AMENDMENT, ASSUMPTION & WAIVER
AMENDMENT, ASSUMPTION AND WAIVER, dated as of October 21, 2003
(this "Amendment"), to the Amended and Restated Credit Agreement, dated as of
February 7, 2003 (as heretofore amended, supplemented or otherwise modified, the
"Credit Agreement"), among LIN HOLDINGS CORP. ("Holdings"), LIN TELEVISION
CORPORATION (the "Borrower"), TELEVICENTRO OF PUERTO RICO, LLC (the "Permitted
Borrower"), the several banks and other financial institutions or entities from
time to time parties thereto (the "Lenders"), JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the "Administrative Agent"), as Issuing
Lender (as defined in the Credit Agreement) and as Swingline Lender (as defined
in the Credit Agreement), THE BANK OF NOVA SCOTIA, FLEET NATIONAL BANK and
MORGAN STANLEY SENIOR FUNDING, as Co-Documentation Agents (as defined in the
Credit Agreement), DEUTSCHE BANK TRUST COMPANY AMERICAS, as Syndication Agent
(as defined in the Credit Agreement), and J.P. MORGAN SECURITIES INC. and
DEUTSCHE BANK SECURITIES INC., as Joint Lead Arrangers (as defined in the Credit
Agreement).
W I T N E S S E T H:
WHEREAS, Holdings, the Borrower, the Permitted Borrower, the
Lenders, the Administrative Agent, Issuing Lender, Swingline Lender,
Co-Documentation Agents, Syndication Agent and Joint Lead Arrangers are parties
to the Credit Agreement;
WHEREAS, LIN TV Corp. ("LIN TV") is the parent of Holdings and
has guaranteed the Obligations of the Borrower and the Permitted Borrower
pursuant to a Guarantee, dated as of May 7, 2003, in favor of the Administrative
Agent and the Lenders (the "Parent Guarantee");
WHEREAS, Borrower, a Delaware corporation, is the wholly-owned
subsidiary of Holdings, a Delaware corporation;
WHEREAS, Holdings intends to file a certificate of ownership
and merger ("Certificate of Ownership and Merger") with the Secretary of State
of the State of Delaware, pursuant to Section 253 of the Delaware General
Corporation Law ("2003 Merger Certificate"), whereby Holdings would merge with
and into the Borrower, with the Borrower being the surviving entity (the "2003
Corporate Restructuring");
WHEREAS, Holdings, the Borrower and the Permitted Borrower
further desire to correct a technical error in the Credit Agreement regarding
the allocation of quarterly installment payments made by (i) the Borrower for
the Tranche B Term Loans made to the Borrower and (ii) the Permitted Borrower
for the Tranche B Term Loans made to the Permitted Borrower (the "Tranche B
Payment Reallocation");
WHEREAS, Holdings, the Borrower and the Permitted Borrower
have requested that the Lenders consent to the 2003 Corporate Restructuring, the
Tranche B Payment
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Reallocation, and certain other amendments and grant a limited waiver of, and
amend, the Credit Agreement, as set forth herein; and
WHEREAS, the Required Lenders and the Administrative Agent are
willing to consent to the 2003 Corporate Restructuring, the Tranche B Payment
Reallocation and other such amendments under the Credit Agreement, but only on
the terms contained in this Amendment;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Credit Agreement and
used herein without definition shall have the meanings given to them in the
Credit Agreement.
2. Waiver of Applicable Provisions of the Loan Documents. The
Lenders hereby waive the application of any provision of any Loan Document to
the extent, and only to the extent, necessary to permit the 2003 Corporate
Restructuring, including without limitation Subsections 7.4, 7.5 and 7.10 of the
Credit Agreement.
3. Amendment to Subsection 1.1 (Defined Terms). Upon the
filing of the 2003 Merger Certificate, Subsection 1.1 of the Credit Agreement
shall be amended as follows:
(a) The definition of "Change of Control" shall be amended by
replacing the date "January 21, 2000" with the term "2003 Corporate
Restructuring Date."
(b) The following definitions shall be added in their proper
alphabetical order:
"2003 Corporate Restructuring Date": the date on
which the 2003 Merger Certificate is filed with the Secretary of State
of the State of Delaware.
"2003 Merger Certificate": the Certificate of
Ownership and Merger of LIN Holdings Corp., effecting the merger of LIN
Holdings Corp. with and into the Borrower.
"Joint Venture" means the television station joint
venture formed pursuant to an agreement dated January 15, 1998, as
amended, by and between Holdings, the National Broadcast Company Inc.
("NBC"), the Borrower and certain affiliates of Holdings, pursuant to
which both the Company and NBC contributed television stations to the
Joint Venture in exchange for equity interests therein.
"Stock Pledge Agreement": the stock pledge agreement,
in substantially the form of Exhibit L (Form of Stock Pledge Agreement)
attached hereto, executed and delivered by LIN TV.
4. Amendment to Subsection 2.3 (Repayment of Tranche B Term
Loans). Subsection 2.3(b) is hereby amended by (i) deleting the second sentence
in its entirety and (ii) inserting in lieu thereof the sentence:
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"Each such installment shall be (i) with respect to
installments payable prior to the Tranche B Maturity Date, in
an aggregate amount equal to such Lender's Tranche B Term Loan
Percentage multiplied by (A) $1,500,000 in the case of
payments on account of Tranche B Term Loans made to the
Borrower and (B) $250,000 in the case of payments made on
account of Tranche B Term Loans made to the Permitted Borrower
and (ii) with respect to the installments payable by the
Borrower and the Permitted Borrower on the Tranche B Maturity
Date, in an amount equal to such Lender's Tranche B Term Loan
Percentage multiplied by the then outstanding aggregate
principal amount of the Tranche B Term Loans of the Borrower
and the Tranche B Term Loans of the Permitted Borrower,
respectively."
5. Amendment to Subsection 4.15 (Subsidiaries). Upon the
filing of the 2003 Merger Certificate, Subsection 4.15 shall be amended by
deleting the second sentence in its entirety.
6. Amendment to Subsection 4.21 (Senior Indebtedness). Upon
the filing of the 2003 Merger Certificate, Subsection 4.21 shall be amended by
deleting all references to Holdings in their entirety.
7. Amendment to Subsection 7.2(b) (Limitation on
Indebtedness). Upon the filing of the 2003 Merger Certificate, Subsection 7.2(b)
shall be amended by deleting in its entirety the parenthetical "(other than
Holdings)".
8. Amendment to Subsection 7.2(k) (Limitation on
Indebtedness). Upon the filing of the 2003 Merger Certificate, Subsection 7.2(k)
shall be amended by deleting in its entirety the parenthetical "(other than
Holdings)".
9. Amendment to Subsection 7.5(h) (Limitation on Sale of
Assets). Subsection 7.5(h) is hereby amended by changing the reference to
"subsection 2.9(d)" in clause (iii) of the proviso to "subsection 2.9(b)."
10. Amendment to Subsection 7.7 (Limitation on Capital
Expenditures). Upon the filing of the 2003 Merger Certificate, Subsection 7.7(c)
shall be deleted in its entirety.
11. Amendment to Subsection 7.8(o) (Limitation on Investments,
Loans and Advances). Upon the filing of the 2003 Merger Certificate, Subsection
7.8(o) shall be amended by (a) deleting such Subsection 7.8(o) in its entirety
and (b) inserting in lieu thereof the following new Subsection 7.8(o):
"(o) Investments that are downstreamed to the Joint Venture
solely for the purpose of curing any event of default under
the Joint Venture Loan; and"
12. Amendment and Waiver of Subsection 7.16 (Limitations on
Change in Holding Company Status). Upon the filing of the 2003 Merger
Certificate, Subsection 7.16 shall be amended by (a) deleting such Subsection
7.16 in its entirety and (b) inserting in lieu thereof the following new
Subsection 7.16:
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"7.16 Limitations on Change in Holding Company Status. Permit
LIN TV to engage in any activities, make any Capital
Expenditures, or incur any Indebtedness or Guarantee
Obligations other than (a) activities customarily carried out
or required of a publicly-owned company, (b) performance of
its obligations pursuant to each of (i) the Joint Venture Loan
Guarantee, (ii) the Stock Pledge Agreement and (iii) the
Guarantee, dated as of May 7, 2003, by LIN TV in favor of the
Administrative Agent and the Lenders, and (c) owning the
Capital Stock of Borrower."
13. Amendment to Subsection 8 (Events of Default). Upon the
filing of the 2003 Merger Certificate, Subsection 8(j) shall be amended by (a)
deleting such Subsection 8(j) in its entirety and (b) inserting in lieu thereof
the following new Subsection 8(j):
"(j) A Change in Control shall occur or LIN TV shall fail
to own directly or indirectly, beneficially and of record 100%
of the Capital Stock of the Borrower free and clear of all
Liens other than Liens in favor of the Lenders pursuant to the
Loan Documents."
14. Assumption of Credit Agreement. Upon the filing of the
2003 Merger Certificate, (a) the Borrower irrevocably and unconditionally
assumes the due and punctual performance of the obligations of Holdings under
the Credit Agreement and the other Loan Documents and agrees to comply with and
perform such obligations and the other covenants of Holdings therein, and (b)
the Borrower succeeds to and is substituted for Holdings under the Credit
Agreement and the other Loan Documents with the same effect as if the Borrower
had been named therein as Holdings. Upon such filing, all references to
"Holdings" in the Credit Agreement and the other Loan Documents shall be deemed
to be references to the Borrower; provided that:
(a) all references to Subsidiaries of Holdings shall be deemed
to be references to the Borrower and its Subsidiaries;
(b) notwithstanding paragraph (a) above, all references to
Holdings in Subsections 7.4(c) and 7.6(a) shall be deemed to be references to
LIN TV; and
(c) such assumption, agreement and substitution shall in no
event limit any rights or privileges granted to the Borrower in the Loan
Documents or affect any express exceptions, qualifications, or limitations
applicable to representations, warranties, covenants and agreements made by or
binding upon the Borrower in the Loan Documents.
15. Consent to the 2003 Corporate Restructuring.
(a) The consent of the Lenders to the 2003 Corporate
Restructuring and the provisions in this Amendment contemplating and providing
for the 2003 Corporate Restructuring are subject to the following:
(i) the 2003 Merger Certificate shall be
reasonably satisfactory to the Administrative Agent;
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(ii) the 2003 Merger Certificate shall be filed
on or before December 31, 2003.
(iii) all material governmental and third party
approvals necessary in connection with the 2003 Corporate
Restructuring and the other transactions contemplated hereby
shall have been obtained and be in full force and effect;
(iv) the Administrative Agent shall have received
the Stock Pledge Agreement, executed and delivered by a duly
authorized officer of LIN TV on or before the date of the
filing of the 2003 Merger Certificate (the "2003 Corporate
Restructuring Date");
(v) the Administrative Agent shall receive
promptly after the 2003 Corporate Restructuring Date a
certificate representing all of the Capital Stock of the
Borrower together with an undated stock power covering such
certificate duly executed in blank by LIN TV;
(vi) the Administrative Agent shall have received
a certificate from each of the Borrower and the Permitted
Borrower, executed by a Responsible Officer, dated as of the
2003 Corporate Restructuring Date, certifying that (A) as of
the 2003 Corporate Restructuring Date no Default or Event of
Default shall have occurred and be continuing and (B) each of
the representations and warranties made by the Loan Parties in
the Loan Documents are true and correct in all material
respects on and as of the 2003 Corporate Restructuring Date as
if made and except to the extent such representations and
warranties expressly relate to a specific earlier date, in
which case such representations and warranties were true and
correct in all material respects as of such earlier date; and
(vii) The Administrative Agent shall have received
a certificate from LIN TV, executed by the chief executive
officer, the president, any vice president or senior vice
president, the treasurer or any assistant treasurer, the
secretary or assistant secretary or the chief financial
officer of LIN TV, dated as of the 2003 Corporate
Restructuring Date, certifying that (A) as of the 2003
Corporate Restructuring Date the corporate organizational
chart, list or other similar document attached thereto, in
form reasonably acceptable to the Administrative Agent and
setting forth, for LIN TV and each Person that is a Loan Party
or that is a Subsidiary of any of them, the full legal name of
such Person, is true, correct, complete and current and (B)
each of the representations and warranties made by LIN TV in
Section 3 of the Parent Guarantee are true and correct on and
as of the 2003 Corporate Restructuring Date as if made on such
date.
(b) This Amendment shall for all purposes be a Loan Document.
(c) Exhibit L attached to this Amendment is hereby added as
Exhibit L to the Credit Agreement.
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16. Representations and Warranties.
(a) In order to induce the Administrative Agent and the
Required Lenders to enter into this Amendment, each of the Borrower and the
Permitted Borrower hereby represents and warrants to the Administrative Agent
and the Lenders that the representations and warranties made by the Loan Parties
in the Loan Documents are true and correct in all material respects on and as of
the date hereof, before and after giving effect to the effectiveness of this
Amendment, as if made on and as of the date hereof, except to the extent such
representations and warranties expressly relate to a specific earlier date, in
which case such representations and warranties were true and correct in all
material respects as of such earlier date. Each of Holdings, the Borrower and
the Permitted Borrower represents and warrants that, after giving effect to this
Amendment, no Default or Event of Default has occurred and is continuing.
(b) Each of Holdings, the Borrower and the Permitted Borrower
represents and warrants that, as of the date hereof, there is no Holdings
Discount Indebtedness outstanding.
17. Conditions to Effectiveness. This Amendment shall not
become effective until the date on which the Administrative Agent shall have
received this Amendment, executed and delivered by a duly authorized officer of
Holdings, the Borrower, the Permitted Borrower and the Required Lenders.
18. Continuing Effect of the Credit Agreement. This Amendment
shall not constitute an amendment or waiver of any provision of the Credit
Agreement not expressly referred to herein and shall not be construed as an
amendment or consent to any further or future action on the part of any Loan
Party that would require an amendment, waiver or consent of the Lenders or
Administrative Agent. Except as expressly amended hereby, the provisions of the
Credit Agreement are and shall remain in full force and effect.
19. Expenses. The Borrower agrees to pay and reimburse the
Administrative Agent for all its reasonable costs and expenses incurred in
connection with the preparation and delivery of this Amendment, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
20. Counterparts. This Amendment may be executed by the
parties hereto in any number of separate counterparts (including telecopied
counterparts), each of which shall be deemed to be an original, and all of which
taken together shall be deemed to constitute one and the same instrument.
21. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
22. Integration. This Amendment along with the Loan Documents
represent the agreement of the parties hereto with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the Administrative Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
LIN HOLDINGS CORP.
By:_________________________________
Name:
Title:
LIN TELEVISION CORPORATION
By:_________________________________
Name:
Title:
TELEVICENTRO OF PUERTO RICO, LLC
LIN Television of San Juan, Inc., the
Managing Member
By:_________________________________
Name:
Title:
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JPMORGAN CHASE BANK, as Administrative
Agent, Swingline Lender, Issuing Lender and a
Lender
By:_________________________________
Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Syndication Agent and a Lender
By:_________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as Co-
Documentation Agent and a Lender
By:_________________________________
Name:
Title:
FLEET NATIONAL BANK, as Co-Documentation
Agent and a Lender
By:_________________________________
Name:
Title:
MORGAN STANLEY SENIOR FUNDING,
as Co-Documentation Agent and a Lender
By:_________________________________
Name:
Title:
____________________________________, as a
Lender
By:_________________________________
Name:
Title: