be required of it pursuant to Section 6.3(c) or 6.7 with respect to the
Pledged Securities issued by it.
5.8 RECEIVABLES. (a) Other than in the ordinary course of business or
as otherwise permitted by the Loan Documents, such Grantor will not (i) grant
any extension of the time of payment of any Receivable, (ii) compromise or
settle any Receivable for less than the full amount thereof, (iii) release,
wholly or partially, any Person liable for the payment of any Receivable, (iv)
allow any credit or discount whatsoever on any Receivable or (v) amend,
supplement or modify any Receivable in any manner that could materially and
adversely affect the value thereof.
(b) Such Grantor will take all actions necessary to give notice
pursuant to the United States Assignment of Claims Act of 1940, as amended, or
such other analogous law if a material portion of the total amount of the
Receivables is owing from Governmental Authorities.
5.9 INTELLECTUAL PROPERTY. (a) Such Grantor (either itself or through
licensees) will (i) continue to use each material Trademark on each and every
trademark class of goods applicable to its current line as reflected in its
then-current catalogs, brochures and price lists in order to maintain such
Trademark in full force free from any claim of abandonment for non-use, (ii)
maintain as in the past the quality of products and services offered under each
material Trademark, (iii) use such Trademark with all appropriate notices of
registration and (iv) not (and not permit any licensee or sublicensee thereof
to) do any act or knowingly omit to do any act whereby any material Trademark
may become invalidated or impaired in any way.
(b) Such Grantor (either itself or through licensees) will not do any
act, or omit to do any act, whereby any material Patent may become forfeited,
abandoned or dedicated to the public.
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(c) Such Grantor (either itself or through licensees) will not (and
will not permit any licensee or sublicensee thereof to) do any act or knowingly
omit to do any act whereby any material portion of the Copyrights may become
invalidated. Such Grantor will not (either itself or through licensees) do any
act whereby any material portion of the Copyrights may fall into the public
domain.
(d) Such Grantor (either itself or through licensees) will not do any
act that knowingly uses a material Intellectual Property to infringe the
Intellectual Property rights of a third party.
(e) Such Grantor will notify the Administrative Agent and the Secured
Parties immediately if it knows, or has reason to know, that any application or
registration relating to any material Patent, Copyright or Trademark may become
abandoned or dedicated to the public, or of any adverse determination or
development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office, the U.S. Copyright Office or any court or tribunal in any
country) regarding such Grantor's ownership of, or the validity of, any material
Intellectual Property or such Grantor's right to register the same or to own and
maintain the same.
(f) Whenever such Grantor, either by itself or through any agent,
employee, licensee or designee, shall file an application for any Patent or
Trademark with the United States Patent and Trademark Office or any Copyright in
the U.S. Copyright Office or any similar office or agency in any other country
or any political subdivision thereof, such Grantor shall report such filing to
the Administrative Agent within five Business Days after the last day of the
fiscal quarter in which such filing occurs. Upon written request of the
Administrative Agent, such Grantor shall execute and deliver, and have recorded,
any and all agreements, instruments, documents, and papers as the Administrative
Agent may reasonably request to evidence the Administrative Agent's security
interest in any such Copyright, Patent or Trademark and the goodwill and general
intangibles of such Grantor relating thereto or represented thereby.
(g) Such Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office, the U.S. Copyright Office or any similar office or agency
in any other country or any political subdivision thereof, to maintain each
registration of the material Intellectual Property, including, without
limitation, filing of applications for renewal, affidavits of use and affidavits
of incontestability.
(h) In the event that any material Intellectual Property is infringed,
misappropriated or diluted by a third party, such Grantor shall (i) take such
actions as such Grantor shall reasonably deem appropriate under the
circumstances to protect such
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Intellectual Property and (ii) if such Intellectual Property is of material
economic value, promptly notify the Administrative Agent and the Secured Parties
after it learns thereof.
SECTION 6. REMEDIAL PROVISIONS
6.1 CERTAIN MATTERS RELATED TO RECEIVABLES. (a) The Administrative
Agent hereby authorizes each Grantor to collect such Grantor's Receivables, and
the Administrative Agent may curtail or terminate said authority at any time
after the occurrence and during the continuance of an Event of Default. If
required by the Administrative Agent at any time after the occurrence and during
the continuance of an Event of Default, any payments of Receivables, when
collected by any Grantor, (i) shall be forthwith (and, in any event, within two
Business Days) deposited by such Grantor in the exact form received, duly
indorsed by such Grantor to the Administrative Agent if required, in a
Collateral Account maintained under the sole dominion and control of the
Administrative Agent, subject to withdrawal by the Administrative Agent for the
account of the Secured Parties only as provided in Section 6.5, and (ii) until
so turned over, shall be held by such Grantor in trust for the Administrative
Agent and the Secured Parties, segregated from other funds of such Grantor. Each
such deposit of Proceeds of Receivables shall be accompanied by a report
identifying in reasonable detail the nature and source of the payments included
in the deposit.
(b) At the Administrative Agent's request, each Grantor shall deliver
to the Administrative Agent, all original and other documents evidencing, and
relating to, the agreements and transactions which gave rise to the then
existing Receivables, including, without limitation, all original orders,
invoices and shipping receipts.
6.2 COMMUNICATIONS WITH OBLIGORS, GRANTORS REMAIN LIABLE. (a) The
Administrative Agent in its own name or in the name of others may at any time
after the occurrence and during the continuance of an Event of Default
communicate with obligors under the Receivables to verify with them to the
Administrative Agent's reasonable satisfaction the existence, amount and terms
of any Receivables.
(b) Upon the request of the Administrative Agent at any time after the
occurrence and during the continuance of an Event of Default, each Grantor shall
notify obligors on the Receivables that the Receivables have been assigned to
the Administrative Agent for the ratable benefit of the Secured Parties and that
payments in respect thereof shall be made directly to the Administrative Agent.
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(c) Anything herein to the contrary notwithstanding, each Grantor
shall remain liable under each of the Receivables to observe and perform all the
conditions and obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise thereto. Neither the
Administrative Agent nor any Secured Party shall have any obligation or
liability under any Receivable (or any agreement giving rise thereto) by reason
of or arising out of this Agreement or the receipt by the Administrative Agent
or any Secured Party of any payment relating thereto, nor shall the
Administrative Agent or any Secured Party be obligated in any manner to perform
any of the obligations of any Grantor under or pursuant to any Receivable (or
any agreement giving rise thereto) to make any payment, to make any inquiry as
to the nature or the sufficiency of any payment received by it or as to the
sufficiency of any performance by any party thereunder, to present or file any
claim, to take any action to enforce any performance or to collect the payment
of any amounts which may have been assigned to it or to which it may be entitled
at any time or times.
6.3 PLEDGED SECURITIES. (a) Unless an Event of Default shall have
occurred and be continuing and the Administrative Agent shall have given notice
to the relevant Grantor of the Administrative Agent's intent to exercise its
corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted
to receive all cash dividends paid in respect of the Pledged Stock and all
payments made in respect of the Pledged Debt Securities, in each case paid in
the normal course of business of the relevant Issuer, to the extent permitted in
the LIN Credit Agreement, and to exercise all voting and corporate rights with
respect to the Pledged Securities; PROVIDED, HOWEVER, that no vote shall be cast
or corporate right exercised or other action taken which, in the Administrative
Agent's reasonable judgment would impair the Collateral or which would be
inconsistent with or result in any violation of any provision of the LIN Credit
Agreement, this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give written notice of its intent to exercise such
rights to the relevant Grantor or Grantors, (i) the Administrative Agent shall
have the right to receive any and all cash dividends, payments or other Proceeds
paid in respect of the Pledged Securities and make application thereof to the
Obligations in accordance with Section 6.9, and (ii) any or all of the Pledged
Securities shall be registered in the name of the Administrative Agent or its
nominee, and the Administrative Agent or its nominee may thereafter exercise (x)
all voting, corporate and other rights pertaining to such Pledged Securities at
any meeting of shareholders of the relevant Issuer or Issuers or otherwise and
(y) any and all rights of conversion, exchange and subscription and any other
rights, privileges or options pertaining to such Pledged Securities as if it
were the absolute owner thereof (including, without limitation, the right to
exchange at its discretion any and all of the Pledged Securities upon the
merger, consolidation, reorganization, recapitalization or other fundamental
change in the corporate structure of any Issuer, or upon the exercise by any
Grantor or the Administrative Agent of any right, privilege or option pertaining
to
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such Pledged Securities, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Securities with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Administrative Agent may determine), all without liability
except to account for property actually received by it, but the Administrative
Agent shall have no duty to any Grantor to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in so
doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of any
Pledged Securities pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Administrative Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Securities directly to the Administrative Agent.
6.4 PROCEEDS TO BE TURNED OVER TO ADMINISTRATIVE AGENT. In addition to
the rights of the Administrative Agent and the Secured Parties specified in
Section 6.1 with respect to payments of Receivables, if an Event of Default
shall occur and be continuing, all Proceeds received by any Grantor consisting
of cash, checks and other near-cash items shall be held by such Grantor in trust
for the Administrative Agent and the Secured Parties, segregated from other
funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be
turned over to the Administrative Agent in the exact form received by such
Grantor (duly indorsed by such Grantor to the Administrative Agent, if
required). All Proceeds received by the Administrative Agent hereunder shall be
held by the Administrative Agent in a Collateral Account maintained under its
sole dominion and control. All Proceeds while held by the Administrative Agent
in a Collateral Account (or by such Grantor in trust for the Administrative
Agent and the Secured Parties) shall continue to be held as collateral security
for all the Obligations and shall not constitute payment thereof until applied
as provided in Section 6.5.
6.5 APPLICATION OF PROCEEDS. At any time after the occurrence and
during the continuance of an Event of Default, at the Administrative Agent's
election, the Administrative Agent may apply all or any part of Proceeds held in
any Collateral Account in payment of the Obligations in accordance with Section
6.9, and any part of such funds which the Administrative Agent elects not so to
apply and deems not required as collateral security for the Obligations shall be
paid over from time to time by the Administrative Agent to the Borrower or to
whomsoever may be lawfully entitled to receive the same. Any balance of such
Proceeds remaining after the Obligations shall have been paid in full, no
Letters of Credit shall be outstanding and the Commitments shall have terminated
shall be paid over to the Borrower or to whomsoever may be lawfully entitled to
receive the same.
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6.6 CODE AND OTHER REMEDIES. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Secured Parties, may
exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the Code or any other applicable law. Without limiting the generality of the
foregoing, the Administrative Agent, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon any Grantor or any other
Person (all and each of which demands, defenses, advertisements and notices are
hereby waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do any
of the foregoing), in one or more parcels at public or private sale or sales, at
any exchange, broker's board or office of the Administrative Agent or any
Secured Party or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. The Administrative Agent
or any Secured Party shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption in any Grantor, which right or equity is hereby waived and
released. Each Grantor further agrees, at the Administrative Agent's request, to
assemble the Collateral and make it available to the Administrative Agent at
places which the Administrative Agent shall reasonably select, whether at such
Grantor's premises or elsewhere. The Administrative Agent shall apply the net
proceeds of any action taken by it pursuant to this Section 6.6, after deducting
all reasonable costs and expenses of every kind incurred in connection therewith
or incidental to the care or safekeeping of any of the Collateral or in any way
relating to the Collateral or the rights of the Administrative Agent and the
Secured Parties hereunder, including, without limitation, reasonable attorneys'
fees and disbursements, to the payment in whole or in part of the Obligations,
in accordance with Section 6.9, and only after such application and after the
payment by the Administrative Agent of any other amount required by any
provision of law, including, without limitation, Section 9-504(l)(c) of the
Code, need the Administrative Agent account for the surplus, if any, to any
Grantor. To the extent permitted by applicable law, each Grantor waives all
claims, damages and demands it may acquire against the Administrative Agent or
any Secured Party arising out of the exercise by them of any rights hereunder.
If any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition.
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6.7 REGISTRATION RIGHTS. (a) If the Administrative Agent shall
determine to exercise its right to sell any or all of the Pledged Securities
pursuant to Section 6.6, and if in the opinion of the Administrative Agent it is
necessary or advisable to have the Pledged Securities, or that portion thereof
to be sold, registered under the provisions of the Securities Act, the relevant
Grantor will cause the Issuer thereof to (i) execute and deliver, and cause the
directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as may
be, in the opinion of the Administrative Agent, necessary or advisable to
register the Pledged Securities, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering of
the Pledged Securities, or that portion thereof to be sold, and (iii) make all
amendments thereto and/or to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Each Grantor agrees to
cause such Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the Administrative Agent shall designate
and to make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the provisions
of Section 11(a) of the Securities Act.
(b) Each Grantor recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Securities, by reason
of certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged
Securities for the period of time necessary to permit the Issuer thereof to
register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if such Issuer would agree to do so.
(c) Each Grantor agrees to use its best efforts to do or cause to be
done all such other acts as may be necessary to make such sale or sales of all
or any portion of the Pledged Securities pursuant to this Section 6.7 valid and
binding and in compliance with any and all other applicable Requirements of Law.
Each Grantor further agrees that a breach of any of the covenants contained in
this Section 6.7 will cause irreparable injury to the Administrative Agent and
the Secured Parties, that the Administrative Agent and the Secured Parties have
no adequate remedy at law in respect of such breach and, as a
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consequence, that each and every covenant contained in this Section 6.7 shall be
specifically enforceable against such Grantor, and such Grantor hereby waives
and agrees not to assert any defenses against an action for specific performance
of such covenants except for a defense that no Event of Default has occurred
under the LIN Credit Agreement.
6.8 WAIVER; DEFICIENCY. Each Grantor waives and agrees not to assert
any rights or privileges which it may acquire under Section 9-112 of the Code.
Each Grantor shall remain liable for any deficiency if the proceeds of any sale
or other disposition of the Collateral are insufficient to pay its Obligations
and the fees and disbursements of any attorneys employed by the Administrative
Agent or any Secured Party to collect such deficiency.
6.9 APPLICATION OF PROCEEDS. The Administrative Agent shall apply the
proceeds of any collection or sale of the Collateral, as well as any Collateral
consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by the
Administrative Agent (in its capacity as such hereunder, under the LIN
Credit Agreement or any other Loan Document or under the IHB Credit
Agreement or any other IHB Loan Document) in connection with such
collection or sale or otherwise in connection with this Agreement or any of
the Obligations, including all court costs and the fees and expenses of its
agents and legal counsel, the repayment of all advances made by the
Administrative Agent hereunder, under the LIN Credit Agreement or any other
Loan Document or under the IHB Credit Agreement or any other IHB Loan
Document on behalf of any Grantor and any other costs or expenses incurred
in connection with the exercise of any right or remedy hereunder, under the
LIN Credit Agreement or any other Loan Document or under the IHB Credit
Agreement or any other IHB Loan Document;
SECOND, to the payment in full of the Obligations (the amounts so
applied to be distributed pro rata among the Secured Parties pro rata in
accordance with the amounts of the Obligations owed to them on the date of
any such distribution); and
THIRD, to the Grantors, their successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
The Administrative Agent shall have absolute discretion as to the time
of application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Administrative Agent
(including pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of the Administrative Agent or of the officer making
the sale shall be a sufficient discharge to the
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purchaser or purchasers of the Collateral so sold and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Administrative Agent or such officer or be
answerable in any way for the misapplication thereof.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 ADMINISTRATIVE AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT, ETC. (a)
Each Grantor hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of such Grantor and in the name of such Grantor or in its
own name, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action to the extent permitted by law and to execute any
and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement, and, without limiting the generality
of the foregoing, each Grantor hereby gives the Administrative Agent the power
and right, on behalf of such Grantor, without notice to or assent by such
Grantor, to do any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Receivable or with respect to any other Collateral and file any claim or
take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the Administrative Agent for the purpose of
collecting any and all such moneys due under any Receivable or with respect
to any other Collateral whenever payable;
(ii) in the case of any Copyright, Patent or Trademark, execute,
deliver and have recorded, any and all agreements, instruments, documents
and papers as the Administrative Agent may request to evidence the
Administrative Agent's and the Secured Parties' security interest in such
Copyright, Patent or Trademark and the goodwill and general intangibles of
such Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the
premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in Section 6.6
or 6.7, any endorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral; and
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(v) (1) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Administrative Agent or as the Administrative
Agent shall direct; (2) ask or demand for, collect, and receive payment of
and receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral; (3)
sign and indorse any invoices, freight or express bills, bills of lading,
storage or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with any of the
Collateral; (4) commence and prosecute any suits, actions or proceedings at
law or in equity in any court of competent jurisdiction to collect the
Collateral or any portion thereof and to enforce any other right in respect
of any Collateral; (5) defend any suit, action or proceeding brought
against such Grantor with respect to any Collateral; (6) settle, compromise
or adjust any such suit, action or proceeding and, in connection therewith,
give such discharges or releases as the Administrative Agent may deem
appropriate; (7) assign any Copyright, Patent or Trademark (along with the
goodwill of the business to which any such Copyright, Patent or Trademark
pertains), throughout the world for such term or terms, on such conditions,
and in such manner, as the Administrative Agent shall in its sole
discretion determine, and (8) generally, sell, transfer, pledge and make
any agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Administrative Agent were the
absolute owner thereof for all purposes, and do, at the Administrative
Agent's option and such Grantor's expense, at any time, or from time to
time, all acts and things which the Administrative Agent deems necessary to
protect, preserve or realize upon the Collateral and the Administrative
Agent's and the Secured Parties' security interests therein and to effect
the intent of this Agreement, all as fully and effectively as such Grantor
might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the
Administrative Agent agrees that it will not exercise any rights under the power
of attorney provided for in this Section 7.1(a) unless an Event of Default shall
have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
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(c) The expenses of the Administrative Agent incurred in connection
with actions undertaken as provided in this Section 7.1, together with interest
thereon at a rate per annum equal to the rate per annum at which interest would
then be payable under the LIN Credit Agreement on past due Loans that are or
would be ABR Loans (whether or not any ABR Loans are then outstanding), from the
date of payment by the Administrative Agent to the date reimbursed by the
relevant Grantor, shall be payable by such Grantor to the Administrative Agent
on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
7.2 DUTY OF ADMINISTRATIVE AGENT. The Administrative Agent's sole duty
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Administrative Agent deals
with similar property for its own account. Neither the Administrative Agent, any
Secured Party nor any of their respective officers, directors, employees or
agents shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of any Grantor or any
other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof. The powers conferred on the Administrative Agent
and the Secured Parties hereunder are solely to protect the Administrative
Agent's and the Secured Parties' interests in the Collateral and shall not
impose any duty upon the Administrative Agent or any Secured Party to exercise
any such powers. The Administrative Agent and the Secured Parties shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to any Grantor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.
7.3 EXECUTION OF FINANCING STATEMENTS. Pursuant to Section 9-402 of
the Code and any other applicable law, each Grantor authorizes the
Administrative Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of such Grantor in such form and in such offices as the Administrative
Agent reasonably determines appropriate to perfect the security interests of the
Administrative Agent under this Agreement. A photographic or other reproduction
of this Agreement shall be sufficient as a financing statement or other filing
or recording document or instrument for filing or recording in any jurisdiction.
7.4 AUTHORITY OF ADMINISTRATIVE AGENT. Each Grantor acknowledges that
the rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by
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the Administrative Agent of any option, voting right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this
Agreement shall, as between the Administrative Agent and the Secured Parties, be
governed by the LIN Credit Agreement or the IHB Credit Agreement, as applicable,
and by such other agreements with respect thereto as may exist from time to time
among them, but, as between the Administrative Agent and the Grantors, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Secured Parties with full and valid authority so to act or refrain from
acting, and no Grantor shall be under any obligation, or entitlement, to make
any inquiry respecting such authority.
SECTION 8. MISCELLANEOUS
8.1 AMENDMENTS IN WRITING. Subject to the terms of the LIN Credit
Agreement and the IHB Credit Agreement, the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified by a
written instrument executed by each affected Grantor and the Administrative
Agent, PROVIDED that, subject to the terms of the LIN Credit Agreement and the
IHB Credit Agreement, any provision of this Agreement imposing obligations on
any Grantor may be waived by the Administrative Agent and the Secured Parties in
a written instrument executed by the Administrative Agent.
8.2 NOTICES. All notices, requests and demands to or upon the
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in Section 10.2 of the LIN Credit Agreement; PROVIDED that any such
notice, request or demand to or upon any Guarantor shall be addressed to such
Guarantor at its notice address set forth on SCHEDULE 1.
8.3 NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE REMEDIES. Neither the
Administrative Agent nor any Secured Party shall by any act (except by a written
instrument pursuant to Section 8.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Secured Party, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Administrative Agent or any Secured Party of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which the Administrative Agent or such Secured Party would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
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8.4 ENFORCEMENT EXPENSES, INDEMNIFICATION. (a) Each Guarantor agrees
to pay or reimburse each Secured Party and the Administrative Agent for all its
costs and expenses incurred in collecting against such Guarantor under the
guarantees contained in Section 2 or otherwise enforcing or preserving any
rights under this Agreement and the other Loan Documents to which such Guarantor
is a party, including, without limitation, the reasonable fees and disbursements
of counsel to the Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the Administrative Agent
and the Secured Parties harmless from, any and all liabilities with respect to,
or resulting from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by
this Agreement.
(c) Each Guarantor agrees to pay, and to save the Administrative Agent
and the Secured Parties harmless from any and all 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 to the
same extent the Borrower would be required to do so pursuant to Section 9.7 of
the LIN Credit Agreement or Section 9.7 of the IHB Credit Agreement, as
applicable.
(d) The agreements in this Section 8.4 shall survive repayment of the
Obligations and all other amounts payable under the LIN Credit Agreement and the
other Loan Documents and under the IHB Credit Agreement and the other IHB Loan
Documents.
8.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
Administrative Agent and the Secured Parties and their successors and assigns;
PROVIDED that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent.
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8.6 SET-OFF. In addition to any rights and remedies of the
Administrative Agent and the Secured Parties provided by law, the Administrative
Agent and each Secured Party shall have the right, without prior notice to any
Grantor, any such notice being expressly waived by each Grantor to the extent
permitted by applicable law, upon any amount becoming due and payable by any
Grantor 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 Secured Party or any branch or agency thereof to or for
the credit or the account of such Grantor. The Administrative Agent and each
Secured Party agrees promptly to notify the relevant Grantor and (if applicable)
the Administrative Agent after any such set off and application made by the
Administrative Agent or such Secured Party, PROVIDED that the failure to give
such notice shall not affect the validity of such setoff and application.
8.7 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, IHB and the
Administrative Agent.
8.8 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.
8.9 INTEGRATION. This Agreement, the other Loan Documents, the IHB
Credit Agreement and the other IHB Loan Documents represent the entire agreement
of the Grantors, the Administrative Agent and the Secured Parties with respect
to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties of the Administrative Agent or any
Secured Party relative to subject matter hereof and thereof not expressly set
forth or referred to herein, in the other Loan Documents, in the IHB Credit
Agreement or in the other IHB Loan Documents.
8.10 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.
8.11 SUBMISSION TO JURISDICTION; WAIVERS. Each Grantor hereby
irrevocably and unconditionally:
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(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents or to the IHB
Credit Agreement and the other IHB 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;
(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 Grantor at its
address referred to in Section 8.2 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 Section 8.11 any special, exemplary, punitive or consequential damages.
8.12 ACKNOWLEDGMENTS. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement, the other Loan Documents, the IHB Credit Agreement
and the other IHB Loan Documents;
(b) neither the Administrative Agent nor any Secured Party has any
fiduciary relationship with or duty to any Grantor arising out of or in
connection with this Agreement, any of the other Loan Documents, the IHB Credit
Agreement or the other IHB Loan Documents, and the relationship between
Administrative Agent and Secured Parties, on one hand, and the Grantors, on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby, by the other Loan Documents,
by the IHB Credit Agreement or by the other IHB Loan Documents or otherwise
exists by virtue
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of the transactions contemplated hereby among the Secured Parties or among the
Grantors and the Secured Parties.
8.13 WAIVERS OF JURY TRIAL. EACH GRANTOR, THE ADMINISTRATIVE AGENT AND
THE LIN LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT, THE IHB CREDIT AGREEMENT AND THE OTHER IHB LOAN DOCUMENTS AND FOR ANY
COUNTERCLAIM THEREIN.
8.14 SECTION HEADINGS. The Section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
8.15 ADDITIONAL GRANTORS. Each Subsidiary of the Borrower that is
required to become a party to this Agreement pursuant to Section 6.10 of the LIN
Credit Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of an Assumption Agreement in the form
of Annex I hereto.
8.16 RELEASES. (a) At such time as the Loans, the Reimbursement
Obligations and the other Obligations shall have been paid in full, the
Commitments have been terminated and no Letters of Credit shall be outstanding,
the Collateral shall be released from the Liens created hereby, and this
Agreement and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Grantor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Grantors. At the
request and sole expense of any Grantor following any such termination, the
Administrative Agent shall deliver to such Grantor any Collateral held by the
Administrative Agent hereunder, and execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Grantor in a transaction permitted by the LIN Credit
Agreement, then the Administrative Agent, at the request and sole expense of
such Grantor, shall execute and deliver to such Grantor all releases or other
documents reasonably necessary or desirable for the release of the Liens created
hereby on such Collateral. At the request and sole expense of the Borrower, a
Guarantor shall be released from its obligations hereunder in the event that all
the Capital Stock of such Guarantor shall be sold, transferred or otherwise
disposed of in a transaction permitted by the LIN Credit Agreement.
8.17 FCC COMPLIANCE. (a) 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
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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. In addition, the parties acknowledge that the
voting rights of the Pledged Stock shall remain with the relevant Grantor
thereof even upon the occurrence and during the continuance of an Event of
Default until the FCC shall have given its prior consent to the exercise of
stockholder rights by a purchaser at a public or private sale of such Pledged
Stock or the exercise of such rights by the Administrative Agent or by a
receiver, trustee, conservator or other agent duly appointed pursuant to
applicable law.
(b) If an Event of Default shall have occurred, each Grantor shall
take any action which the Administrative Agent may request in the exercise of
its rights and remedies under this Agreement in order to transfer or assign the
Collateral to the Administrative Agent or to such one or more third parties as
the Administrative Agent may designate, or to a combination of the foregoing. To
enforce the provisions of this Section 8.17, the Administrative Agent is
empowered to seek from the FCC and any other Governmental Authority, to the
extent required, consent to or approval of any involuntary transfer of control
of any entity whose Collateral is subject to this Agreement for the purpose of
seeking a bona fide purchaser to whom control ultimately will be transferred.
Each Grantor agrees to cooperate with any such purchaser and with the
Administrative Agent in the preparation, execution and filing of any forms and
providing any information that may be necessary or helpful in obtaining the
FCC's consent to the assignment to such purchaser of the Collateral. Each
Grantor hereby agrees to consent to any such voluntary or involuntary transfer
after and during the continuation of an Event of Default and, without limiting
any rights of the Administrative Agent under this Agreement, to authorize the
Administrative Agent to nominate a trustee or receiver to assume control of the
Collateral, subject only to required judicial, FCC or other consents required by
Governmental Authorities, in order to effectuate the transactions contemplated
by this Section 8.17. Such trustee or receiver shall have all the rights and
powers as provided to it by law or court order, or to the Administrative Agent
under this Agreement. Each Grantor shall cooperate fully in obtaining the
consent of the FCC and the approval or consent of each other Governmental
Authority required to effectuate the foregoing.
(c) Without limiting the obligations of any Grantor hereunder in any
respect, each Grantor further agrees that if such Grantor, upon or after the
occurrence of an Event of Default, should fail or refuse for any reason
whatsoever, without limitation, including any refusal to execute any application
necessary or appropriate to obtain any governmental consent necessary or
appropriate for the exercise of any right of the Administrative Agent hereunder,
such Grantor agrees that such application may be executed on such Grantor's
behalf by the clerk of any court of competent jurisdiction without notice to
such Grantor pursuant to court order.
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(d) In connection with this Section 8.17, the Administrative Agent
shall be entitled to rely in good faith upon an opinion of outside FCC counsel
of the Administrative Agent's choice with respect to any such assignment or
transfer, whether or not the advice rendered is ultimately determined to have
been accurate.
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IN WITNESS WHEREOF, each of the undersigned has caused this Amended
and Restated Guarantee and Collateral Agreement to be duly executed and
delivered as of the date first above written.
LIN TELEVISION CORPORATION
By: ______________________
Name:
Title:
LIN HOLDINGS CORP.
By: ______________________
Name:
Title:
EACH OF THE OTHER SIGNATORIES LISTED
ON SCHEDULE 7 ATTACHED HERETO
By: ______________________
Name:
Title:
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THE CHASE MANHATTAN BANK, as
Administrative Agent
By: _______________________
Name:
Title:
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SCHEDULE 1
NOTICE ADDRESS OF EACH GUARANTOR
48
SCHEDULE 2
DESCRIPTION OF PLEDGED STOCK
DESCRIPTION OF PLEDGED DEBT SECURITIES
49
SCHEDULE 3
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
UNIFORM COMMERCIAL CODE FILINGS
[List each office where a financing statement is to be filed]
COPYRIGHT; PATENT AND TRADEMARK FILINGS
[List all filings]
ACTIONS WITH RESPECT TO PLEDGED STOCK AND PLEDGED DEBT SECURITIES
50
SCHEDULE 4
JURISDICTION OF ORGANIZATION
AND LOCATION OF CHIEF EXECUTIVE OFFICE
GRANTOR JURISDICTION
------- ------------
Location for all Grantors:
51
SCHEDULE 5
LOCATION OF INVENTORY AND EQUIPMENT
GRANTOR LOCATIONS
------- ---------
52
SCHEDULE 6
COPYRIGHTS AND COPYRIGHT LICENSES
PATENTS AND PATENT LICENSES
TRADEMARKS AND TRADEMARK LICENSES
53
SCHEDULE 7
SIGNATORIES