UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934.
For the period ended June 30, 1994
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934.
For the transition period from ______________ to ______________
Commission File Number: 0-2481
LIN Broadcasting Corporation
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(Exact name of registrant as specified in its charter)
Delaware 62-0673800
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5295 Carillon Point, Kirkland, WA 98033
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(Address of principal executive offices) (Zip Code)
(206) 828-1902
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(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months(or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes [X] No [__]
Indicate the number of shares outstanding of each of the issuer s classes
of common stock, as of the latest practicable date.
Class Outstanding at
July 31, 1994
----------------------------- ---------------
Common Stock, $0.01 par value 51,577,628<PAGE>
<PAGE> 1
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
LIN BROADCASTING CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(Dollars in thousands)
(Unaudited)
June 30, December 31,
1994 1993
---------- -----------
ASSETS
- - ----------------------
Current Assets:
Cash and cash equivalents $90,312 $86,366
Marketable securities 12,258 16,465
Accounts receivable, less allowance
for doubtful accounts 167,333 156,784
Film contract rights, prepaid
expenses and other current assets 18,520 21,960
------- -------
Total current assets 288,423 281,575
Property and equipment, at cost,
less accumulated depreciation 446,286 405,762
Other noncurrent assets 67,910 61,807
Investments in and advances to
unconsolidated affiliates 237,576 264,172
Intangible assets, less accumulated
amortization 2,064,749 1,896,207
--------- ---------
Total assets $3,104,944 $2,909,523
========== =========
LIABILITIES AND STOCKHOLDERS'
EQUITY (DEFICIT)
- - -----------------------------
Current Liabilities:
Current portion of long-term
bank debt $175,134 $146,891
Accounts payable, accrued expenses
and other current liabilitie 200,605 203,953
------- -------
Total current liabilities 375,739 350,844
(continued)<PAGE>
<PAGE> 2
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
LIN BROADCASTING CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS (continued)
(Dollars in thousands)
(Unaudited)
June 30, December 31,
1994 1993
---------- -----------
LIABILITIES AND STOCKHOLDERS'
EQUITY (DEFICIT) (continued)
- - -----------------------------
Long-term bank debt 1,676,633 1,551,447
Deferred income taxes 793,055 735,049
Film contract rights and other
noncurrent liabilities 21,111 13,091
Minority interests in equity of
consolidated subsidiaries 63,023 56,209
Redeemable preferred stock
of a subsidiary -- 1,305,248
Stockholders' Equity (Deficit):
Common stock (55,329,000 shares
issued) 553 553
Paid-in capital 1,009,075 224,689
Deficit (658,539) (1,150,205)
--------- -----------
351,089 (924,963)
Less common stock in treasury,
at cost 175,706 177,402
--------- -----------
Total stockholders'
equity (deficit) 175,383 (1,102,365)
--------- -----------
Total liabilities and
stockholders' equity
(deficit) $3,104,944 $2,909,523
========== ==========
See notes to condensed consolidated financial statements.
<PAGE>
<PAGE> 3
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
LIN BROADCASTING CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
(Unaudited)
Three Months Six Months
Ended June 30, Ended June 30,
----------------- ----------------
1994 1993 1994 1993
---- ---- ----- ----
Net Revenues $219,588 $171,198 $411,215 $322,431
-------- -------- -------- --------
Operating Costs and
Expenses:
Direct costs and
expenses 125,058 91,445 253,574 178,129
Corporate expenses 2,159 1,749 4,772 3,193
Depreciation 14,075 11,136 27,156 21,802
Amortization of
intangible assets 20,932 19,732 40,633 39,464
Loss on disposal of
cellular equipment -- 46,583 -- 46,583
-------- -------- -------- --------
162,224 170,645 326,135 289,171
-------- -------- -------- --------
Operating Income 57,364 553 85,080 33,260
Other Income (Expense):
Equity in income of
unconsolidated
affiliates 32,353 24,580 64,201 49,309
Investment and other 926 1,702 2,163 4,226
Gain on redemption of
preferred stock of
a subsidiary 468,689 -- 468,689 --
Interest expense (24,762) (23,896) (47,282) (48,124)
-------- -------- -------- --------
477,206 2,386 487,771 5,411
(continued)<PAGE>
<PAGE> 4
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
LIN BROADCASTING CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (continued)
(In thousands, except per share amounts)
(Unaudited)
Three Months Six Months
Ended June 30, Ended June 30,
----------------- ----------------
1994 1993 1994 1993
---- ---- ----- ----
Income Before Income
Tax Expense and
Minority Interests 534,570 2,939 572,851 38,671
Income Tax Expense 20,397 93 33,311 10,895
-------- -------- -------- --------
Income Before Minority
Interests 514,173 2,846 539,540 27,776
Minority Interests:
In net income (loss)
of consolidated
subsidiaries 7,412 (14,115) 14,229 (8,168)
Provision for preferred
stock dividends of
a subsidiary -- 33,575 33,575 67,150
-------- -------- -------- --------
Net income (loss) $506,761 $(16,614) $491,666 $(31,206)
======== ========= ======== =========
Net income (loss)
per share $9.75 $(0.32) $9.46 $(0.61)
======== ========= ======== =========
Average common and
equivalent shares
outstanding 51,988 51,436 51,967 51,433
======== ========= ======== =========
See notes to condensed consolidated financial statements.
<PAGE>
<PAGE> 5
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
LIN BROADCASTING CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in thousands)
(Unaudited)
Six Months Ended June 30,
1994 1993
----------------------------
Net cash provided by
operating activities $100,249 $90,308
-------- --------
Investing Activities:
Proceeds from sale of
marketable securities 4,120 25,555
Purchase of marketable securities -- (24,275)
Proceeds from sale of capital
equipment 5,622 --
Capital expenditures (76,675) (41,250)
Cellular and television
acquisitions (176,952) --
Net investments in and
advances from unconsolidated
affiliates 9,027 5,448
-------- --------
Net cash used in
investing activities (234,858) (34,522)
Financing Activities:
Proceeds from borrowings 340,000 --
Repayment of bank debt (186,571) (15,297)
Increase in deferred commitment/
financing fees (4,196) --
Redemption of preferred stock (13,167) --
Proceeds from common stock
issued for stock purchase plan,
stock options and related
tax benefits 3,241 1,096
Purchase of common stock for treasury (752) (685)
-------- --------
Net cash from (used) in
financing activities 138,555 (14,886)
(continued)<PAGE>
<PAGE> 6
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
LIN BROADCASTING CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (continued)
(Dollars in thousands)
(Unaudited)
Six Months Ended June 30,
1994 1993
----------------------------
Increase in Cash and Cash Equivalents $3,946 $40,900
-------- --------
Cash and Cash Equivalents at
Beginning of Period 86,366 102,909
-------- --------
Cash and Cash Equivalents at
End of Period $90,312 $143,809
======== ========
Supplemental Disclosures Of Cash Flow Information
Interest payments were $37,507 and $44,678 for the six months
ended June 30, 1994 and 1993, respectively. Net income tax
payments were $38,084 and $22,524 for the six months ended June
30, 1994 and 1993 respectively.
See notes to condensed consolidated financial statements.
<PAGE>
<PAGE> 7
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
LIN BROADCASTING CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands)
(Unaudited)
1. Basis Of Presentation
The condensed consolidated financial statements include the
accounts of LIN Broadcasting Corporation (LIN), its
majority-owned subsidiaries and cellular ventures
(principally New York and Dallas) in which LIN has voting
control (the Company). The Company s investments in
cellular ventures in which it has voting interests of 50% or
less but more than 20% (principally Los Angeles, Houston and
Philadelphia, see note 3 below) are accounted for on the
equity method.
These financial statements have been prepared without audit,
pursuant to the rules and regulations of the Securities and
Exchange Commission. Certain information and footnote
disclosures normally included in financial statements
prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to such
rules and regulations. These condensed consolidated
financial statements should be read in conjunction with the
audited consolidated financial statements and notes thereto
included in the Company's Form 10-K for the year ended
December 31, 1993.
The financial information included herein reflects all
adjustments (consisting of normal recurring adjustments)
which are, in the opinion of management, necessary to a fair
presentation of the results for interim periods. The
results of operations for the three and six month periods
ended June 30, 1994 are not necessarily indicative of the
results to be expected for the full year.
2. Summarized Financial Data
Summarized income statement information for the cellular
ventures accounted for on the equity method for the three
and six months ended June 30, 1994 and 1993 is as follows:
<PAGE>
<PAGE> 8
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
2. Summarized Financial Data (continued)
Three Months Six Months
Ended June 30, Ended June 30,
----------------- ----------------
At 100% 1994 1993 1994 1993
- - ------------- ---- ---- ----- ----
Net revenues $227,692 $175,175 $441,119 $335,043
Net income 76,140 59,955 151,764 119,994
LIN s equity in
net income 32,353 24,580 64,201 49,309
3. Completed Transactions
Redemption of Preferred Stock of a Subsidiary
On June 24, 1994 the Company's subsidiary, LCH
Communications ("LCH") redeemed all the outstanding
Redeemable Preferred Stock of LCH held by Comcast Cellular
Communications, Inc. a subsidiary of Comcast Corporation, in
exchange for all of the capital stock of a subsidiary of LCH
Communications, whose assets consisted primarily of LIN's
49.99% interest in the Philadelphia "A Block" cellular
system and its interest in GuestInformant (a publisher of
advertiser-supported hard cover magazines placed in hotel
rooms). This transaction resulted in a non-cash tax free
gain of $468.7 million or $9.02 per share for the quarter
ended June 30, 1994. The gain represents the excess of the
fair values of the assets exchanged over their book values.
The $783.8 million difference between the book value of the
Preferred Stock and the fair values of the assets exchanged
was credited to Additional Paid-In Capital. The results of
operations of GuestInformant and the equity in income of the
Philadelphia cellular venture are reflected in the Company's
results of operations through June 24, 1994.
Acquisitions
On May 31, 1994 the Company acquired an additional 5.2%
interest in the New York "A Block" cellular system for
approximately $145 million in cash. LIN now owns
approximately 98.3% of the New York system. The Company
also completed the acquisition of 100% of the Connecticut <PAGE>
<PAGE> 9
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
3. Completed Transactions (continued)
RSA #1 "A Block" cellular system for approximately $30
million in cash. Both acquisitions were funded with
proceeds from additional bank credit facility borrowings
(see Liquidity and Capital Resources in Item 2 below).
4. Pending Transactions
On June 8, 1994, the Company announced that it intends to
distribute the common stock of its subsidiary, LIN
Television Corporation, to the Company's stockholders on a
tax-free basis. LIN also announced that it and LIN
Television Corporation entered into a definitive agreement
to acquire WTNH-TV, the ABC affiliate in Hartford-New Haven,
Connecticut from Cook Inlet Communications Corporation for
approximately $120 million in cash and 11.5% of the common
stock of LIN Television Corporation. These transactions
will create a public company which owns seven network-
affiliated television stations, including stations in
Dallas, Indianapolis and Norfolk.
Following the spin-off, it is expected that approximately
42% of LIN Television Corporation's shares will be publicly
owned and approximately 46% will be owned by McCaw Cellular
Communications, Inc. These transactions are subject to
Federal Communications Commission and other approvals. The
Internal Revenue Service has ruled that no gain or loss will
be recognized by (and no amount will be included in the
income of) the shareholders of the Company as a result of
the spin-off. The closing of the WTNH acquisition and the
spin-off are expected to occur by year-end 1994.
5. Income (loss) Per Share
For the 1994 periods, the computation of primary earnings
per share is based on the weighted average number of
outstanding common shares and additional share equivalents
assuming the exercise of stock options. A separate earnings
per share calculation for the excess of carrying amount of
preferred stock over the fair value of consideration
transferred to the holder of the preferred stock added to
primary net income is also included. For the 1993 periods,
common stock equivalents are excluded as their effect is
anti-dilutive. Net income (loss) per share were calculated
as follows:
<PAGE>
<PAGE> 10
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
5. Income (loss) Per Share (continued)
Three Months Six Months
Ended June 30, Ended June 30,
----------------- ----------------
1994 1993 1994 1993
---- ---- ----- ----
Shares outstanding:
Weighted average
shares outstanding 51,533 51,436 51,522 51,433
Share equivalents 455 -- 445 --
------- ------- ------- -------
Adjusted shares
outstanding 51,988 51,436 51,967 51,433
======= ======= ======= =======
Net Income (Loss) $506,761 $(16,614) $491,666 $(31,206)
Excess carrying value
of preferred stock
over fair value of
consideration
transferred 783,823 -- 783,823 --
------- ------- ------- -------
Total $1,290,584 $(16,614) $1,275,489 $(31,206)
========== ========= ========== =========
Net Income (loss)
per share:
Primary income
(loss) per
share $9.75 $(0.32) $9.46 $(0.61)
Amount per share
excess carrying value
of preferred stock
over fair value of
consideration
transferred 15.08 -- 15.08 --
------- ------- ------- -------
(continued)<PAGE>
<PAGE> 11
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
5. Income (loss) Per Share (continued)
Three Months Six Months
Ended June 30, Ended June 30,
----------------- ----------------
1994 1993 1994 1993
---- ---- ----- ----
Net Income (loss) per
share including excess
of carrying value of
preferred stock over
fair value of
consideration
transferred $24.83 $(0.32) $24.54 $(0.61)
====== ======= ====== =======
<PAGE>
<PAGE> 12
PART I. FINANCIAL INFORMATION
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
LIN BROADCASTING CORPORATION AND SUBSIDIARIES
Management's Discussion and Analysis of Financial
Condition and Results of Operations
RESULTS OF OPERATIONS
1994 v. 1993
The Company s net revenues for the second quarter and first six
months of 1994 increased 28% versus the same periods in 1993.
Net revenues for the Company s consolidated cellular operations
for the three and six month periods ended June 30, 1994 increased
35% and 33%, respectively, over the 1993 comparable periods. The
increases in cellular revenues were principally due to a 44%
increase in the subscriber base at the consolidated cellular
operations since the second quarter of 1993 offset in part by a
2% decrease in average monthly revenue per subscriber. Net
revenues for the media operations increased 10% for the three and
six month periods ended June 30, 1994, from the same periods in
the prior year, reflecting continued improvement in the local
economies where the Company operates, which stimulated increased
advertiser spending.
Direct costs and expenses increased 37% and 42% during the second
quarter and first half of 1994, respectively, over the same
periods last year. The increases were primarily the result of
higher marketing costs associated with accelerated growth in the
cellular subscriber base, as well as higher customer support and
administrative costs at the consolidated cellular operations.
Increases at the media operations were due to increased
programming and administrative costs.
Depreciation expense increased 26% and 25% during the second
quarter and the first six months of 1994, respectively, over the
prior year due primarily to higher levels of cellular property
and equipment placed in service at the consolidated cellular
ventures.
The loss on disposal of equipment in 1993 was related to a write-
down at the Dallas venture during the second quarter of 1993 as a
decision was made to replace the Dallas cellular system. As a
result, minority interests in net income (loss) of consolidated
subsidiaries was significantly affected during the same period as
the Dallas minority interest holders absorbed their share of the
loss.
<PAGE>
<PAGE> 13
PART I. FINANCIAL INFORMATION
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
RESULTS OF OPERATIONS (continued)
Equity in income of unconsolidated cellular affiliates increased
during the quarter ended June 30, 1994 compared to the same
period in 1993 due primarily to increased revenue and income at
those cellular ventures. The revenues of the unconsolidated
cellular affiliates increased 33% and 32% for the three and six
month periods ended June 30, 1994 respectively, compared to the
same periods in the prior year, due to increases in the
subscriber bases since June 1993, partially offset by a decline
in average monthly revenue per subscriber. Direct costs and
expenses for these affiliates were up 38% and 39% for the second
quarter and first half of 1994, respectively, over the comparable
periods in 1993, due to higher marketing, customer support and
administrative costs related to growth in the subscriber base.
The gain on redemption of Preferred Stock resulted from the
redemption of all the Redeemable Preferred Stock of LCH, a
subsidiary of the Company, as discussed in Note 3 to the
Condensed Consolidated Financial Statements above. As a result
of this transaction, the provision for Preferred Stock dividends
of $33.6 million was not made during the quarter and will not be
made in the future.
Interest expense (which includes the amortization of financing
and commitment fees) increased slightly during the second quarter
but decreased for the first six months of 1994. The increase in
the second quarter was primarily due to Company's additional
borrowings to finance the New York minority interest acquisition
and the Connecticut RSA #1 as discussed in Note 3 to the
Condensed Consolidated Financial Statements and higher interest
rates during the quarter, offset in part by principal payments.
LEGISLATION, REGULATION AND COMPETITION
In addition to B Block cellular competition, the Company and its
unconsolidated affiliates expect to face competition from
enhanced specialized mobile services (ESMR) operators such as
Nextel, which has launched cellular-like services in the
Company's California markets. Other ESMR networks have begun to
operate or construct networks in other cities.
In late 1993 and early 1994, the FCC adopted a series of rules
for the licensing of new messaging and voice-grade mobile
communications services, commonly called personal communications
services ("PCS"). For the first time, the FCC will assign <PAGE>
<PAGE> 14
PART I. FINANCIAL INFORMATION
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
LEGISLATION, REGULATION AND COMPETITION (continued)
spectrum to PCS licensees by means of auctions. In July 1994, the
FCC auctioned 10 national messaging licenses. Numerous regional
messaging licenses will be auctioned in the future, probably
later this year.
In addition to establishing a program to assign messaging - or
narrowband PCS licenses - the FCC has promulgated regulations for
issuing new voice-grade licenses - or broadband PCS licenses - by
means of auctions, which are expected to begin in December 1994.
Under FCC rules, as many as six broadband PCS licenses will be
issued for a given geographic area, increasing the likelihood of
additional competition for wireless services. Broadband PCS
licenses will be issued for 51 Major Trading Areas ("MTAs") and
493 Basic Trading Areas ("BTAs"), which are generally larger than
cellular MSAs and RSAs.
The FCC's broadband PCS rules allow the Company to bid on
licenses for MTAs and BTAs in areas in which it does not
currently have a significant cellular presence, and to acquire
broadband PCS licenses aggregating up to 40 MHz in such areas.
The Company is restricted to acquiring only one 10 MHz license,
however, in any area in which it maintains a significant
ownership interest in cellular networks.
The Omnibus Budget Reconciliation Act of 1993 and implementing
rules adopted by the FCC specify that cellular and other
commercial mobile providers should be subject to similar
regulatory treatment, including federal pre-emption of state rate
and entry regulation and exemption from tariffing requirements.
A state may petition the FCC for the right to regulate the rates
of commercial mobile providers but must demonstrate that rates
will be unreasonable without the state's regulatory oversight.
States that currently regulate cellular must petition the FCC by
August 10, 1994 in order to retain rate regulatory jurisdiction
while the petition is reviewed by the FCC. Some of the states in
which the Company operates cellular systems, such as California
and New York, currently regulate cellular rates and have chosen
to petition the FCC to retain their jurisdiction.
LIQUIDITY AND CAPITAL RESOURCES
The Company s principal sources of funds are its operations and
bank credit facilities. Cash provided by operating activities
totaled $100.2 million for the first six months of 1994, compared
to $90.3 million for the same period in 1993. The increase was <PAGE>
<PAGE> 15
PART I. FINANCIAL INFORMATION
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
LIQUIDITY AND CAPITAL RESOURCES (continued)
primarily due to improved operating results offset in part by a
decrease in cash received from equity affiliates, particularly
the Company's Los Angeles cellular affiliate. The Los Angeles
affiliate has increased its capital expenditures in order to
install digital cellular equipment throughout its network.
The Company has bank credit facilities for both its cellular
business and broadcast business. LIN Cellular Network, a wholly-
owned subsidiary of the Company and which holds all of the
Company's cellular interests, has two bank credit facilities.
Under the Senior Credit Facility, the Company had $1.5 billion
outstanding and $180 million available as of June 30, 1994.
Under the Senior Unsecured Facility, the Company had $150 million
outstanding and $50 million available as of June 30, 1994. The
Senior Unsecured Facility was entered into in June, 1994. With
the exception of the absence of security, a higher interest rate
and final maturity date of March 31, 2001, the terms and
conditions of the Senior Unsecured Facility are largely identical
to the Senior Credit Facility. LIN Television Corporation, a
wholly-owned subsidiary of the Company which owns six television
broadcast stations, had $199 million outstanding and no
additional funds available as of June 30, 1994 on its bank credit
facility.
Under its bank credit facilities, the Company must remain in
compliance with a series of financial covenants which compare the
levels of the Company s cellular and broadcast indebtedness to
its cellular and broadcast cash flows as of the end of each
quarter. Although the Company is currently in compliance with
all bank covenants and is making scheduled repayments, it will be
necessary for the Company to reduce debt or to increase cash flow
in order to remain in compliance. Further discussion of the
Company s bank credit facilities, including restrictions on
certain activities by the Company is set forth in the Company's
annual report on Form 10-K for the year ended December 31, 1993.
Cash used by investing activities increased substantially,
primarily due to the purchase of the additional interest in the
New York cellular system and the acquisition of Connecticut RSA
#1. In addition, the cellular operations continue to require
substantial capital to purchase additional cell sites and
switching equipment, including investments in digital cellular
equipment, in order to provide increased coverage areas and new
services. The Company has now launched commercial digital
cellular service in New York and Los Angeles and expects to begin <PAGE>
<PAGE> 16
PART I. FINANCIAL INFORMATION
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
LIQUIDITY AND CAPITAL RESOURCES (continued)
commercial service in Dallas during the third quarter of 1994.
In addition, in order to provide efficient and high-quality
support to the rapidly growing subscriber base, the Company
continues to invest in administrative support systems and
equipment.
Cash from financing activities increased due to additional
borrowings, offset, primarily by repayments of debt and cash paid
for the redemption of the Preferred Stock. The Company borrowed
$340 million from its Senior Credit Facility and its Senior
Unsecured Facility, of which $185 million was used for cellular
and television acquisitions, $130 million for repayments on its
Senior Credit Facility, and the remaining used in general
operations.
While the Company has generated sufficient cash to meet its
expenditure requirements, the Company continues to have
substantial debt service, and other operating and capital
requirements. In particular, amortization of the term portion of
the Company s Senior Credit Facility increases over the next
several years. The Company expects to have sufficient internally
generated funds to repay its indebtedness at maturity, however,
there can be no assurance that this will occur.
If the Company does not generate sufficient funds, it may seek to
issue additional debt through a private or public offering, sell
equity or sell certain cellular interests, broadcast properties
or other assets. There can be no assurance that the Company will
be able to obtain such additional financing or sell assets when
needed, or if it is able to obtain such financing or sell assets,
that the terms will be favorable to the Company or its
stockholders. Finally, the Company will be required by the terms
of its bank credit facilities to apply the proceeds of asset
sales under certain circumstances not reinvested in similar
assets to the repayment of loans thereunder.
It is the Company's policy to carefully monitor the state of its
business, cash requirements and capital structure. From time to
time, the Company may enter into transactions pursuant to which
debt is extinguished, including sales of assets or equity, joint
ventures, reorganizations or recapitalizations. There can be no
assurance that any further such transactions will be undertaken
or, if undertaken, will be favorable to stockholders.
<PAGE>
<PAGE> 17
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
The Company is from time to time a defendant in and is threatened
with various legal proceedings arising from its regular business
activities. The Company is also party to routine filings with
the FCC and state regulatory authorities and customary regulatory
proceedings pending in connection with interconnection, rates,
and practices and proceedings concerning the telecommunications
industry in general and other proceedings which management does
not expect to have a material adverse effect on the financial
position or results of operations of the Company.
In August 1993 and in December 1993, two dealers for the Los
Angeles cellular partnership filed lawsuits against the
partnership and certain other parties in the California state
court, seeking injunctive relief and monetary damages (Goldenwest
Cellular Corp. v. Los Angeles SMSA Ltd. Partnership; PacTel
Cellular; The Good Guys Inc., Case No. 715479 (Superior Court of
California, Orange County), and Autophone, Inc. v. Los Angeles
Cellular Telephone Co.; Los Angeles SMSA Ltd. Partnership; PacTel
Cellular, et al, Case No. 722299 (Superior Court of California,
Orange County)). The lawsuits allege various torts and statutory
violations, including price-fixing regarding cellular equipment
and service, below-cost sales of equipment, fraud, interference
with economic relationship, unfair competition, discrimination
among agents, and conspiracy. A third lawsuit addressing similar
facts and raising many of the same claims (Cellular Activators,
et al. v. Los Angeles Cellular Telephone Company, et al., Case
No. 729278 (Superior Court of California, Orange County)) was
filed in May 1994. A fourth suit was filed in February 1994
(Cel-Tech Communications, Inc. et al v. Los Angeles Cellular
Telephone Company et al, Case No. VC015535 (Superior Court of
California, Los Angeles County)) containing claims relating to
equipment sales and seeking injunctive relief, restitution and
monetary damages; these claims include unfair practices,
restraint of trade, tortious interference, and unfair competition
relating in part to allegations of below-cost sales of equipment.
Discovery is proceeding in all of these cases. The August 1993
and December 1993 cases have been consolidated. The partnership
intends to defend each lawsuit vigorously, believes that it has
meritorious defenses to the allegations contained in the
complaints, and does not expect that the decisions in these legal
proceedings will have a material adverse effect on its financial
position or results of operations.
In September 1993, a proposed class action lawsuit was filed by a
cellular subscriber in a District Court in Texas (Crowley and
Weemes v. Houston Cellular Telephone Co.; McCaw Cellular
Communications, Inc.; LIN Broadcasting Corp., et al., Case No.
93-0879, Harrison County, Texas, 71st Judicial District). The <PAGE>
<PAGE> 18
PART II. OTHER INFORMATION
Item 1. Legal Proceedings (continued)
lawsuit alleges that the renewal provisions and liquidated
damages provisions of the annual subscriber agreements of various
cellular carriers, including the Houston and Galveston cellular
partnerships and Metroplex Telephone Co., are void and
unenforceable, are contrary to public policy, and violate the
Texas Deceptive Trade Practices Act. The lawsuit also alleges
that defendants have violated the Texas Free Enterprise and
Antitrust Act of 1983 by agreeing to use the liquidated damage
provision to divide the cellular market in Texas. The plaintiffs
also seek damages and treble damages. No class has yet been
certified. The partnership intends to defend the lawsuit
vigorously, believes that it has meritorious defenses to the
allegations contained in the complaint, and does not expect that
the ultimate results of this legal proceeding will have a
material adverse effect on its financial position or results of
operations.
Item 4. Submission of Matters to a Vote of Security Holders
The Company's Annual Meeting of Stockholders was held on June 2,
1994.
The results of the voting on the following items were as follows:
(1) Election of the following directors to the Company's Board
of Directors to hold office for the ensuing year:
Nominee In Favor Withheld
Tom A. Alberg 47,521,828 172,033
James L. Barksdale 47,517,985 175,876
Harold S. Eastman 47,518,040 175,821
William G. Herbster 47,550,550 143,311
Wilma H. Jordan 47,554,639 139,222
Richard W. Kislik 47,550,570 143,291
Craig O. McCaw 47,521,498 172,363
Wayne M. Perry 47,045,671 648,190
(2) Amendments to the Company's Amended and Restated 1969 Stock
Option Plan.
In Favor Opposed Abstained Broker Non-Vote
47,213,708 254,645 60,450 165,058
<PAGE>
<PAGE> 19
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
(continued)
(3) Amendments to the indemnification provisions of the
Company's By-Laws.
In Favor Opposed Abstained Broker Non-Vote
46,534,995 932,660 61,148 165,058
Item 5. Other Information
(a) Attachment of supplemental financial data.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
10.01 Senior unsecured credit facility dated June 15,
1994
(b) Reports on Form 8-K
Two reports filed on form 8-K (1) dated May 25, 1994
reporting LIN's intention to distribute the Common Stock
of LIN Television Corporation to the Company's
stockholders on a tax-free basis; (2) dated June 24, 1994
reporting LIN's redemption of all the outstanding
Redeemable Preferred Stock of LCH in exchange for all of
the capital stock of a subsidiary of LCH.
The report dated June 24, 1994 includes pro forma
financial statements reflecting both transactions.
<PAGE>
<PAGE> 20
LIN BROADCASTING CORPORATION AND SUBSIDIARIES
SUPPLEMENTAL FINANCIAL DATA
(Dollars in thousands)
(Unaudited)
The following data is provided to assist in understanding the
financial results of LIN s cellular and media operations. The
cellular operating data has been prepared using "proportionate
consolidation." This presentation differs from the consolidation
methodology used to prepare the Company s principal financial
statements in accordance with generally accepted accounting
principles (GAAP). Proportionate consolidation details the
operating results of all LIN s cellular interests, including
those carried on the equity method in the GAAP financials,
weighted by LIN s ownership in those results.
Three Months Six Months
Ended June 30, Ended June 30,
----------------- ----------------
1994 1993 1994 1993
---- ---- ----- ----
Cellular:
Net revenues $249,807 $185,389 $472,202 $352,594
-------- -------- -------- --------
Direct costs and
expenses 75,867 53,097 145,670 103,259
Marketing 62,562 41,918 130,337 79,111
Depreciation 19,000 14,961 36,424 29,274
Amortization 20,228 18,974 39,205 37,947
Loss on disposal of
cellular equipment -- 26,471 -- 26,471
-------- -------- -------- --------
177,657 155,421 351,636 276,062
-------- -------- -------- --------
Operating income $72,150 $29,968 $120,566 $76,532
======== ======== ======== ========
Total subscribers 1,396,000 1,212,000 1,396,000 1,212,000
Proportionate
subscribers(1) 918,000 730,000 918,000 730,000
(continued)
<PAGE>
<PAGE> 21
LIN BROADCASTING CORPORATION AND SUBSIDIARIES
SUPPLEMENTAL FINANCIAL DATA (continued)
(Dollars in thousands)
(Unaudited)
Three Months Six Months
Ended June 30, Ended June 30,
----------------- ----------------
1994 1993 1994 1993
---- ---- ----- ----
Media:
Net revenues $48,679 $44,369 $90,593 $82,066
Direct costs and
expenses 26,940 25,193 54,504 50,461
Depreciation 1,724 1,706 3,431 3,410
Amortization 859 859 1,718 1,718
-------- -------- -------- --------
29,523 27,758 59,653 55,589
-------- -------- -------- --------
Operating income $19,156 $16,611 $30,940 $26,477
======== ======== ======== ========
(1) Calculated by multiplying (i) the total subscribers of a
licensee in which, as of the date specified, the Company
owned an interest, by (ii) the percentage ownership interest
in that licensee which the Company owned on such date.
<PAGE>
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
LIN Broadcasting Corporation
(Registrant)
DONALD GUTHRIE
-------------------------------
Date: August 15, 1994 Donald Guthrie
Senior Vice President - Finance
<PAGE>
<PAGE>
EXHIBIT INDEX
10.01 Senior unsecured credit facility dated June 15, 1994
EXECUTION COPY
$200,000,000
CREDIT AGREEMENT
Dated as of June 15, 1994
Among
LIN CELLULAR NETWORK, INC.,
as Borrower,
THE LENDERS NAMED HEREIN,
as Lenders,
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent,
and
THE BANK OF NOVA SCOTIA
and
THE TORONTO-DOMINION BANK,
as Managing Agents
<PAGE>
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms. . . . . . . . . . . . . . . . . . . . 1
1.02. Computation of Time Periods. . . . . . . . . . . . . . . . . 30
1.03. Accounting Terms and Computations. . . . . . . . . . . . . . 30
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. The Advances . . . . . . . . . . . . . . . . . . . . . . . . 30
2.02. Making the Advances. . . . . . . . . . . . . . . . . . . . . 31
2.03. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.04. Reduction of the Commitments . . . . . . . . . . . . . . . . 34
2.05. Repayment. . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.06. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.07. Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . 35
2.08. Conversion of Advances . . . . . . . . . . . . . . . . . . . 36
2.09. Interest Rate Determination. . . . . . . . . . . . . . . . . 37
2.10. Increased Costs, Etc.. . . . . . . . . . . . . . . . . . . . 37
2.11. Payments and Computations. . . . . . . . . . . . . . . . . . 38
2.12. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
2.13. Sharing of Payments, Etc.. . . . . . . . . . . . . . . . . . 42
2.14. Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . 42
2.15. Evidence of Indebtedness . . . . . . . . . . . . . . . . . . 42
ARTICLE III
CONDITIONS OF LENDING
3.01. Conditions Precedent to Initial Borrowing. . . . . . . . . . 43
3.02. Conditions Precedent to Each Borrowing . . . . . . . . . . . 46
3.03. Conditions Precedent to Certain Borrowings . . . . . . . . . 47
3.04. Determinations Under Sections 3.01, 3.02 and
3.03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower . . . . . . . 48
(a) Organization of the Loan Parties. . . . . . . . . . . . . 48
(b) Organization of the Borrower's Subsidiaries,
the Principal Cellular Partnerships and
Minority Entities . . . . . . . . . . . . . . . . . . . . 48
(c) Compliance with Law . . . . . . . . . . . . . . . . . . . 49
(d) Approvals . . . . . . . . . . . . . . . . . . . . . . . . 49
(e) Legal Effect. . . . . . . . . . . . . . . . . . . . . . . 50
(f) Financial Information . . . . . . . . . . . . . . . . . . 50
(g) Pro Forma Financial Information . . . . . . . . . . . . . 50
(h) Disclosure. . . . . . . . . . . . . . . . . . . . . . . . 51
(i) Material Litigation . . . . . . . . . . . . . . . . . . . 51
(j) ERISA Plans . . . . . . . . . . . . . . . . . . . . . . . 51
(k) No Reportable Event . . . . . . . . . . . . . . . . . . . 51
(l) Plan Funding. . . . . . . . . . . . . . . . . . . . . . . 51
(m) Post Retirement Benefit Obligations . . . . . . . . . . . 52
(n) No Catastrophic Events. . . . . . . . . . . . . . . . . . 52
(o) Compliance with Environmental Law . . . . . . . . . . . . 52
(p) No Burdensome Agreements. . . . . . . . . . . . . . . . . 52
(q) Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 52
(r) Investment Company Act of 1940. . . . . . . . . . . . . . 52
(s) Solvency. . . . . . . . . . . . . . . . . . . . . . . . . 53
(t) Condition of System . . . . . . . . . . . . . . . . . . . 53
(u) Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(v) Public Utility Holding Company Act. . . . . . . . . . . . 53
(w) Capital Stock . . . . . . . . . . . . . . . . . . . . . . 53
(x) No Limitations on Dividends and
Distributions . . . . . . . . . . . . . . . . . . . . . . 54
(y) Licenses. . . . . . . . . . . . . . . . . . . . . . . . . 54
(z) Regulation of the Lenders . . . . . . . . . . . . . . . . 54
(aa) Existing Indebtedness . . . . . . . . . . . . . . . . . . 54
(bb) Material Agreements . . . . . . . . . . . . . . . . . . . 54
(cc) Ownership . . . . . . . . . . . . . . . . . . . . . . . . 55
(dd) Title to Property . . . . . . . . . . . . . . . . . . . . 55
(ee) Deposit Accounts. . . . . . . . . . . . . . . . . . . . . 55
<PAGE>
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants. . . . . . . . . . . . . . . . . . . . 56
(a) Compliance with Laws, Etc.. . . . . . . . . . . . . . . . 56
(b) Payment of Taxes, Etc.. . . . . . . . . . . . . . . . . . 56
(c) Maintenance of Insurance. . . . . . . . . . . . . . . . . 56
(d) Preservation of Corporate and Partnership
Existence, Etc. . . . . . . . . . . . . . . . . . . . . . 57
(e) Visitation Rights . . . . . . . . . . . . . . . . . . . . 57
(f) Keeping of Books. . . . . . . . . . . . . . . . . . . . . 57
(g) Maintenance of Properties, Etc. . . . . . . . . . . . . . 57
(h) Performance of Material Agreements. . . . . . . . . . . . 58
(i) Transactions with Affiliates. . . . . . . . . . . . . . . 58
(j) Reporting Requirements. . . . . . . . . . . . . . . . . . 59
(k) Maintenance of Corporate Separateness . . . . . . . . . . 63
5.02. Negative Covenants . . . . . . . . . . . . . . . . . . . . . 64
(a) Liens, Etc. . . . . . . . . . . . . . . . . . . . . . . . 64
(b) Indebtedness. . . . . . . . . . . . . . . . . . . . . . . 65
(c) Mergers, Etc. . . . . . . . . . . . . . . . . . . . . . . 67
(d) Sales, Etc. of Assets . . . . . . . . . . . . . . . . . . 67
(e) Investments in Other Persons. . . . . . . . . . . . . . . 68
(f) Dividends, Etc. . . . . . . . . . . . . . . . . . . . . . 69
(g) Change in Nature of Business. . . . . . . . . . . . . . . 70
(h) Compliance with ERISA . . . . . . . . . . . . . . . . . . 71
(i) Plan Amendments . . . . . . . . . . . . . . . . . . . . . 71
(j) Accounting Changes. . . . . . . . . . . . . . . . . . . . 71
(k) Prepayments, Amendments, Etc. of Debt . . . . . . . . . . 71
(l) Amendments, Etc.. . . . . . . . . . . . . . . . . . . . . 71
(m) Negative Pledge . . . . . . . . . . . . . . . . . . . . . 72
(n) Preferred Stock . . . . . . . . . . . . . . . . . . . . . 72
(o) Service Agreements. . . . . . . . . . . . . . . . . . . . 72
(p) Holding Company Status. . . . . . . . . . . . . . . . . . 73
(q) Minority Entities . . . . . . . . . . . . . . . . . . . . 73
(r) Deposit Accounts. . . . . . . . . . . . . . . . . . . . . 73
5.03. Financial Covenants. . . . . . . . . . . . . . . . . . . . . 73
(a) Consolidated Operating Cash Flow to
Consolidated Debt Service Ratio . . . . . . . . . . . . . 73
(b) Consolidated Debt to Consolidated Operating
Cash Flow Ratio . . . . . . . . . . . . . . . . . . . . . 73
(c) Consolidated Debt . . . . . . . . . . . . . . . . . . . . 74
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE VII
THE AGENTS
7.01. Authorization and Action . . . . . . . . . . . . . . . . . . 79
7.02. Agents' Reliance, Etc. . . . . . . . . . . . . . . . . . . . 80
7.03. TD (Texas), Toronto-Dominion and Scotiabank and
Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . 80
7.04. Lender Credit Decision . . . . . . . . . . . . . . . . . . . 81
7.05. Indemnification. . . . . . . . . . . . . . . . . . . . . . . 81
7.06. Successor Administrative Agent; Successor
Managing Agents. . . . . . . . . . . . . . . . . . . . . . . 81
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . 83
8.02. Notices, Etc.. . . . . . . . . . . . . . . . . . . . . . . . 83
8.03. No Waiver; Remedies. . . . . . . . . . . . . . . . . . . . . 84
8.04. Costs; Expenses. . . . . . . . . . . . . . . . . . . . . . . 84
8.05. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . 86
8.06. Binding Effect; Survival . . . . . . . . . . . . . . . . . . 86
8.07. Assignments and Participations . . . . . . . . . . . . . . . 87
8.08. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 90
8.09. Execution in Counterparts. . . . . . . . . . . . . . . . . . 90
8.10. Confidentiality. . . . . . . . . . . . . . . . . . . . . . . 90
8.11. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . 91
<PAGE>
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Existing Indebtedness
Schedule III - Terms of Subordination
Schedule IV - Disclosed Litigation
Schedule V - Subsidiaries, Principal Cellular Partnerships
and Minority Entities
Schedule VI - Approvals
Schedule VII - ERISA Plans
Schedule VIII - Limitation on Dividends and Distributions
Schedule IX - Material Agreements
Schedule X - Existing Liens and Rights of First Refusal<PAGE>
<PAGE>
EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Amendment
Exhibit E - Form of Solvency Certificate
Exhibit F - Form of Opinion of Vice President-Law of the
Borrower
Exhibit G - Form of Opinion of FCC counsel to the
Borrower
Exhibit H - Form of Opinion of PUC counsel to the
Borrower
Exhibit I - Form of Opinion of special counsel to the
Managing Agents<PAGE>
<PAGE>
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of June 15, 1994 among LIN
CELLULAR NETWORK, INC., a Delaware corporation (the "Borrower"),
the banks and financial institutions (together with their
assigns, the "Lenders") listed on the signature pages hereof,
TORONTO DOMINION (TEXAS), INC. ("TD (Texas)"), as administrative
agent for the Lenders hereunder (together with any successor
appointed pursuant to Article VII, the "Administrative Agent"),
THE BANK OF NOVA SCOTIA ("Scotiabank") and THE TORONTO-DOMINION
BANK ("Toronto-Dominion"), as managing agents for the Lenders
hereunder (together with any successors appointed pursuant to
Article VII, the "Managing Agents"). Capitalized terms used in
this Agreement are defined in Article I.
PRELIMINARY STATEMENTS
(1) The Borrower has requested that the Lenders
make Advances to the Borrower in an aggregate amount up to
$200,000,000 to finance the acquisition of certain cellular
properties and for general corporate purposes.
(2) The Lenders are willing, upon the terms and
conditions set forth herein, to make Advances under the Term
Facility and the Revolving Credit Facility to the Borrower for
the purposes described herein.
NOW, THEREFORE, in consideration of the premises and
of the mutual covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"Acquisitions" has the meaning specified in Section
2.14.
"Additional Working Capital Debt" has the meaning
specified in Section 6.01(q).
"Adjusted CD Rate" means, for the Interest Period for
each Adjusted CD Rate Advance comprising part of the same
Borrowing, an interest rate per annum equal to the sum of:
(a) the rate per annum obtained by dividing (i)
the rate of interest determined by the Administrative
Agent to be the average (rounded upward to the nearest
whole multiple of 1/100 of 1% per annum, if such
average is not such a multiple) of the consensus bid
rate determined by each of the Reference Lenders for
the bid rates per annum, at 9:00 A.M. (New York City
time) (or as soon thereafter as practicable) on the
first day of such Interest Period, of New York
certificate of deposit dealers of recognized standing
selected by such Reference Lender for the purchase at
face value of certificates of deposit of such
Reference Lender in an amount substantially equal to
such Reference Lender's Adjusted CD Rate Advance
comprising part of such Borrowing and with a maturity
equal to such Interest Period, by (ii) a percentage
equal to 100% minus the Adjusted CD Rate Reserve
Percentage (as defined below) for such Interest
Period, plus
(b) the Assessment Rate (as defined below) for
such Interest Period.
"Adjusted CD Rate Advance" means an Advance that bears
interest as provided in Section 2.06(b).
"Adjusted CD Rate Reserve Percentage" for the Interest
Period for each Adjusted CD Rate Advance comprising part of
the same Borrowing means the reserve percentage applicable
on the first day of such Interest Period under regulations
issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, but not limited
to, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System
in New York City with deposits exceeding one billion Dollars
with respect to liabilities consisting of or including
(among other liabilities) Dollar nonpersonal time deposits
in the United States with a maturity equal to such Interest
Period. The "Assessment Rate" for the Interest Period for
each Adjusted CD Rate Advance comprising part of the same
Borrowing means the annual assessment rate estimated by the
Administrative Agent on the first day of such Interest
Period for determining the then current annual assessment
payable by Toronto-Dominion to the Federal Deposit Insurance
Corporation (or any successor) for insuring Dollar deposits
of Toronto-Dominion in the United States. The Adjusted CD
Rate for each Interest Period for each Adjusted CD Rate
Advance comprising part of the same Borrowing shall be
determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the
Administrative Agent from the Reference Lenders on the first
day of such Interest Period, subject, however, to the
provisions of Sections 2.02(b) and 2.09.
"Administrative Agent" has the meaning specified in
the recital of parties to this Agreement.
"Administrative Agent's Account" means the account of
the Administrative Agent maintained by the Administrative
Agent at the Federal Reserve Bank of New York or as
otherwise designated in a written notice by the
Administrative Agent to the Managing Agents, the Lenders and
the Borrower from time to time.
"Advance" means a Term Advance or a Revolving Credit
Advance.
"Affiliate" means, as to any Person, any other Person
that, directly or indirectly, controls, is controlled by, or
is under common control with, such Person or is a spouse of
or any other relative (by blood, adoption or marriage) of
such Person within the third degree or is a partner, member,
director, officer or employee of such Person. For purposes
of this definition, the term "control" (including the terms
"controlling", "controlled by" and "under common control
with") of a Person means the possession, direct or indirect,
of the power to vote 10% or more of the Voting Stock of such
Person or to direct or cause the direction of the management
and policies of such Person, whether through the ownership
of Voting Stock or partnership interests or by contract or
otherwise.
"Agents" means, collectively, the Administrative Agent
and the Managing Agents.
"Amendment" means Amendment No. 2 to the 1990 Credit
Agreement dated as of May 31, 1994.
"Applicable Lending Office" means, for each Lender,
such Lender's Domestic Lending Office in the case of a Base
Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance and such Lender's LIBO Lending
Office in the case of a LIBO Rate Advance.
"Applicable Margin" means (a) for the period
commencing on the date of the initial Borrowing through, and
including, June 30, 1996 (i) for LIBO Rate Advances, 2-1/2%,
(ii) for Adjusted CD Rate Advances, 2-5/8% and (iii) for
Base Rate Advances, 1-1/2% and (b) at all times thereafter
for each Advance, a percentage per annum as set forth below
under the applicable LIBO Rate Advances column, Adjusted CD
Rate Advances column or Base Rate Advances column during the
period set forth below:
Period LIBO Rate Adjusted CD Base Rate
Advances Rate Advances Advances
-------------------------------------------------------
July 1, 1996
through
June 30, 1997 3% 3-1/8% 2%
July 1, 1997
through
June 30, 1998 3-1/2% 3-5/8% 2-1/2%
July 1, 1998
and all times
thereafter 4% 4-1/8% 3%
"Appropriate Lender" means, as to any Facility, a
Lender that has a Commitment for a portion of such Facility.
"Approved Accountants" means any of Arthur Andersen &
Co., Price Waterhouse, KPMG Peat Marwick, Deloitte & Touche,
Coopers & Lybrand and Ernst & Young (or any of their
respective successors).
"Approved Cellular Assets" means any Franchise Interest
in an MSA that meets the following criteria: (a) the
Cellular Entity in which such Franchise Interest is being
acquired is (or would become after giving effect to the
acquisition of such Franchise Interest) one of the
Borrower's Subsidiaries and (b) such Franchise Interest is
located in one of the ten largest MSAs (measured at the time
of acquisition by reference to the then most recent Donnelly
Marketing Service population estimates).
"Approved Services Agreement" means the Approved
Services Agreement dated as of August 1, 1990 between the
Borrower and LIN.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an Eligible
Assignee, and accepted by the Administrative Agent, in
accordance with Section 8.07 and in substantially the form
of Exhibit A hereto.
"Attributable Share" means, for purposes of determining
the income, Indebtedness, Pops, Operating Cash Flow, Cash
Equivalents or other measured characteristic of any Person,
the percentage ownership interest in such Person held
directly or indirectly by the Borrower.
"AT&T" means AT&T Corporation, a New York corporation.
"AT&T Merger Agreement" means the Agreement and Plan of
Merger dated August 16, 1993 among AT&T, Ridge and McCaw, as
in effect on the date hereof, as such agreement may be
amended to the extent that any such amendment is not adverse
to the rights and remedies of any Agent or any Lender under
this Agreement or the ability of the Borrower to perform its
obligations hereunder.
"Base Rate" means a fluctuating interest rate per annum
as shall be in effect from time to time, which rate per
annum shall at all times be equal to the rate of interest
announced publicly by Toronto-Dominion in New York, New
York, from time to time, as its base rate; provided that,
with respect to any Advance that is made during a Year End
Period, such rate per annum for such Advance during such
period (regardless of whether the Interest Period for such
Advance shall extend beyond such period) shall at all times
be equal to the higher of such base rate and a rate equal to
1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears
interest as provided in Section 2.06(c).
"Board of Directors" of any Person means the board of
directors of such Person or any duly authorized committee of
such board.
"Borrower" has the meaning specified in the recital of
parties to this Agreement.
"Borrower Restrictive Agreement" has the meaning
specified in Section 6.01(q).
"Borrower's Account" means the account of the Borrower
at a depository of the Borrower's choosing and otherwise as
designated by the Borrower in a written notice to the
Administrative Agent.
"Borrowing" means a Term Borrowing or a Revolving
Credit Borrowing.
"Broadcast Borrower" means LIN Television Corporation,
a Delaware corporation.
"Business Day" means a day of the year on which banks
are not required or authorized to close in New York City
and, if the applicable Business Day relates to any LIBO Rate
Advances, on which dealings are carried on in the London
interbank market.
"Capital Expenditures" means, for any period, the sum
of (without duplication) (a) all expenditures during such
period for real property or improvements and equipment
utilized in a Cellular Business and other business
operations, or for replacements or substitutions therefor or
additions thereto, that have a useful life of more than one
year plus (b) the entire principal amount of any
Indebtedness assumed or incurred in connection with any such
expenditures.
"Capitalized Leases" has the meaning specified in
clause (e) of the definition of Indebtedness.
"Cash Equivalents" means any of the following, to the
extent owned free and clear of all Liens: (a) Dollars on
hand and in insured demand deposit accounts; (b) direct
obligations of the Government of the United States or any
agency or instrumentality thereof or obligations
unconditionally guaranteed by the full faith and credit of
the United States; (c) certificates of deposit or bankers'
acceptances that become payable within one year after the
date of issuance and that are issued by (i) any Lender or
(ii) any other commercial bank organized under the laws of
the United States or any state thereof or any other country
that is a member of the OECD or any political subdivision of
such country and having combined capital and surplus of at
least $1,000,000,000; (d) commercial paper issued by any
corporation organized under the laws of any state or the
United States with a rating of at least "Prime-1" (or the
equivalent grade) by Moody's Investors Service, Inc. or "A-
1" (or the equivalent grade) by Standard & Poor's
Corporation; and (e) repurchase and reverse repurchase
agreements with any securities dealer with respect to
securities of the types specified in clauses (a) through (d)
in respect of an aggregate principal amount of securities
not in excess of $25,000,000 and that are fully
collateralized by any of the securities specified in clauses
(a) through (d) above.
"CD Lending Office" means, for any Lender, the office
of such Lender specified as its "CD Lending Office" opposite
its name in Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no
such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Administrative
Agent.
"Cellular Assets" means each Cellular System or
Franchise Interest owned directly or indirectly by the
Borrower, any of the Borrower's Subsidiaries or any
Principal Cellular Partnership.
"Cellular Business" means the business of operating one
or more Cellular Systems and other businesses directly
related thereto.
"Cellular Entity" means a Cellular Licensee, Cellular
Permittee or Cellular Tentative Selectee.
"Cellular Licensee" means any Person that is authorized
by the FCC to own, control and operate a Cellular System in
an MSA or RSA.
"Cellular Permittee" means a Person that is authorized
by the FCC to construct a Cellular System in an MSA or RSA.
"Cellular System" means a domestic public cellular
radio telecommunications service system licensed under Part
22 of the FCC's Rules.
"Cellular Tentative Selectee" means a Person designated
in a public notice issued by the FCC to become a Cellular
Permittee unless and until such designation shall have been
reversed or revoked by the FCC.
"Class B Shares" means Class B Common Stock, par value
$.01, of McCaw.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated
and the rulings issued thereunder.
"Commitment" means a Term Commitment or a Revolving
Credit Commitment.
"Compliance Certificate" means a certificate of a
Financial Officer of the Borrower in substantially the form
of Exhibit B hereto to be delivered pursuant to
Sections 5.01(j)(iii) and (iv).
"Confidential Information" has the meaning specified in
Section 8.10.
"Consolidated" refers to the consolidation of financial
statements in accordance with GAAP.
"Consolidated Debt" means, for any date of
determination, the sum of (without duplication):
(a) the Consolidated Indebtedness of the Borrower
and the Borrower's wholly owned Subsidiaries; and
(b) the Attributable Share of the Indebtedness of
each of the Borrower's other Subsidiaries and each
Principal Cellular Partnership;
provided that Indebtedness owing by one of the Borrower's
Subsidiaries or by a Principal Cellular Partnership to the
Borrower or to another of the Borrower's Subsidiaries or to
another Principal Cellular Partnership or by the Borrower to
any of the Borrower's Subsidiaries or to a Principal
Cellular Partnership shall not be included in this
calculation.
"Consolidated Debt Service" means, for any date of
determination, the sum (without duplication) of all amounts
paid during the current fiscal quarter and all amounts
scheduled to be paid during the three consecutive fiscal
quarters following such current fiscal quarter with respect
to:
(a) scheduled reductions of Consolidated Debt
(other than the Facilities) during such current fiscal
quarter and of such Consolidated Debt outstanding on
the date of determination for each such other fiscal
quarter;
(b) reductions of the Commitments pursuant to
Section 2.04(b)(i) of the 1990 Credit Agreement as in
effect on the date hereof;
(c) interest on such Consolidated Debt and the
Facilities (excluding amortization of debt discount and
expense but including imputed interest on capital lease
obligations and assuming, in the case of fluctuating
interest rates that cannot be determined in advance,
that the rate in effect on the date of determination
will remain in effect throughout such period);
(d) commitment, agency or other fees with respect
to such Consolidated Debt and the Facilities (other
than, in the case of such other fees, amounts paid to
lenders upon the initial incurrence of such
Consolidated Debt to induce such lenders to provide
such Consolidated Debt);
(e) dividends and other distributions (other than
dividends payable in additional shares of such
Preferred Stock) with respect to Preferred Stock
outstanding during such current fiscal quarter and with
respect to Preferred Stock outstanding on the date of
determination for each such other fiscal quarter, after
giving effect to any such Preferred Stock proposed on
the date of determination to be created and to the
concurrent retirement of any other Preferred Stock on
such date; and
(f) all interest rate swap agreements outstanding
during such current fiscal quarter and all interest
rate swap agreements outstanding on the date of
determination for each such other fiscal quarter, less
amounts, if any, received during the current fiscal
quarter under all interest rate swap agreements and
amounts scheduled to be received during each such other
fiscal quarter under all interest rate swap agreements
outstanding on the date of determination, such
calculation to assume that, in the case of such
agreements outstanding on the date of determination,
the reference rate under each such agreement in effect
on the date of determination will remain in effect
throughout such period;
provided that principal and interest in respect of any
guarantee for borrowed money shall be deemed to be payable
as if (i) the principal amount of such guarantee were
subject to the same rate of repayment as the Indebtedness
guaranteed and (ii) interest in respect thereof were payable
at the same rate as the Indebtedness guaranteed.
"Consolidated Operating Cash Flow" means, for any
period, the sum of (without duplication):
(a) Consolidated Operating Cash Flow of the
Borrower and the Borrower's wholly owned Subsidiaries
and
(b) the Attributable Share of the Operating Cash
Flow of each of the Borrower's other Subsidiaries and
each Principal Cellular Partnership.
"Conversion", "Convert" and "Converted" each refers to
a conversion of Advances of one Type into Advances of the
other Type pursuant to Section 2.08 or 2.10.
"Dallas Partnership" means Metroplex Telephone Company,
a partnership organized pursuant to the Dallas Partnership
Agreement.
"Dallas Partnership Agreement" means the Amended and
Restated Partnership Agreement dated as of November 9, 1984
among LIN Cellular Communications Corporation, D/FW Signal,
Inc., MCI Cellular Telephone Co., Cellular Mobile Systems of
Texas, Inc. and Mid-America Cellular Systems, Inc.
"Default" means any Event of Default or any event that
would constitute an Event of Default but for the requirement
that notice be given or time elapse or both.
"Designated Party" has the meaning specified in the
Shareholders Agreement as in effect on February 26, 1990.
"Disclosed Litigation" has the meaning specified in
Section 3.01(c).
"Dollars" and the sign "$" each mean lawful money of
the United States of America.
"Domestic Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Domestic
Lending Office" set forth opposite its name in Schedule I
hereto or in the Assignment and Acceptance pursuant to which
it became a Lender, or such other office of such Lender as
such Lender may from time to time specify to the Borrower
and the Administrative Agent.
"Economic Ownership" means, for purposes of determining
the percentage of Voting Stock legally and beneficially
owned by AT&T, (a) all Voting Stock of which AT&T is the
sole legal and beneficial owner and (b) a portion of the
Voting Stock legally and beneficially owned by a Majority
Entity equal to the percentage ownership interest that AT&T
holds directly or indirectly in such Majority Entity.
Notwithstanding any other provision set forth herein, Voting
Stock legally or beneficially owned by an entity that is not
a Majority Entity (other than AT&T) shall not be included in
the determination of Economic Ownership.
"Eligible Assignee" means (a) a commercial bank
organized under the laws of the United States, or any state
thereof, and having total assets in excess of $500,000,000
and a combined capital and surplus of at least $100,000,000;
(b) a savings and loan association or savings bank organized
under the laws of the United States, or any state thereof,
and having total assets in excess of $500,000,000 and a
combined capital and surplus of at least $100,000,000; (c) a
commercial bank organized under the laws of any other
country that is a member of the OECD or has concluded
special lending arrangements with the International Monetary
Fund associated with its General Arrangements to Borrow or
of the Cayman Islands, or a political subdivision of any
such country, and having total assets in excess of
$500,000,000 and a combined capital and surplus of at least
$100,000,000; provided that such bank is acting through a
branch or agency located in the United States; (d) the
central bank of any country that is a member of the OECD;
(e) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership,
trust or other entity) that is engaged in making, purchasing
or otherwise investing in commercial loans in the ordinary
course of its business, and having total assets in excess of
$250,000,000 and (other than in the case of a fund or trust)
a combined capital and surplus of at least $100,000,000; and
(f) any Affiliate of any Lender acceptable to the Borrower;
provided that such acceptance by the Borrower shall not be
unreasonably withheld (and shall be deemed to be given if
the Borrower fails to respond to a written request therefor
within ten Business Days after its receipt thereof).
"Environmental Law" means any law, rule, regulation,
order, writ, judgment, injunction, decree, determination or
award relating to the environment, health or safety or to
the release of any materials into the environment,
including, without limitation, the Clean Air Act, as
amended, the Clean Water Act of 1977, as amended, the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, the Hazardous Materials
Transportation Act, as amended, the Toxic Substance Control
Act, as amended, and the Resource Conservation and Recovery
Act of 1976, as amended.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" of any Person means any other Person
that for purposes of Title IV of ERISA is a member of such
Person's controlled group, or under common control with such
Person, within the meaning of Section 414 of the Code and
the regulations promulgated and rulings issued thereunder.
"ERISA Event" means (a) a reportable event, within the
meaning of Section 4043 of ERISA, unless the 30-day notice
requirement with respect thereto has been waived by the
PBGC; (b) the provision by the administrator of any Plan of
a notice of intent to terminate such Plan, pursuant to
Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e)
of ERISA); (c) the cessation of operations at a facility in
the circumstances described in Section 4062(e) of ERISA; (d)
the withdrawal by the Borrower or an ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of
ERISA; (e) the failure by the Borrower or any ERISA
Affiliate to make a payment to a Plan required under Section
302(f)(1) of ERISA; (f) the adoption of an amendment to a
Plan requiring the provision of security to such Plan,
pursuant to Section 307 of ERISA; or (g) the institution by
the PBGC of proceedings to terminate a Plan, pursuant to
Section 4042 of ERISA, or the occurrence of any event or
condition that might constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Events of Default" has the meaning specified in
Section 6.01.
"Excess Cash Flow" means, for any fiscal year, the sum,
if positive, of Consolidated Operating Cash Flow for such
fiscal year plus the Net Cash Proceeds from extraordinary
transactions received by the Borrower or any of the
Borrower's wholly owned Subsidiaries and the Attributable
Share of the Net Cash Proceeds from extraordinary
transactions received by each of the Borrower's other
Subsidiaries and each Principal Cellular Partnership during
the relevant fiscal year less (without duplication):
(a) scheduled repayments and mandatory
prepayments (other than prepayments in respect of 1990
Commitment reductions pursuant to Section 2.04(b)(iii)
of the 1990 Credit Agreement) of principal of
Consolidated Debt and dividends and other distributions
scheduled to be paid with respect to capital stock
included in Consolidated Debt (other than dividends
payable in additional shares of such capital stock and
any amounts applied to enable LCH to pay dividends on
the LCH Preferred Stock);
(b) voluntary prepayments of principal of the
Facilities pursuant to Section 2.07(a) to the extent
that such amounts may not be reborrowed pursuant to
Section 2.01(a) or (b) and voluntary prepayments of
principal under Section 2.07(a) of the 1990 Credit
Agreement to the extent that such amounts may not be
reborrowed pursuant to the terms thereof;
(c) premium charges and Interest Expense on
Consolidated Debt;
(d) commitment, agency or other fees with respect
to Consolidated Debt;
(e) Capital Expenditures by the Borrower or any
of the Borrower's wholly owned Subsidiaries and the
Attributable Share of Capital Expenditures by each of
the Borrower's other Subsidiaries and each Principal
Cellular Partnership; and
(f) cash expenditures for losses with respect to
extraordinary items incurred by the Borrower or any of
the Borrower's wholly owned Subsidiaries and the
Attributable Share of such cash expenditures for losses
incurred by each of the Borrower's other Subsidiaries
and each Principal Cellular Partnership;
in the case of each of clauses (a) through (f) above, to the
extent, but only to the extent, that the amounts so deducted
are actually paid during such fiscal year.
"Existing Indebtedness" means the Indebtedness of the
Borrower, the Borrower's Subsidiaries and the Principal
Cellular Partnerships as of the date hereof, as set forth in
Schedule II hereto.
"Existing Partnership Agreements" means (a) the Houston
Partnership Agreement, (b) the Dallas Partnership Agreement,
(c) the Los Angeles Partnership Agreement and (d) the New
York Partnership Agreement.
"Facilities" means the Term Facility and the Revolving
Credit Facility.
"FCC" means the Federal Communications Commission or
any successor agency or entity performing substantially the
same functions.
"FCC License" means any mobile telephone, cellular
telephone, mobile satellite, microwave or other
communications license, permit, certificate of compliance,
franchise, approval or authorization granted or issued by
the FCC, whether for control, ownership, construction or
operation of or provision of service by a Cellular System.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions, with members of the
Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of
the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.
"Final Maturity Date" means the earlier of September
30, 2000 and the date of termination in whole of the
Commitments pursuant to Section 2.04 or 6.01.
"Financial Officer" means, as to any Person, the chief
executive officer, the chief financial officer, any vice
president-finance, the treasurer or the controller of that
Person.
"Franchise" means a franchise, permit or license
(including, without limitation, an FCC License), designation
(including, without limitation, as a Cellular Tentative
Selectee) or certificate granted by the United States or any
other country or state or any city, town, county or other
municipality (to the extent subject to regulation thereby),
public utility commission or public service commission,
power company or any other regulatory authority pursuant to
which a Person has the right to own, control, construct or
operate a Cellular System.
"Franchise Interest" means a direct or indirect
ownership interest in any Person that is a Cellular Entity.
"GAAP" has the meaning specified in Section 1.03.
"Geographically Related RSA" means (a) an RSA located
adjacent to or within 25 miles of an MSA Cellular System
controlled by the Borrower, any of the Borrower's
Subsidiaries or any Principal Cellular Partnership and (b)
each of NY-5, NY-6, CT-1 and CA-4, as such terms are defined
by the FCC for purposes of Cellular System licensing.
"Hazardous Materials" means all materials subject to
any Environmental Law, including, without limitation,
materials listed in 49 C.F.R. Section 172.101, materials defined
as hazardous pursuant to Section 101(14) of the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, flammable, explosive or
radioactive materials, hazardous or toxic wastes or
substances, petroleum or petroleum distillates, PCBs or
asbestos or materials containing asbestos.
"Hedge Agreements" means interest rate swap, cap,
ceiling, hedge or other interest rate protection agreements
designed to hedge against fluctuations in interest rates.
"Houston Partnership" means Houston Cellular Telephone
Company.
"Houston Partnership Agreement" means the Amended and
Restated Partnership Agreement dated as of December 12,
1984, among Metro Mobile CTS, Cellular Systems, Inc. and
Houston Mobile Cellular Communications Company, as amended
through August 1, 1990.
"Indebtedness" of any Person means (without
duplication):
(a) all indebtedness of such Person for borrowed
money;
(b) all obligations of such Person for the
deferred purchase price of capital assets (including
amounts owed to sellers of Franchise Interests or
Cellular Systems for the acquisition thereof);
(c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments
(other than performance bonds, letters of credit and
similar undertakings in connection with the
construction, development or operation of a business,
to the extent such undertakings do not secure an
obligation for borrowed money or the deferred purchase
price of property or services);
(d) all indebtedness created or arising under any
conditional sale or other title retention agreement
with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender
under such agreement in the event of default are
limited to repossession or sale of such property);
(e) all obligations of such Person as lessee
under leases that have been or should be, in accordance
with GAAP, recorded as capital leases ("Capitalized
Leases"), to the extent properly classified as a
liability on the balance sheet of such Person;
(f) all obligations, contingent or otherwise, of
such Person under acceptance, letter of credit or other
similar facilities (other than letters of credit and
similar undertakings in connection with the
construction, development or operation of a business,
to the extent such undertakings do not secure an
obligation for borrowed money or the deferred purchase
price of property or services);
(g) all obligations of such Person to purchase,
redeem, retire, defease or otherwise acquire for value,
any capital stock of such Person or any warrants,
rights or options to acquire such capital stock, which
obligations shall be valued, in the case of Redeemable
Preferred Stock, at the greater of its voluntary or
involuntary liquidation preference plus accrued and
unpaid dividends and, in the case of other such
obligations, at the amount that, in light of all the
facts and circumstances existing at the time of
determination, can reasonably be expected to become
payable;
(h) all Indebtedness referred to in clauses (a)
through (g) above guaranteed directly or indirectly by
such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement, (i) to
pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such
Indebtedness, (ii) to purchase, sell or lease (as
lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the
debtor to make payment of such Indebtedness or to
assure the holder of such Indebtedness against loss,
(iii) to supply funds to or in any other manner invest
in the debtor (including any agreement to pay for
property or services irrespective of whether such
property is received or such services are rendered, but
excluding any obligation to make capital contributions
to a Principal Cellular Partnership in accordance with
the terms of the applicable Existing Partnership
Agreement other than an obligation to make such
contributions to assure a creditor of such Principal
Cellular Partnership against loss), or (iv) otherwise
to assure a creditor against loss; and
(i) all Indebtedness referred to in clauses (a)
through (g) above secured by (or for which the holder
of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract
rights) owned by such Person, even though such Person
has not assumed or become liable for the payment of
such Indebtedness.
"Indemnified Party" has the meaning specified in
Section 8.04(b).
"Insufficiency" means, with respect to any Plan, the
amount, if any, of its unfunded benefit liabilities within
the meaning of Section 4001(a)(18) of ERISA.
"Interest Expense" means, for any period, interest
expense for such period, including, without limitation,
imputed interest on Capitalized Leases, financing fees paid
to lenders in connection with Indebtedness permitted by
Section 5.02(b) (excluding, without limitation,
reimbursement of expenses, indemnification or other similar
costs) and fees paid to hedge lenders for Hedge Agreements.
"Interest Period" means, for each Adjusted CD Rate
Advance comprising part of the same Borrowing or each LIBO
Rate Advance comprising part of the same Borrowing, the
period commencing on the date of such Advance or the date of
the Conversion of any Advance into such an Advance, and
ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter,
each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last
day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period
shall be (a) in the case of a LIBO Rate Advance, one, two or
three months and, subject to clause (iv) below, six months,
and (b) in the case of an Adjusted CD Rate Advance, 30, 60,
90 or 180 days, as the Borrower, upon notice received by the
Administrative Agent not later than 11:00 A.M.
(New York City time) on the third Business Day (in the case
of a LIBO Rate Advance) or the second Business Day (in the
case of an Adjusted CD Rate Advance) prior to the first day
of such Interest Period, may select; provided, however,
that:
(i) the Borrower may not select any Interest
Period that ends after the Final Maturity Date;
(ii) the Borrower may, subject to Section
2.02(b)(i), make more than one Borrowing on any
Business Day, but Interest Periods commencing on the
same date for LIBO Rate Advances or Adjusted CD Rate
Advances comprising part of the same Borrowing shall be
of the same duration;
(iii) whenever the last day of any Interest
Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding
Business Day; provided, however, that, in the case of
the Interest Period for a LIBO Rate Advance, if such
extension would cause the last day of such Interest
Period to occur in the next following calendar month,
the last day of such Interest Period shall occur on the
next preceding Business Day;
(iv) with respect to LIBO Rate Advances, the
Borrower shall not be entitled to elect an Interest
Period having a duration of six months if, by the close
of business (New York City time) on the third Business
Day prior to the first day of such Interest Period, any
Appropriate Lender notifies the Administrative Agent
(which shall deliver a copy of such notice to the
Borrower) that such Lender would be unable to obtain
funding for, or that the LIBO Rate will not reflect the
cost to such Lender of funding or maintaining, the LIBO
Rate Advance to be made by such Lender for the period
selected by the Borrower and any such Advances made by
the Appropriate Lenders on the first day of such
Interest Period shall be Base Rate Advances; following
receipt of such notice, the Borrower's right to select
Interest Periods of LIBO Rate Advances having a
duration of six months shall be suspended until such
Lender subsequently notifies the Administrative Agent
that the circumstances causing such suspension no
longer exist; and
(v) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which
there is no numerically corresponding day in the
calendar month that succeeds such initial calendar
month by the number of months equal to the number of
months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding
calendar month.
"Investment" in any Person means any loan or advance to
such Person, any purchase or other acquisition of any
capital stock, warrants, rights, options, obligations or
other securities of such Person, any capital contribution to
such Person or any other investment in such Person,
including, without limitation, any arrangement pursuant to
which the investor incurs Indebtedness of the types referred
to in the definition of "Indebtedness" in respect of such
Person.
"LCH" means LCH Communications, Inc., a Delaware
corporation.
"LCH Assets" means all assets of LCH held on the date
of the initial borrowing under the 1990 Credit Agreement,
including, without limitation, WOTV and all capital stock of
LIN-Penn, but excluding all capital stock of LCN.
"LCH Preferred Stock" means all of LCH's Class A
Redeemable Preferred Stock.
"LCN" means LCN Holdings, Inc., a Delaware corporation.
"Lenders" means the banks and the other financial
institutions and investors listed on the signature pages
hereof and each Eligible Assignee that shall become a party
hereto pursuant to Section 8.07.
"LIBO Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "LIBO
Lending Office" set forth opposite its name in Schedule I
hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"LIBO Rate" means, for the Interest Period for each
LIBO Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained
by dividing (a) the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is
not such a multiple) of the rate per annum at which deposits
in Dollars are offered to the Reference Lenders by leading
banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such
Reference Lender's LIBO Rate Advance comprising part of such
Borrowing to be outstanding during such Interest Period and
for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the LIBO Rate Reserve
Percentage for such Interest Period. The LIBO Rate for the
Interest Period for each LIBO Rate Advance comprising part
of the same Borrowing shall be determined by the
Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from
the Reference Lenders two Business Days before the first day
of such Interest Period, subject, however, to the provisions
of Sections 2.02(b) and 2.09.
"LIBO Rate Advance" means an Advance that bears
interest as provided in Section 2.06(a).
"LIBO Rate Reserve Percentage" means, for the Interest
Period for each LIBO Rate Advance comprising part of the
same Borrowing, the reserve percentage applicable two
Business Days before the first day of such Interest Period
under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference
to which the interest rate on LIBO Rate Advances is
determined) having a term equal to such Interest Period.
"Lien" means any lien, security interest or other
charge or encumbrance of any kind, or any other type of
preferential arrangement, including, without limitation, the
lien or retained security title of a conditional vendor and
any easement, right of way or other encumbrance on title to
real property, but not including any inchoate right of set-
off as such.
"LIN" means LIN Broadcasting Corporation, a Delaware
corporation.
"LIN Cellular Holdings" means LIN Cellular Holdings,
Inc., a New York corporation.
"LIN Parties" means the Borrower, LIN Cellular Holdings
and LCN.
"LIN Penn" means LIN Cellular Communications
Corporation, a Pennsylvania corporation.
"LIN Satellite" means LIN Satellite Communications
Corporation, a Delaware corporation.
"LIN Share" means each issued and outstanding share of
LIN's common stock.
"Los Angeles Partnership" means Los Angeles Cellular
Telephone Company.
"Los Angeles Partnership Agreement" means the
Partnership Agreement dated as of June 22, 1983 among Los
Angeles Cellular Corporation and LIN Cellular Communications
Corporation, as amended through August 1, 1990.
"Majority Entity" means, with respect to AT&T, any
Person of which AT&T legally and beneficially owns more than
50% of the combined voting power of all of such Person's
Voting Stock.
"Managing Agents" has the meaning specified in the
recital of parties to this Agreement.
"Material Agreement" means each agreement that is
material to the business, condition (financial or
otherwise), operations, properties or prospects of the
Borrower, any of the Borrower's Subsidiaries or any of the
Principal Cellular Partnerships (other than agreements that
relate to Indebtedness permitted by Section 5.02(b)).
"Material Entity" means (i) any entity that
individually generated at least 20% of Consolidated
Operating Cash Flow for any period of four consecutive
fiscal quarters or (ii) any group of entities, none of the
members of which individually generated 20% or more of
Consolidated Operating Cash Flow for any such period, but
that in the aggregate generated at least 20% of Consolidated
Operating Cash Flow for any period of four consecutive
fiscal quarters.
"Material Event" means, with respect to the Private
Market Value Guarantee, any of the following: (i) the
determination of a private market price for LIN Shares
pursuant to Section 2(C) thereof; (ii) the execution of an
agreement with LIN pursuant to which McCaw will proceed with
an Acquisition (as defined in Section 2(D) thereof); (iii)
the approval by the public stockholders of LIN of an
Acquisition by McCaw as required by Section 2(E) thereof;
and (iv) the determination by McCaw to proceed with a sale
of LIN pursuant to Section 2(F) thereof.
"McCaw" means McCaw Cellular Communications, Inc., a
Delaware corporation.
"McCaw Family" has the meaning specified in the
Shareholders Agreement as in effect on February 26, 1990.
"Merger" means the merger of Ridge with and into McCaw,
with McCaw as the surviving corporation in accordance with
the terms set forth in the AT&T Merger Agreement.
"Minority Entity" means any Person that owns or
operates a Cellular Business, other than (a) one of the
Borrower's Subsidiaries or a Principal Cellular Partnership,
in which any of the Borrower's Subsidiaries holds an equity
or other ownership interest and (b) LCH Holdings, Inc., a
Delaware corporation.
"MMM Holdings" means MMM Holdings, Inc., a Delaware
corporation.
"MSA" means a "Metropolitan Statistical Area", as such
term is defined and modified by the FCC for purposes of
Cellular System licensing.
"Multiemployer Plan" means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which the
Borrower or any of its ERISA Affiliates is making or
accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an
obligation to make contributions, such plan being maintained
pursuant to one or more collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of the Borrower or any of its ERISA
Affiliates and at least one Person other than the Borrower
and its ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any of its ERISA Affiliates
could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"1990 Collateral Agent" means the "Collateral Agent",
as such term is defined in the 1990 Credit Agreement.
"1990 Commitments" means the "Commitments", as such
term is defined in the 1990 Credit Agreement.
"1990 Credit Agreement" means the $1,750,000,000 Credit
Agreement dated as of August 1, 1990 among the Borrower,
Morgan Trust Company of New York, as administrative agent
and as arranger, Citibank, N.A., as arranger and collateral
agent, Toronto-Dominion, as arranger, and the financial
institutions named therein as lenders, as amended by
Amendment No. 1 dated as of June 15, 1993 and by the
Amendment, and as such agreement may be further amended to
the extent that any such amendment is not adverse to the
rights and remedies of the Agents or any Lender hereunder or
the ability of the Borrower to perform its obligations under
this Agreement.
"1990 Lenders" means the "Lenders", as such term is
defined in the 1990 Credit Agreement.
"1990 Loan Documents" means the 1990 Credit Agreement
and the "Security Agreements" and the "Guarantees", in each
case as such term is defined in the 1990 Credit Agreement.
"1990 Required Lenders" means the "Required Lenders",
as such term is defined in the 1990 Credit Agreement.
"Net Cash Proceeds" means, for any sale, lease,
transfer or disposition of any asset by any Person or any
extraordinary transaction by such Person, the aggregate
amount of cash received by or on behalf of such Person for
such asset or from such transaction after deducting
therefrom: (a) the amount of such proceeds required to be
applied to repay Indebtedness incurred by it or any
Subsidiary of such Person or any Principal Cellular
Partnership or Indebtedness secured by a Lien on any asset
so disposed; (b) brokerage commissions, legal fees, finder's
fees and other similar fees and commissions; (c) taxes
payable on or before the first anniversary of the
consummation of such transaction in connection with or as a
result of such transaction; and (d) other out-of-pocket
costs incurred in connection therewith, in the case of each
of clauses (a), (b), (c) and (d) above to the extent, but
only to the extent, that the amounts so deducted are, at or
about the time of receipt of such cash, actually paid to a
Person that is not an Affiliate of such Person (or, if paid
to such an Affiliate, to the extent the terms of such
payment are no more favorable to such Affiliate than such
terms would be in an arm's-length transaction) and are
properly attributable to such transaction or to the asset
that is the subject thereof.
"Net Income" means, for any Person and for any period,
the net income (or net loss) of such Person for such period;
provided that such amount shall be adjusted to exclude (to
the extent otherwise included therein):
(a) any restoration to income of any contingency
reserve, except to the extent that provision for such
reserve was made out of income accrued during such
period and except for normal accruals and reversals in
the ordinary course of business;
(b) any write-up or write-down of any asset;
(c) any net gain from the collection of the
proceeds of life insurance policies;
(d) any gain or loss arising from the acquisition
of any securities or Indebtedness of such Person and
any net loss arising from the exercise of any warrant
of such Person;
(e) any deferred credit representing the excess
of equity in any Person at the date of acquisition over
the cost of the Investment in such Person;
(f) any aggregate net gain (or loss) during such
period arising from the sale, exchange or other
disposition of capital assets (such term to include all
fixed assets, whether tangible or intangible, all
inventory sold in conjunction with the disposition of
fixed assets, and all securities) other than (i) any
sale, exchange or other disposition in the ordinary
course of business and (ii) any sale, exchange or
disposition of equipment utilized in the business of
such Person, the ratable share of Net Income of which
is included herein;
(g) all extraordinary items; and
(h) any net income that is attributable to an
entity that is neither a Subsidiary of such Person nor
a Principal Cellular Partnership, other than amounts
actually received by such Person as a distribution or a
dividend.
"New York Partnership" means Cellular Telephone
Company.
"New York Partnership Agreement" means the Partnership
Agreement dated as of March 18, 1983 among LIN Cellular
Communications Corporation, Metromedia, Inc. and Cellular
Systems, Inc., as amended through August 1, 1990.
"Notice of Borrowing" has the meaning specified in
Section 2.02(a).
"NYPSC" means the New York Public Service Commission or
any successor agency or entity performing substantially the
same functions.
"OECD" means the Organization for Economic Cooperation
and Development.
"Operating Cash Flow" means, for any Person for any
period, the sum of:
(a) the Net Income of such Person for such
period; plus
(b) the sum of the following items (to the extent
deducted in the computation of such Net Income):
(i) depreciation expense;
(ii) amortization expense;
(iii) Interest Expense;
(iv) charges for reserves for deferred taxes
established with respect to such period (less
reversals during such period of reserves for
deferred taxes); and
(v) other non-cash items.
"Other Taxes" has the meaning specified in Section
2.12(b).
"Parent Restrictive Agreement" has the meaning
specified in Section 6.01(q).
"PBGC" means the Pension Benefit Guaranty Corporation,
or any successor agency or entity performing substantially
the same functions.
"Permitted Asset Swap" means any disposition of
Cellular Assets (other than any interest in the New York
Partnership or the Los Angeles Partnership) by the Borrower
or any of the Borrower's Subsidiaries meeting the following
criteria:
(a) such disposition shall be in exchange for
Approved Cellular Assets that have an aggregate fair
market value equivalent to the Cellular Assets disposed
of, such determination to be made in the good faith
judgment of a Financial Officer of the Borrower and so
stated in a certificate of such Financial Officer of
the Borrower delivered to the Administrative Agent upon
consummation of such disposition and acquisition of
Cellular Assets; or
(b) such disposition shall be for fair value and
for cash and shall be followed by an acquisition of
Approved Cellular Assets meeting the following
criteria: (i) within 30 days after the consummation of
such disposition, a Financial Officer of the Borrower
shall have delivered a certificate to the
Administrative Agent stating that the Borrower or one
of the Borrower's Subsidiaries shall have entered into
one or more binding agreements to acquire Approved
Cellular Assets having an aggregate fair market value
equivalent to the Cellular Assets disposed of (such
determination to be made in the good faith judgment of
such Financial Officer of the Borrower and so stated in
such certificate) and (ii) within 270 days after the
date on which such binding agreement or agreements have
been executed and delivered by the parties thereto, a
Financial Officer of the Borrower shall have delivered
a certificate to the Administrative Agent stating that
the Borrower or one of the Borrower's Subsidiaries
shall have consummated such acquisition.
"Permitted Liens" means such of the following as to
which no enforcement, collection, execution, levy or
foreclosure proceeding shall have been commenced (unless
otherwise provided in this definition):
(a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid
by the Borrower, any of the Borrower's Subsidiaries or
any Principal Cellular Partnership under Section 5.01(b);
(b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course
of business securing obligations that are not overdue
for a period of more than 60 days;
(c) Liens (other than any Lien imposed by ERISA)
or deposits made in the ordinary course of business to
secure obligations under workers' compensation,
unemployment insurance and other types of social
security, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance
and return-of-money bonds and other similar obligations
(to the extent such undertakings do not secure
obligations for the payment of borrowed money or the
deferred purchase price of property or services);
(d) easements, rights of way and other
encumbrances on title to real property that do not
materially adversely affect the use of such property
for its present purposes; and
(e) judgment Liens that in the aggregate do not
exceed $5,000,000, each of which has not been in
existence for a period of more than 60 days or the
execution of each of which has been stayed pending
appeal.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity,
or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple
Employer Plan.
"Pops" means, for any MSA or RSA, the number of
residents of such MSA or RSA (as the case may be) as
reflected in the Donnelly Marketing Service population
estimates for 1989.
"Preferred Stock" means, for any corporation, capital
stock issued by such corporation that is entitled to a
preference or a priority over any other capital stock issued
by such corporation upon any distribution of such
corporation's assets, whether by dividend or upon
liquidation.
"Principal Cellular Partnership" means each of the
Dallas Partnership, the Houston Partnership, the Los Angeles
Partnership and the New York Partnership.
"Private Market Value Guarantee" means the Private
Market Value Guarantee dated December 11, 1989 between McCaw
and LIN.
"PUC" means any state regulatory agency or body that
exercises jurisdiction over the ownership, construction or
operation of Cellular Systems.
"Redeemable" means, with respect to any capital stock,
Indebtedness or other right or obligation, any such right or
obligation that (a) the issuer has undertaken to redeem at a
fixed or determinable date or dates, whether by operation of
a sinking fund or otherwise, or upon the occurrence of a
condition not solely within the control of the issuer or
(b) is redeemable at the option of the holder.
"Reference Lenders" means Toronto-Dominion and
Scotiabank.
"Register" has the meaning specified in Section
8.07(c).
"Regulatory Authority" means the FCC, the NYPSC, each
other PUC and any other comparable state or local authority
that has jurisdiction over the control, ownership,
licensing, construction or operation of all or any part of
any Cellular System or the provision of service or the
charges for such service in any Cellular System.
"Required Appropriate Lenders" means, for either
Facility, at any time, Lenders owed more than 50% of the
then aggregate unpaid principal amount of the Advances owing
to Lenders under such Facility or, if no such principal
amount is outstanding, Lenders having more than 50% of the
Commitments for such Facility.
"Required Lenders" means, at any time, Lenders owed or
holding in the aggregate more than 50% of the sum of (a) the
then aggregate unpaid principal amount of the Advances plus
(b) the then aggregate Unused Revolving Credit Commitments.
"Restrictive Agreement" has the meaning specified in
Section 6.01(q).
"Revolving Credit Advance" has the meaning specified in
Section 2.01(b).
"Revolving Credit Borrowing" means a borrowing
consisting of simultaneous Revolving Credit Advances of the
same Type made by the Revolving Credit Lenders.
"Revolving Credit Commitment" means for each Lender the
amount set forth opposite such Lender's name in Schedule I
hereto under the heading "Revolving Credit Commitment" or,
if such Lender has entered into one or more Assignments and
Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section
8.07(c), as the same may be reduced pursuant to Section
2.04.
"Revolving Credit Facility" means the aggregate amount
of the Revolving Credit Lenders' Revolving Credit
Commitments.
"Revolving Credit Lender" means any Lender that has a
Revolving Credit Commitment.
"Ridge" means Ridge Merger Corporation, a Delaware
corporation wholly owned by AT&T.
"RSA" means a "Rural Service Area", as such term is
defined and modified by the FCC for purposes of Cellular
System licensing.
"Scotiabank" has the meaning specified in the recital
of parties to this Agreement.
"Senior Debt" means Consolidated Debt, other than
Subordinated Debt.
"Severable Equipment" means any addition, modification
or improvement to the initial configuration of any Cellular
System that may be removed therefrom without diminishing or
impairing the function, utility, performance or operating
condition of the initial configuration as in effect
immediately prior to the making or installation of such
addition, modification or improvement.
"Shareholders Agreement" means the Shareholders
Agreement dated as of May 31, 1989 among McCaw, the Trustees
under the will of the late Eben D. Jordan, the Trustees of
the Taylor Voting Trust, the holders of certain units of the
Taylor Voting Trust, Craig O. McCaw, John E. McCaw, Jr.,
Bruce R. McCaw, Keith W. McCaw and the other parties named
therein, as amended from time to time.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of the Borrower or any of its ERISA
Affiliates and no Person other than the Borrower and its
ERISA Affiliates or (b) was so maintained and in respect of
which the Borrower or any of its ERISA Affiliates could have
liability under Section 4069 of ERISA in the event such plan
has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any
Person on a particular date, that on such date (a) the fair
value of the property of such Person is greater than the
total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair
salable value of the assets of such Person is not less than
the amount that will be required to pay the probable
liability of such Person on its debts as they become
absolute and matured, (c) such Person does not intend to,
and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such
debts and liabilities mature and (d) such Person is not
engaged in business or a transaction, and is not about to
engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital.
The amount of contingent liabilities at any time shall be
computed as the amount that, in light of all the facts and
circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or
matured liability.
"Subordinated Debt" means all Indebtedness of the
Borrower that is subordinated to the obligations of the
Borrower under or in respect of the 1990 Loan Documents and
this Agreement on terms of subordination no less favorable
to the Lenders than the terms set forth on Schedule III
hereto, or as the Required Lenders may otherwise agree, and
that otherwise contains terms and conditions satisfactory to
the Required Lenders (including, without limitation,
acceptable amortization schedules).
"Subscriber Equipment" means any cellular mobile
telephones, cellular portable telephones, speakers, mounting
hardware, subscriber test equipment and similar subscriber
equipment.
"Subsidiary" of any Person means (a) any corporation of
which more than 50% of the issued and outstanding capital
stock having ordinary voting power to elect a majority of
the Board of Directors of such corporation (irrespective of
whether at the time capital stock of any other class or
classes of such corporation shall or might have voting power
upon the occurrence of any contingency) is at the time
directly or indirectly owned or controlled by such Person,
by such Person and one or more of its other Subsidiaries or
by one or more of such Person's other Subsidiaries and
(b) any partnership, joint venture, trust, estate or other
association of which more than 50% of the equity interests
having the power to vote to direct or control the management
of such partnership, joint venture, trust, estate or other
association is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of
the other Subsidiaries or by one or more of such Person's
other Subsidiaries.
"Supermajority Lenders" means, at any time, Lenders
owed or holding in the aggregate at least 66-2/3% of the sum
of (a) the then aggregate unpaid principal amount of the
Advances plus (b) the then aggregate Unused Revolving Credit
Commitments.
"Tax Sharing Agreement" means the Tax Sharing Agreement
dated August 10, 1990 between LIN and the Borrower.
"Taxes" has the meaning specified in Section 2.12(a).
"Term Advance" has the meaning specified in Section
2.01(a).
"Term Borrowing" means a borrowing consisting of
simultaneous Term Advances of the same Type made by the Term
Lenders.
"Term Commitment" means for each Lender the amount set
forth opposite such Lender's name in Schedule I hereto under
the heading "Term Commitment" or, if such Lender has entered
into one or more Assignments and Acceptances, set forth for
such Lender in the Register maintained by the Administrative
Agent pursuant to Section 8.07(c), as the same may be
reduced pursuant to Section 2.04.
"Term Facility" means the aggregate amount of the Term
Lenders' Term Commitments.
"Term Lender" means any Lender that has a Term
Commitment.
"TD (Texas)" has the meaning specified in the recital
of parties to this Agreement.
"Toronto-Dominion" has the meaning specified in the
recital of parties to this Agreement.
"Type" refers to the distinction between Advances
bearing interest at the Base Rate, Advances bearing interest
at the LIBO Rate and Advances bearing interest at the
Adjusted CD Rate.
"Unused Revolving Credit Commitments" means, with
respect to any Revolving Credit Lender at any time, such
Lender's Revolving Credit Commitment at such time minus the
aggregate principal amount of all Revolving Credit Advances
made by such Lender and outstanding at such time.
"United States" means the United States of America.
"Voting Stock" means capital stock issued by a
corporation, or equivalent interests in any other Person,
the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such
Person, even though the right to so vote has been suspended
by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in
Section 3(1) of ERISA, maintained for employees of the
Borrower or any of its ERISA Affiliates.
"Withdrawal Liability" has the meaning given such term
under Part 1 of Subtitle E of Part IV of ERISA.
"WOTV" means television station WOTV broadcasting from
Grand Rapids, Michigan and the assets related thereto.
"Year End Period" means the period from December 15th
of any year through January 15th of the following year.
SECTION 1.02. Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including" and each of the words "to" and "until" means "to but
excluding".
SECTION 1.03. Accounting Terms and Computations. All
accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting
principles consistent with those applied in the preparation of
the financial statements referred to in Section 4.01(f) ("GAAP").
Unless otherwise provided herein, all computations and
calculations to be made under this Agreement, including, without
limitation, computations under Section 5.03, shall be made in
accordance with GAAP.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. (a) The Term Advances.
Each Term Lender severally agrees, on the terms and conditions
hereinafter set forth, to make a single advance (a "Term
Advance") to the Borrower on any Business Day during the period
from the date hereof until June 30, 1994 in an amount not to
exceed such Lender's Term Commitment on such Business Day.
Amounts borrowed under this Section 2.01(a) and repaid or prepaid
may not be re-borrowed.
(b) The Revolving Credit Advances. Each Revolving
Credit Lender severally agrees, on the terms and conditions
hereinafter set forth, to make advances (each, a "Revolving
Credit Advance") to the Borrower from time to time on any
Business Day during the period from the date hereof until the
Final Maturity Date in an amount for each such Advance not to
exceed such Lender's Unused Revolving Credit Commitment on such
Business Day. Each Revolving Credit Borrowing shall be in an
aggregate amount of not less than $50,000,000 or an integral
multiple of $50,000,000 in excess thereof and shall consist of
Revolving Credit Advances of the same Type made on the same day
by the Revolving Credit Lenders ratably according to their
Revolving Credit Commitments. Within the limits of each
Revolving Credit Lender's Unused Revolving Credit Commitment in
effect from time to time, the Borrower may borrow under this
Section 2.01(b), prepay pursuant to Section 2.07(a) and reborrow
under this Section 2.01(b).
SECTION 2.02. Making the Advances. (a) Each
Borrowing shall be made on notice given not later than 11:00 A.M.
(New York City time) on the third Business Day (in the case of a
LIBO Rate Advance), on the second Business Day (in the case of an
Adjusted CD Rate Advance), or on the Business Day (in the case of
a Base Rate Advance) prior to the date of the proposed Borrowing
by the Borrower to the Administrative Agent, which shall give to
each Appropriate Lender prompt notice thereof by telecopier.
Each such notice of a Borrowing (a "Notice of Borrowing") shall
be by telephonic notice, confirmed immediately in writing by
telecopier, in substantially the form of Exhibit C hereto,
specifying therein the requested (i) date of such Borrowing, (ii)
Facility under which such Borrowing is being made, (iii) Type of
Advances comprising such Borrowing, (iv) aggregate amount of such
Borrowing, (v) purpose or purposes for which the proceeds of such
Borrowing will be used and (vi) Interest Period for each such
Advance. In the case of a proposed Borrowing comprised of LIBO
Rate Advances or Adjusted CD Rate Advances, the Administrative
Agent shall promptly notify each Appropriate Lender of the
applicable interest rate under Section 2.06(a) or (b). Each
Appropriate Lender shall, before 1:00 P.M. (New York City time)
on the date of such Borrowing, make available for the account of
its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's
ratable portion of such Borrowing. After the Administrative
Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the
Borrower by crediting the Borrower's Account.
(b) Notwithstanding the foregoing:
(i) the Borrower shall not be entitled to make a
Borrowing if, after giving effect to such Borrowing, there
would be outstanding more than ten different Borrowings that
bear interest at the LIBO Rate or the Adjusted CD Rate;
(ii) if any Appropriate Lender shall, at least one
Business Day before the date of any requested Borrowing to
bear interest at the LIBO Rate, or at any other time from
time to time, notify the Administrative Agent that the
introduction of or any change in or in the interpretation of
any law or regulation makes it unlawful, or that any central
bank or other governmental authority asserts that it is
unlawful, for such Lender or its LIBO Lending Office to
perform its obligations hereunder to make LIBO Rate Advances
or to fund or maintain LIBO Rate Advances hereunder, the
right of the Borrower to select LIBO Rate Advances for such
Borrowing or any subsequent Borrowing or to Convert any
Advances into LIBO Rate Advances shall be suspended until
such Lender shall notify the Administrative Agent that the
circumstances that caused such suspension no longer exist,
and each Advance comprising such Borrowing shall be or
Convert into (on the last day of the then existing Interest
Period therefor), as the case may be, a Base Rate Advance;
(iii) if neither Reference Lender furnishes timely
information to the Administrative Agent for determining the
Adjusted CD Rate for any Adjusted CD Rate Advances, or the
LIBO Rate for any LIBO Rate Advances, comprising any
requested Borrowing:
(A) the Administrative Agent shall promptly
notify the Borrower and the Lenders that the interest
rate cannot be determined for such Adjusted CD Rate
Advances or LIBO Rate Advances (as the case may be);
(B) the right of the Borrower to select Adjusted
CD Rate Advances or LIBO Rate Advances (as the case may
be) for such Borrowing or any subsequent Borrowing or
to Convert any Advances into Adjusted CD Rate Advances
or LIBO Rate Advances (as the case may be) shall be
automatically suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the
circumstances that caused such suspension no longer
exist; and
(C) each Advance comprising such Borrowing shall
be or Convert into (on the last day of the then
existing Interest Period therefor), as the case may be,
a Base Rate Advance; and
(iv) if the Required Appropriate Lenders shall, at
least one Business Day before the date of any requested
Borrowing to bear interest at the LIBO Rate, or at any other
time from time to time, notify the Administrative Agent that
the LIBO Rate for LIBO Rate Advances for any Interest Period
for such Advances will not adequately reflect the cost to
such Lenders of making, funding or maintaining their
respective LIBO Rate Advances for such Interest Period, the
right of the Borrower to select LIBO Rate Advances for such
Borrowing or any subsequent Borrowing or to Convert any
Advances into LIBO Rate Advances shall be suspended until
the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances that caused such suspension
no longer exist, and each Advance comprising such Borrowing
shall be or Convert into (on the last day of the then
existing Interest Period therefor), as the case may be, a
Base Rate Advance.
(c) Each Notice of Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Borrowing that the
related Notice of Borrowing specifies is to be comprised of
Adjusted CD Rate Advances or LIBO Rate Advances, the Borrower
shall indemnify each Appropriate Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of
Borrowing for such Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred
by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the Advance to be made by
such Lender as part of such Borrowing when such Advance, as a
result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have
received notice from an Appropriate Lender prior to the date of
any Borrowing under a Facility under which such Lender has a
Commitment that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent on
the date of such Borrowing in accordance with subsection (a) of
this Section 2.02, and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date
a corresponding amount. If and to the extent that such Lender
shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand
such corresponding amount together with interest thereon, for
each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the
interest rate applicable at such time under Section 2.06 to
Advances comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall repay to
the Administrative Agent such corresponding amount, such amount
so repaid shall constitute such Lender's Advance as part of such
Borrowing for purposes of this Agreement and the Borrower shall
no longer be obligated to repay such amount to the Administrative
Agent.
(e) The failure of any Lender to make the Advance to
be made by it as part of any Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its
Advance on the date of such Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any
Borrowing.
SECTION 2.03. Fees. (a) Facility Fees. The
Borrower agrees to pay to the Administrative Agent for the
account of each Lender a facility fee on the amount of such
Lender's Commitment payable on the date of execution of this
Agreement by the parties hereto, at a rate equal to 1-1/2%.
(b) Commitment Fees. The Borrower agrees to pay to
the Administrative Agent for the account of the Lenders a
commitment fee on the average daily unused portion of each
Lender's Commitments from the date of the Borrower's acceptance
of each such Lender's Commitment in the case of each Lender that
is a signatory hereto, and from the
effective date specified in the Assignment and Acceptance
pursuant to which it became a Lender in the case of each other
Lender, until the Final Maturity Date at the rate of of 1% per
annum, payable in arrears on the date of execution of this
Agreement by the parties hereto, and thereafter quarterly in
arrears on the last Business Day of each March, June, September
and December commencing on June 30, 1994 and on the Final
Maturity Date.
(c) Agents' Fees. The Borrower shall pay to the
Managing Agents and the Administrative Agent for their own
accounts such fees as may from time to time be agreed between the
Borrower and the Managing Agents and the Administrative Agent,
respectively.
SECTION 2.04. Reduction of the Commitments. (a)
Optional. The Borrower shall have the right, upon at least three
Business Days' notice to the Administrative Agent, to terminate
in whole or reduce ratably in part the unused portions of the
Term Commitments and the Unused Revolving Credit Commitments;
provided, however, that each partial reduction of a Facility (i)
shall be in the minimum aggregate amount of $20,000,000 or an
integral multiple of $10,000,000 in excess thereof and (ii) shall
be made ratably among the Appropriate Lenders in accordance with
their Commitments with respect to such Facility.
(b) Mandatory. Upon repayment in full of all amounts
outstanding under the 1990 Credit Agreement and the termination
of the 1990 Commitments in accordance with the terms of the 1990
Credit Agreement, each of the Term Facility and the Revolving
Credit Facility shall thereafter be automatically and permanently
reduced upon (x) any sale, lease, transfer or other disposition
of assets of the Borrower or any of the Borrower's Subsidiaries
(other than dispositions of assets (other than Franchise
Interests) in the ordinary course of business and Permitted Asset
Swaps) and (y) the failure of any disposition of assets to
continue to constitute a Permitted Asset Swap, in each case by an
amount equal to the Net Cash Proceeds of the assets so sold,
leased, transferred or otherwise disposed of, such reduction to
be allocated to the Facilities first, to prepay ratably the
aggregate outstanding principal amount of the Term Advances, and
second, to permanently reduce, ratably, the Revolving Credit
Facility.
SECTION 2.05. Repayment. The Borrower shall repay to
the Administrative Agent for the account of the Lenders the
outstanding principal amount of each Advance on the Final
Maturity Date.
SECTION 2.06. Interest. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to
each Lender from the date of such Advance until such principal
amount shall be paid in full, at the following rates per annum:
(a) LIBO Rate Advances. If such Advance is a LIBO
Rate Advance, a rate per annum equal at all times during the
Interest Period for such Advance to the sum of (i) the LIBO
Rate for such Interest Period for such Advance plus (ii) the
Applicable Margin in effect from time to time on the first
day of such Interest Period,
payable in arrears on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months,
on each day that occurs during such Interest Period every three
months from the first day of such Interest Period (or, if there
is no numerically corresponding day in such third month, the last
day of such month).
(b) Adjusted CD Rate Advances. If such Advance is an
Adjusted CD Rate Advance, a rate per annum equal at all
times during the Interest Period for such Advance to the sum
of (i) the Adjusted CD Rate for such Interest Period for
such Advance plus (ii) the Applicable Margin in effect from
time to time during such Interest Period, payable in arrears
on the last day of such Interest Period and, if such
Interest Period has a duration of more than 90 days, on each
day that occurs during such Interest Period every 90 days
from the first day of such Interest Period.
(c) Base Rate Advances. If such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum
of (i) the Base Rate in effect from time to time plus (ii)
the Applicable Margin in effect from time to time, payable
in arrears quarterly on the last Business Day of March,
June, September and December in each fiscal year of the
Borrower and on the date such Base Rate Advance shall be
Converted or paid in full.
(d) Default Interest. Upon the occurrence and during
the continuance of a Default, the Borrower shall pay
interest on the unpaid principal amount of each Advance
owing to each Lender, and on the unpaid amount of all
interest, fees and other amounts payable hereunder that is
not paid when due, payable in arrears on the dates referred
to in subsection (a), (b) or (c) above and on demand, at a
rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on such Advance pursuant
to subsection (a), (b) or (c) above or, in the case of such
other amounts, above the rate per annum required to be paid
on Base Rate Advances pursuant to subsection (c) above.
SECTION 2.07. Prepayments. (a) Optional. After
making any mandatory reduction of the 1990 Commitments or any
mandatory prepayments under the 1990 Credit Agreement pursuant to
Sections 2.04(b) or 2.07(b) of the 1990 Credit Agreement,
respectively, the Borrower may, upon at least one Business Day's
notice with respect to Base Rate Advances and five Business Days'
notice with respect to LIBO Rate Advances and Adjusted CD Rate
Advances to the Administrative Agent stating the proposed date
and aggregate principal amount of the prepayment, and, if such
notice is given, the Borrower shall, prepay the outstanding
principal amount of the Advances comprising part of the same
Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount
prepaid; provided, however, that (i) each partial prepayment
shall be in an aggregate principal amount not less than
$20,000,000 or an integral multiple of $10,000,000 in excess
thereof and (ii) in the event any prepayment of a LIBO Rate
Advance or an Adjusted CD Rate Advance shall be made on any day
other than on the last day of the Interest Period therefor, the
Borrower shall reimburse the Lenders in respect thereof pursuant
to Section 8.04(c).
(b) Mandatory Prepayments. (i) Upon repayment in
full of all amounts outstanding under the 1990 Credit Agreement
and the termination of the 1990 Commitments in accordance with
the terms of the 1990 Credit Agreement, the Borrower shall
thereafter, upon any sale, lease, transfer, or other disposition
of assets (other than dispositions of assets (other than
Franchise Interests) in the ordinary course of business and
Permitted Asset Swaps) prepay an aggregate principal amount of
the Advances comprising part of the same Borrowings equal to such
Net Cash Proceeds. Each such prepayment shall be applied first,
ratably to the Term Facility and second, ratably to the Revolving
Credit Facility.
(ii) All prepayments under this subsection (b) shall be
made together with accrued interest to the date of such
prepayment on the principal amount prepaid.
SECTION 2.08. Conversion of Advances. (a) Optional.
The Borrower may on any Business Day, upon notice given to the
Administrative Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Section 2.10, Convert
all or any portion of the Advances of one Type comprising the
same Borrowing into Advances of another Type; provided, however,
that (i) any Conversion of any Adjusted CD Rate Advances or LIBO
Rate Advances into Base Rate Advances shall be made only on the
last day of an Interest Period for such Adjusted CD Rate Advances
or LIBO Rate Advances, (ii) any Conversion of any Adjusted CD
Rate Advances or LIBO Rate Advances into Base Rate Advances shall
be in an amount not less than $10,000,000 or an integral multiple
of $1,000,000 in excess thereof and (iii) no Conversion of any
Advances shall result in more separate Borrowings than permitted
under Section 2.02(b). Each such notice of Conversion shall,
within the restrictions specified above, specify (x) the date of
such Conversion, (y) the Advances to be Converted and (z) if such
Conversion is into Adjusted CD Rate Advances or LIBO Rate
Advances, the duration of the initial Interest Period for such
Advances. Each notice of Conversion shall be irrevocable and
binding on the Borrower.
(b) Mandatory. If the Borrower shall fail to select
the duration of any Interest Period for any Adjusted CD Rate
Advances or any LIBO Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in
Section 1.01, the Administrative Agent will forthwith so notify
the Borrower and the Appropriate Lenders, whereupon each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance.
SECTION 2.09. Interest Rate Determination. (a) Each
Reference Lender agrees to furnish to the Administrative Agent
timely information for the purpose of determining each Adjusted
CD Rate or LIBO Rate, as applicable. Subject to Section
2.02(b)(iii), if any one of the Reference Lenders shall not
furnish such timely information to the Administrative Agent for
the purpose of determining any such interest rate, the
Administrative Agent shall determine such interest rate on the
basis of timely information furnished by the remaining Reference
Lender.
(b) The Administrative Agent shall give prompt notice
to the Borrower and the Lenders of the applicable interest rate
determined by the Administrative Agent for purposes of Section
2.06(a), (b) or (c) and the applicable rate, if any, furnished by
each Reference Lender for the purpose of determining the
applicable interest rate under Section 2.06(a) or (b).
SECTION 2.10. Increased Costs, Etc. (a) If, due to
either (i) the introduction of or any change (other than any
change by way of imposition or increase of reserve requirements
included in the Adjusted CD Rate Reserve Percentage or the LIBO
Rate Reserve Percentage) in or in the interpretation of any law
or regulation or (ii) the compliance with any guideline or
request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any
increase in the cost to any Lender of agreeing to make or making,
funding or maintaining Adjusted CD Rate Advances or LIBO Rate
Advances (as the case may be), then the Borrower shall from time
to time, upon demand by such Lender (with a copy of such demand
to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost. A certificate as
to the amount of such increased cost, submitted to the Borrower
by such Lender, shall be conclusive and binding for all purposes,
absent manifest error.
(b) If any Lender determines that compliance with any
law or regulation or any guideline or request from any central
bank or other governmental authority (whether or not having the
force of law) affects or would affect the amount of capital
required or expected to be maintained by such Lender or any
corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of
this type, then, upon demand by such Lender (with a copy of such
demand to the Administrative Agent), the Borrower shall pay to
the Administrative Agent for the account of such Lender, from
time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender in the light of such
circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the
existence of such Lender's commitment to lend hereunder. A
certificate as to such amounts submitted to the Borrower by such
Lender shall be conclusive and binding for all purposes, absent
manifest error.
(c) Upon the occurrence and during the continuance of
any Default, (i) each Adjusted CD Rate Advance and LIBO Rate
Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lender to make, or to Convert Advances
into, Adjusted CD Rate Advances and LIBO Rate Advances shall be
suspended.
SECTION 2.11. Payments and Computations. (a) The
Borrower shall make each payment hereunder not later than 11:00
A.M. (New York City time) on the day when due in Dollars to the
Administrative Agent at the Administrative Agent's Account in
same day funds. The Administrative Agent will promptly
thereafter cause like funds to be distributed (i) if such payment
by the Borrower is in respect of principal or interest,
commitment fees or any other obligation then payable hereunder to
more than one Lender, to such Lenders for the account of their
Applicable Lending Offices ratably in accordance with the amounts
of such respective obligations then payable to such Lenders and
(ii) if such payment by the Borrower is in respect of any
obligation then payable hereunder to one Lender, to such Lender
for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement. Upon
its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to
Section 8.07(c), from and after the effective date of such
Assignment and Acceptance, the Administrative Agent shall make
all payments hereunder in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) If the Administrative Agent receives funds for
application to the Advances under circumstances for which this
Agreement does not specify the Advances or the Facility to which,
or the manner in which, such funds are to be applied, the
Administrative Agent (i) shall, prior to any distribution of such
funds, notify the Borrower that it has received such funds and
(ii) may, on the Business Day following delivery of such notice
to the Borrower, but shall not be obligated to, elect to
distribute such funds to each Lender ratably in accordance with
such Lender's proportionate share of all outstanding Advances, in
prepayment or repayment of such of the outstanding Advances or
other obligations owed to such Lender, and for application to
such principal installments, as the Administrative Agent shall
direct.
(c) The Borrower hereby authorizes each Lender, if and
to the extent payment owed to such Lender is not made when due
hereunder, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(d) All computations of interest based on the Base
Rate, the Adjusted CD Rate, the LIBO Rate or the Federal Funds
Rate and of commitment fees shall be made by the Administrative
Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest or fees
are payable. Each determination by the Administrative Agent of
an interest rate or fee hereunder shall be conclusive and binding
for all purposes, absent manifest error.
(e) Whenever any payment hereunder shall be stated to
be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of payment
of interest or commitment fee, as the case may be; provided that
if such extension would cause payment of interest on or principal
of LIBO Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business
Day.
(f) Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any
payment is due to any Lender hereunder that the Borrower will not
make such payment in full, the Administrative Agent may assume
that the Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to
each such Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent the Borrower shall
not have so made such payment in full to the Administrative
Agent, each such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender
repays such amount to the Administrative Agent, at the Federal
Funds Rate.
SECTION 2.12. Taxes. (a) Any and all payments by the
Borrower hereunder shall be made, in accordance with Section
2.11, free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and each Agent, taxes
measured by its net income that are imposed on it by the
jurisdiction under the laws of which such Lender or such Agent
(as the case may be) is organized or qualified to do business or
any political subdivision thereof and, in the case of each
Lender, by the jurisdiction of such Lender's Applicable Lending
Office or any political subdivision thereof and excluding any
gross receipts tax imposed on an Agent or Lender (as the case may
be) in lieu of a net income tax by a jurisdiction (other than the
United States) under the laws of which such Agent or Lender is
organized, is qualified to do business or has its Applicable
Lending Office or any political subdivision of any such
jurisdiction (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender or any Agent, (i) the sum payable
shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to
additional sums payable under this Section 2.12) such Lender or
such Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes or any other excise
or property taxes, charges or similar levies that arise from any
payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement
(hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and each
Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 2.12) paid by
such Lender or such Agent (as the case may be) and any liability
(including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date such Lender or such
Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower will furnish to the Administrative Agent, at
its address referred to in Section 8.02, appropriate evidence of
payment thereof. If no Taxes are payable in respect of any
payment hereunder by or on behalf of the Borrower through an
account or branch outside the United States or on behalf of the
Borrower by a payor that is not a United States person, the
Borrower will furnish, or will cause such payor to furnish, to
the Administrative Agent, at such address, a certificate from
each appropriate taxing authority or authorities, or an opinion
of counsel acceptable to the Administrative Agent, in either case
stating that such payment is exempt from or not subject to Taxes.
For purposes of this subsection (d) and subsection (e) hereof,
the terms "United States" and "United States person" shall have
the meanings specified in Section 7701 of the Code.
(e) Each Lender organized under the laws of a
jurisdiction outside the United States shall, on or prior to the
date of its execution and delivery of this Agreement in the case
of each initial Lender and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter if requested
in writing by the Borrower or by the Administrative Agent (but
only so long as such Lender remains lawfully able to do so),
provide the Borrower and the Administrative Agent with Internal
Revenue Service Form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party that
reduces the rate of withholding tax on payments under this
Agreement or certifying that the income receivable pursuant to
this Agreement is effectively connected with the conduct of a
trade or business in the United States. If the form provided by
an initial Lender at the time such Lender first becomes a party
to this Agreement indicates a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from Taxes in the case of such initial Lender
and in the case of any assignee of such initial Lender (to the
extent interest payments to such assignee are subject to
withholding tax on the date of the Assignment and Acceptance
pursuant to which such assignee became a Lender hereunder). In
addition, if the form provided by any assignee Lender on the date
of the Assignment and Acceptance pursuant to which such Lender
became a Lender indicates a United States interest withholding
tax at a rate in excess of the rate of such tax applicable to the
assignor Lender on such date, the increase in such rate shall
also be excluded from Taxes in the case of such assignee Lender.
If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information
necessary to compute the tax payable and information required on
the date hereof by Internal Revenue Service Form 1001 or 4224,
that the Lender reasonably considers to be confidential, the
Lender shall give notice thereof to the Borrower and shall not be
obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender has
failed to provide the Borrower with the appropriate form
described in subsection (e), including any failure to provide
confidential information on such form pursuant to subsection (e)
(other than any failure to provide a form or information that is
due to a change in law occurring after the date on which a form
originally was required to be provided, or if such form otherwise
is not required under subsection (e)), such Lender shall not be
entitled to indemnification under subsection (a) with respect to
Taxes imposed by the United States; provided, however, that
should a Lender become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such
steps as such Lender shall reasonably request to assist such
Lender to recover such Taxes.
(g) Notwithstanding any contrary provisions of this
Agreement, in the event that a Lender that originally provided
such form as may be required under subsection (e) thereafter
ceases to qualify for complete exemption from United States
withholding tax, such Lender may assign its interest under this
Agreement to any assignee and such assignee shall be entitled to
the same benefits under this Section 2.12 as the assignor
provided that the rate of United States withholding tax
applicable to such assignee shall not exceed the rate then
applicable to the assignor.
(h) Any Lender claiming any additional amounts payable
pursuant to this Section 2.12 shall use its best efforts
(consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable
Lending Office if the making of such a change would avoid the
need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such
Lender.
SECTION 2.13. Sharing of Payments, Etc. If any Lender
shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of
the Advances owing to it under any Facility (other than pursuant
to Section 2.10, 2.12 or 8.04(c)) in excess of its ratable share
of payments on account of the Advances under such Facility
obtained by all the Appropriate Lenders, such Lender shall
forthwith purchase from the other Appropriate Lenders such
participations in the Advances under such Facility owing to them
as shall be necessary to cause such purchasing Lender to share
the excess payment ratably with each of them; provided, however,
that, if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such purchase from each
Appropriate Lender shall be rescinded and such Lender shall repay
to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such
Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this
Section 2.13 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-
off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of
such participation.
SECTION 2.14. Use of Proceeds. The proceeds of the
Advances shall be available (and the Borrower agrees that it
shall use such proceeds) solely to pay transaction fees and
expenses, to finance or refinance, as the case may be, the
acquisition of certain interests in and to the Cellular Entities
serving the New York, New York MSA and the Litchfield,
Connecticut RSA, respectively (such acquisitions, the
"Acquisitions"), and for general corporate purposes.
SECTION 2.15. Evidence of Indebtedness. (a) Each
Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the Indebtedness of the Borrower
to such Lender resulting from each Advance owing to such Lender
from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(b) The Register maintained by the Administrative
Agent pursuant to Section 8.07(c) shall include a control
account, and a subsidiary account for each Lender, in which
accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made, the Type of Advances comprising
such Borrowing and any Interest Period applicable thereto,
(ii) the terms of each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to
each Lender hereunder and (iv) the amount of any sum received by
the Administrative Agent from the Borrower hereunder and each
Lender's share thereof.
(c) The entries made in the Register shall be
conclusive and binding for all purposes, absent manifest error.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial
Borrowing. The obligation of each Lender to make an Advance on
the occasion of the initial Borrowing is subject to the following
conditions precedent:
(a) The AT&T Merger Agreement shall be in full force
and effect and shall not have been terminated.
(b) There shall have occurred no material adverse
change in the business, condition (financial or otherwise),
operations, properties or prospects of the Borrower or any
Principal Cellular Partnership or in the cellular industry
generally since March 31, 1994.
(c) There shall exist no action, suit, investigation,
litigation or proceeding affecting any LIN Party, any of the
Borrower's other Subsidiaries or any Principal Cellular
Partnership or the cellular industry generally pending or
threatened before any court, governmental agency or
arbitrator that (i) would be reasonably likely to have a
material adverse effect on the business, condition
(financial or otherwise), operations, properties or
prospects of the Borrower or any Principal Cellular
Partnership, (ii) could, in the good faith judgment of the
Lenders, have a material adverse effect on (a) the rights
and remedies of the Agents or the Lenders under this
Agreement or (b) the ability of any LIN Party to perform its
obligations under this Agreement or the consummation of
transactions contemplated hereby (other than the matters set
forth in Schedule IV (the "Disclosed Litigation"),
including, without limitation, the Acquisitions, or (iii)
purports to affect the legality, validity or enforceability
of the Merger, this Agreement or the confirmation of the
transactions contemplated hereby, and there shall have been
no adverse change in the status, or financial effect on the
Borrower, the New York Partnership, the Los Angeles
Partnership or any other Material Entity, or any Principal
Cellular Partnership, of the Disclosed Litigation from that
described on Schedule IV hereto.
(d) The Borrower shall have paid all accrued fees and
expenses of the Agents and the Lenders (including, without
limitation, the accrued fees and expenses of counsel to the
Managing Agents).
(e) All governmental consents and approvals and third
party consents and approvals necessary in connection with
this Agreement and the transactions contemplated hereby,
including, without limitation, the Acquisitions, shall have
been obtained (without the imposition of any conditions or
contingencies that are not acceptable to the Lenders) and
shall remain in full force and effect (except as set forth
on Schedule VI), and all applicable waiting periods shall
have expired without any action being taken by any competent
authority and no law or regulation shall be applicable that,
in the good faith judgment of the Lenders, restrains,
prevents or imposes materially adverse conditions upon this
Agreement and the transactions contemplated hereby
(including, without limitation, the Acquisitions) (except as
set forth on Schedule VI).
(f) The 1990 Required Lenders shall have executed the
Amendment and the Amendment shall be in full force and
effect.
(g) The Administrative Agent shall have received on or
before the date of the initial Borrowing (unless otherwise
specified) the following, each dated (unless otherwise
specified) such date of delivery, in form and substance
satisfactory to the Lenders (unless otherwise specified),
and in sufficient copies for each Lender (unless otherwise
specified):
(i) Certified copies of the resolutions of the
Board of Directors of the Borrower approving this
Agreement and the Acquisitions, and certified copies of
all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect
to this Agreement and the Acquisitions.
(ii) A copy of the charter of the Borrower and
each amendment thereto, certified (as of a date
reasonably near the date of the initial Borrowing
hereunder) by the Secretary of State of Delaware as
being a true and correct copy thereof.
(iii) A copy of a certificate of the Secretary
of State of the Borrower's state of incorporation,
dated reasonably near the date of the initial
Borrowing, listing the charter of the Borrower and each
amendment thereto on file in his office and certifying
that (A) the Borrower has paid all franchise taxes to
the date of such certificate and (B) the Borrower is
duly incorporated and in good standing under the laws
of such state.
(iv) A telegram from the Secretary of State of the
Borrower's state of incorporation dated on or about the
date of the initial Borrowing certifying that the
Borrower is a presently subsisting corporation in such
state and in good standing under the laws of such
state.
(v) A certificate of the Borrower, signed on
behalf of the Borrower by its president or a vice
president and its secretary or any assistant secretary,
dated the date of the initial Borrowing (the statements
made in which shall be true on and as of the date of
the initial Borrowing), certifying as to (A) the
absence of any amendments to the charter of the
Borrower since the date of the certificate referred to
in Section 3.01(g)(iii), (B) a true and correct copy of
the bylaws of the Borrower as in effect on the date of
the initial Borrowing, (C) the due incorporation and
good standing of the Borrower, as a corporation
organized under the laws of its state of incorporation,
and the absence of any proceeding for the dissolution
or liquidation of the Borrower, (D) the truth of the
representations and warranties contained in this
Agreement as though made on and as of the date of the
initial Borrowing and (E) the absence of any event
occurring and continuing, or resulting from the initial
Borrowing, that constitutes a Default.
(vi) A certificate of the secretary or an
assistant secretary of the Borrower certifying the
names and true signatures of the officers of the
Borrower signing this Agreement and the other documents
to be delivered hereunder.
(vii) A certified copy of the Amendment, in
substantially the form of Exhibit D hereto, duly
executed by the parties thereto.
(viii) Such financial, business and other
information regarding each LIN Party and its respective
Subsidiaries and each Principal Cellular Partnership as
any Lender shall have requested, including, without
limitation, information as to possible contingent
liabilities, tax information, environmental
information, obligations under ERISA and Welfare Plans,
collective bargaining agreements and other arrangements
with employees, annual financial statements dated
December 31, 1993 and interim financial statements
dated the end of the most recent fiscal quarter for
which financial statements are available; provided,
however, that no Lender shall be entitled to receive
any such information if the Borrower reasonably
believes that the disclosure of such information to
such Lender would violate the confidentiality
provisions of an Existing Partnership Agreement.
(ix) Certificates and letters attesting to the
Solvency of the Borrower after giving effect to the
transactions contemplated hereby, from the Borrower's
chief financial officer, such certificate to be
substantially in the form of Exhibit E.
(x) A certificate of the Borrower having attached
thereto a true and correct copy of each of the Material
Agreements and all amendments thereto (such copies to
be retained by the Administrative Agent; provided that
any Lender may, at any reasonable time and upon
reasonable notice to the Administrative Agent, examine
such copies).
(xi) A favorable opinion of Andrew A. Quartner,
Vice President-Law of the Borrower, in substantially
the form of Exhibit F hereto, and as to such other
matters as any Lender through the Administrative Agent
may reasonably request.
(xii) Favorable opinions of Cathleen Massey,
Esq., FCC counsel to the Borrower, in substantially the
form of Exhibit G hereto, and of Scott Morris, Vice-
President Law of McCaw, PUC counsel to the Borrower, in
substantially the form of Exhibit H hereto, and as to
such other matters as any Lender through the
Administrative Agent may reasonably request and such
other favorable opinions of such other FCC and PUC
counsel as any Lender through the Administrative Agent
may reasonably request.
(xiii) A favorable opinion of Shearman &
Sterling, special counsel to the Managing Agents, in
substantially the form of Exhibit I hereto.
(xiv) Such other documents as any Lender
through the Administrative Agent may reasonably
request.
SECTION 3.02. Conditions Precedent to Each Borrowing.
The obligation of each Appropriate Lender to make an Advance on
the occasion of each Borrowing (including the initial Borrowing)
shall be subject to the further conditions precedent that on the
date of such Borrowing the following statements shall be true
(and each of the giving of the applicable Notice of Borrowing and
the acceptance by the Borrower of the proceeds of such Borrowing
or, in the event that the Borrower does not deliver a Notice of
Borrowing, the acceptance by the Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the
Borrower that on the date of such Borrowing such statements are
true):
(a) no event has occurred and is continuing, or would
result from such Borrowing or from the application of the
proceeds therefrom, that constitutes an Event of Default;
and
(b) such Borrowing has been duly authorized by all
necessary corporate action.
SECTION 3.03. Conditions Precedent to Certain
Borrowings. The obligation of each Appropriate Lender to make an
Advance on the occasion of each Borrowing (including the initial
Borrowing) that would increase the aggregate outstanding amount
of Advances owing to such Lender immediately prior to the making
of such Advance shall be subject to the further condition
precedent that on the date of such Borrowing (a) the following
statements shall be true (and each of the giving of the
applicable Notice of Borrowing and the acceptance by the Borrower
of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that on the date of
such Borrowing such statements are true):
(i) the representations and warranties contained in
this Agreement are correct on and as of the date of such
Borrowing, before and after giving effect to such Borrowing
and to the application of the proceeds therefrom, as though
made on and as of such date, except to the extent that any
such representation or warranty by its terms relates to a
specified prior date; and
(ii) no event has occurred and is continuing, or would
result from such Borrowing or from the application of the
proceeds therefrom, that constitutes a Default;
and (b) the Administrative Agent shall have received such other
approvals, opinions or documents as any Appropriate Lender
through the Administrative Agent may reasonably request; provided
that the obligations of each Lender to make an Advance pursuant
to Section 8.04(d) shall be absolute and unconditional and shall
be made by such Lender notwithstanding the failure of the
Borrower to satisfy any condition set forth in Section 3.02 or
3.03.
SECTION 3.04. Determinations Under Sections 3.01, 3.02
and 3.03. For purposes of determining compliance with the
conditions specified in Section 3.01, or, in the case of the
initial Borrowing, Sections 3.02 or 3.03, each Lender shall be
deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder
to be consented to or approved by or acceptable or satisfactory
to the Lenders unless an officer of the Administrative Agent
responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to a Borrowing
specifying its objection thereto (unless such objection shall
have been withdrawn by notice to the Administrative Agent to that
effect or such Lender shall have made available to the
Administrative Agent such Lender's ratable portion of such
Borrowing (as the case may be)).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) Organization of the Loan Parties. Each LIN Party
(i) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in
which it owns or leases property or in which the conduct of
its business requires it to so qualify or be licensed except
where the failure to so qualify or be licensed would not
have a material adverse effect on its business, condition
(financial or otherwise), operations, properties or
prospects and (iii) has all requisite corporate power and
authority to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be
conducted.
(b) Organization of the Borrower's Subsidiaries, the
Principal Cellular Partnerships and Minority Entities. Set
forth in Schedule V hereto is a complete and accurate list,
as of the date hereof, of all of the Borrower's
Subsidiaries, the Principal Cellular Partnerships and all of
the Minority Entities, showing as of the date hereof (as to
each such Person) (i) for each of the Borrower's
Subsidiaries, the jurisdiction of its incorporation, the
number of shares of each class of capital stock authorized,
and the number outstanding on the date hereof and the
percentage of the outstanding shares of each such class
owned (directly or indirectly) by the Borrower and the
number of shares covered by all outstanding options,
warrants, rights of conversion or purchase and similar
rights at the date hereof and (ii) for each Principal
Cellular Partnership and each Minority Entity, the
percentage of equity interests owned by, and the percentage
of voting power held by, the Borrower or one of the
Borrower's Subsidiaries. All of the outstanding capital
stock of all of the Borrower's Subsidiaries has been validly
issued, is fully paid and non-assessable and all such shares
are owned directly or indirectly by the Borrower, free and
clear of all Liens (other than Liens created by the 1990
Loan Documents and the rights created by the instruments
referred to in Schedule X hereto). Each of the Borrower's
Subsidiaries and each Principal Cellular Partnership (i) is
a corporation or partnership (as the case may be) duly
organized, validly existing and, with respect to the
Borrower's corporate Subsidiaries, in good standing under
the laws of the jurisdiction of its incorporation or
formation (as the case may be), (ii) is, in the case of the
Borrower's corporate Subsidiaries, duly qualified as a
foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property or in which
the conduct of its business requires it to so qualify or be
licensed, except where the failure to so qualify or be
licensed would not have a material adverse effect on its
business, condition (financial or otherwise), operations,
properties or prospects and (iii) has all requisite
corporate or partnership power and authority (as the case
may be) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be
conducted.
(c) Compliance with Law. The execution, delivery and
performance by the Borrower of this Agreement and the
consummation of the other transactions contemplated hereby
are within the corporate power of the Borrower, have been
duly authorized by all necessary corporate action and do not
and will not upon the consummation thereof (i) contravene
the charter or bylaws of the Borrower, (ii) violate any law
(including, without limitation, the Securities Exchange Act
of 1934, as amended, the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of
1970, as amended, and the Communications Act of 1934, as
amended), rule, regulation (including, without limitation,
Regulations X and G of the Board of Governors of the Federal
Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the
breach of, or constitute a default under, any loan or credit
agreement, indenture, mortgage, deed of trust, lease,
material contract, agreement or instrument binding on or
affecting the Borrower, any of the Borrower's Subsidiaries
or any Principal Cellular Partnership or any of their
respective properties or (iv) result in or require the
creation or imposition of any Lien upon or with respect to
any of the properties of the Borrower, any of the Borrower's
Subsidiaries or any Principal Cellular Partnership. No LIN
Party, Subsidiary of such LIN Party or Principal Cellular
Partnership is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract,
loan agreement, indenture, mortgage, deed of trust, lease,
contract, agreement or credit instrument, the violation or
breach of which could have a material adverse effect on the
business, condition (financial or otherwise), operations,
properties or prospects of the Borrower, the New York
Partnership, the Los Angeles Partnership or any other
Material Entity.
(d) Approvals. No authorization, consent, approval or
other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third
party (including, without limitation, all Regulatory
Authorities) is required for the due execution, delivery and
performance by the Borrower of this Agreement, the
Acquisitions or for the consummation of the other
transactions contemplated hereby or thereby, except as
otherwise noted on Schedule VI. All applicable waiting
periods in connection with the Acquisitions and the other
transactions contemplated hereby have expired, or prior to
the consummation thereof will have expired, without any
action having been taken by any competent authority
restraining, preventing or imposing materially adverse
conditions upon the Acquisitions or the rights of any LIN
Party, any of such LIN Party's Subsidiaries or any Principal
Cellular Partnership freely to transfer or otherwise dispose
of, or to create any Lien on, any properties now owned or
hereafter acquired by any of them, except as otherwise set
forth in Schedule VI hereto.
(e) Legal Effect. This Agreement has been duly
executed by the Borrower. This Agreement is the legal,
valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms, subject
to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting
creditors' rights generally.
(f) Financial Information. (i) The Consolidated
balance sheets of LIN and LIN's Subsidiaries as at December
31, 1993, and the related Consolidated statements of income,
stockholders' equity and cash flows of LIN and LIN's
Subsidiaries for the fiscal year then ended, and the
combined balance sheets of LIN's unconsolidated Affiliates
as at December 31, 1993, and the related combined statements
of income, partners' equity and cash flows of LIN's
unconsolidated Affiliates for the fiscal year then ended,
accompanied by an opinion of Ernst & Young, independent
public accountants, and (ii) the Consolidated condensed
balance sheets of LIN and LIN's Subsidiaries as at March 31,
1994, and the related Consolidated statements of income and
cash flows of LIN and LIN's Subsidiaries for the three
months then ended, duly certified by a Financial Officer of
the Borrower, copies of which have been furnished to each
Lender, present fairly, in all material respects, subject,
in the case of said balance sheets as at March 31, 1994, and
said statements of income and cash flows for the three
months then ended, to year-end audit adjustments, the
Consolidated financial position of LIN and LIN's
Subsidiaries and the consolidated results of operations and
cash flows and the combined financial position of LIN's
unconsolidated Affiliates and the combined results of
operations and cash flows, in each case as at such dates and
for the periods ended on such dates, all in conformity with
GAAP, and, since March 31, 1994, there has been no material
adverse change in the business, condition (financial or
otherwise), operations, properties or prospects of the
Borrower, LIN Cellular Holdings, the New York Partnership,
the Los Angeles Partnership or any other Material Entity or
in the cellular industry generally.
(g) Pro Forma Financial Information. The combined pro
forma balance sheet of the Borrower, the Borrower's
Subsidiaries and the other Principal Cellular Partnerships
(prepared on an Attributable Share basis) as at March 31,
1994, certified by a Financial Officer of the Borrower,
copies of which have been furnished to each Lender, presents
fairly, in all material respects, the combined pro forma
financial position of the Borrower, the Borrower's
Subsidiaries and the other Principal Cellular Partnerships
(as described above) as at such date, giving effect to the
consummation of the transactions contemplated hereby, all in
conformity with GAAP other than such financial information,
which has been presented on an Attributable Share basis.
(h) Disclosure. No information, exhibit or report
furnished by any LIN Party to any Agent or any Lender in
connection with the negotiation of this Agreement or
pursuant to the terms of this Agreement contains any untrue
statement of a material fact or omits to state a material
fact necessary to make the statements made therein, in light
of the circumstances under which they were made, not
misleading; provided that, with respect to financial
projections and forecasts included therein, the Borrower
represents that such projections and forecasts were prepared
in good faith based on the assumptions stated therein, which
assumptions were reasonable in light of the conditions
existing at the time of delivery of such projections and
forecasts, and represented, at the time of delivery, the
Borrower's best estimate of its future financial
performance.
(i) Material Litigation. Other than the Disclosed
Litigation, there is no action, suit, investigation,
litigation or proceeding affecting any LIN Party, any of
such LIN Party's Subsidiaries or any Principal Cellular
Partnership pending or threatened before any court,
arbitrator, governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, that
could have a material adverse effect on (i) the business,
condition (financial or otherwise), operations, properties
or prospects of the Borrower or the New York Partnership,
the Los Angeles Partnership or any other Material Entity,
(ii) the rights and remedies of the Agents or the Lenders
under this Agreement or (iii) the ability of the Borrower to
perform its obligations under this Agreement, or that
purports to affect the legality, validity or enforceability
of this Agreement, or the consummation of the transactions
contemplated hereby; and there has been no adverse change in
the status, or financial effect on the Borrower, the New
York Partnership, the Los Angeles Partnership or any other
Material Entity, of the Disclosed Litigation from that
described on Schedule IV.
(j) ERISA Plans. Set forth in Schedule VII hereto is
a complete and accurate list, as of the date hereof, of all
Plans, Multiemployer Plans and Welfare Plans with respect to
any employees of the Borrower or any of the Borrower's
Subsidiaries and all Welfare Plans that provide health or
medical benefits to former employees of the Borrower or any
of the Borrower's Subsidiaries.
(k) No Reportable Event. As of the date hereof, no
ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan.
(l) Plan Funding. Schedule B (Actuarial Information)
to the 1992 annual report (Form 5500 Series) for each Plan,
copies of which have been filed with the Internal Revenue
Service and furnished to the Lenders, is complete and
accurate and fairly presents the funding status of such
Plan, and since the date of such Schedule B there has been
no material adverse change in such funding status.
(m) Post Retirement Benefit Obligations. Except as
set forth on the Borrower's financial statements provided
under Section 3.01(g)(viii), the Borrower and its
Subsidiaries have no material liability with respect to
"expected post retirement benefit obligations" within the
meaning of Statement of Financial Accounting Standards No.
106.
(n) No Catastrophic Events. Neither the business nor
the properties of any LIN Party, any of such LIN Party's
Subsidiaries or any Principal Cellular Partnership are
affected by any fire, explosion, accident, strike, lockout
or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance) that could have a
material adverse effect on the business, condition
(financial or otherwise), operations, properties or
prospects of the Borrower, the New York Partnership, the Los
Angeles Partnership or any other Material Entity.
(o) Compliance with Environmental Law. The operations
and properties of each LIN Party, each of such LIN Party's
Subsidiaries and each Principal Cellular Partnership comply
in all material respects with all Environmental Laws and
neither utilize, contain nor are affected by any Hazardous
Materials that are not treated in compliance with all
Environmental Laws, and no LIN Party, or any of such LIN
Party's Subsidiaries or any Principal Cellular Partnership
has any material liability, contingent or otherwise, under
any Environmental Law.
(p) No Burdensome Agreements. No LIN Party,
Subsidiary of such LIN Party or Principal Cellular
Partnership is a party to any indenture, loan or credit
agreement or any lease or other agreement or instrument or
subject to any charter, corporate restriction or partnership
restriction that could have a material adverse effect on
(i) the business, condition (financial or otherwise),
operations, properties or prospects of the Borrower, the New
York Partnership, the Los Angeles Partnership or any other
Material Entity, (ii) the rights and remedies of the Agents
or the Lenders under this Agreement or (iii) the ability of
the Borrower to carry out its obligations under this
Agreement.
(q) Taxes. Each LIN Party, each of such LIN Party's
Subsidiaries and each Principal Cellular Partnership has
caused to be filed or has been included in all tax returns
(Federal, state and local) required to be filed by or with
respect to each such Person or its property and has paid all
taxes shown thereon to be due, together with applicable
interest and penalties.
(r) Investment Company Act of 1940. No LIN Party or
Subsidiary of such LIN Party is an "investment company" or
an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended.
Neither the making of any Advances, nor the application of
the proceeds or repayment thereof by the Borrower nor the
consummation of the other transactions contemplated hereby
will violate any provision of such Act or any rule,
regulation or order of the Securities and Exchange
Commission thereunder.
(s) Solvency. The Borrower is Solvent.
(t) Condition of System. All of the material
properties, equipment and systems of each LIN Party, each of
such LIN Party's Subsidiaries and each Principal Cellular
Partnership are, and all material properties, equipment and
systems to be added in connection with any contemplated
system expansion or construction will be, in good repair,
working order and condition and are and will be in material
compliance with all applicable standards, rules or
requirements imposed by (i) any governmental agency or
authority (including, without limitation, any Regulatory
Authority), (ii) any material Franchise and (iii) any
agreements with telephone companies.
(u) Fees. Each LIN Party, each of such LIN Party's
Subsidiaries and each Principal Cellular Partnership has
paid all franchise, license or other fees and charges that
have become due pursuant to any material Franchise in
respect of its Cellular Businesses and has made adequate
provisions for any such fees and charges that have accrued,
except where the failure to pay such fees and charges would
not be reasonably likely to (i) have a material adverse
effect on the business, condition (financial or otherwise),
operations, properties or prospects of the Borrower, the New
York Partnership, the Los Angeles Partnership or any other
Material Entity or (ii) result in the revocation,
termination or adverse modification of a material Franchise
held by such LIN Party, such Subsidiary or such Principal
Cellular Partnership.
(v) Public Utility Holding Company Act. No LIN Party
is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company", as such
terms are defined in the Public Utility Holding Company Act
of 1935, as amended.
(w) Capital Stock. On the date hereof, the authorized
capital stock of the Borrower consists of 50,000 shares of
common stock, par value $1.00 per share, of which 300 shares
are issued and outstanding. All of such outstanding common
stock of the Borrower has been validly issued, is fully paid
and non-assessable and is owned by LCN free and clear of all
Liens (other than Liens created by the 1990 Loan Documents).
On the date hereof, there are no commitments by the Borrower
for the sale or other disposition of, and no outstanding
options to purchase, any of its capital stock. Neither the
Borrower nor any of the Borrower's Subsidiaries is subject
to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any shares of its capital stock
except as permitted under Section 5.02(f)(ii).
(x) No Limitations on Dividends and Distributions. No
LIN Party, Subsidiary of such LIN Party or Principal
Cellular Partnership is subject or party to any agreement,
Lien, charter, bylaw, partnership, regulatory or other
provision (except for applicable statutory corporate law)
restricting, directly or indirectly, the payment of
dividends by such LIN Party's Subsidiary or the making of
distributions, advances or other cash payments by any such
Subsidiary or Principal Cellular Partnership other than the
limitations contained in the agreements set forth in
Schedule VIII hereto.
(y) Licenses. Each LIN Party, each of such LIN
Party's Subsidiaries and each Principal Cellular Partnership
has obtained all necessary Franchises from, and has filed
all required registrations, applications, reports and other
documents with, all Regulatory Authorities for its
respective businesses as currently conducted. Each such
Franchise is valid and in full force and effect; no event
has occurred that would be reasonably likely to (i) result
in the revocation, termination or adverse modification of
any such Franchise, or (ii) affect materially and adversely
any rights of the Borrower or any Principal Cellular
Partnership thereunder; no such Person has any reason to
believe that such Franchises will not be renewed in the
ordinary course; and each such Person has sufficient time,
materials, equipment, contract rights and other required
resources to complete, in a timely fashion and in full,
construction of all their Cellular Systems in compliance
with all applicable technical standards and construction
requirements and deadlines of any applicable Regulatory
Authority.
(z) Regulation of the Lenders. Neither any Agent nor
any Lender will, by reason of the execution, delivery and
performance (other than the enforcement of remedies) of this
Agreement, be subject to the regulation or control of either
the FCC or any other Regulatory Authority.
(aa) Existing Indebtedness. Set forth in Schedule II
hereto is a complete and accurate list of all Existing
Indebtedness, showing as of the date hereof the principal
amount outstanding thereunder.
(bb) Material Agreements. Set forth in Schedule IX
hereto is a complete and accurate list of all Material
Agreements as of the date hereof, showing the parties,
subject matter and term thereof. Each Material Agreement
set forth in such Schedule IX has been duly authorized,
executed and delivered by all parties thereto, has not been
amended or otherwise modified (other than as indicated on
Schedule IX hereto and as permitted by Section 5.02(l)), is
in full force and effect and is binding upon and enforceable
against all parties thereto in accordance with its terms,
and, to the Borrower's knowledge, there exists no default
under any Material Agreement by any party thereto. Each
such Material Agreement complies with all applicable rules,
regulations and standards of the FCC and other Regulatory
Authorities.
(cc) Ownership. Schedule V hereto sets forth as of the
date hereof a complete and correct list of (i) each Cellular
Entity in which any of the Borrower's Subsidiaries or any
Principal Cellular Partnership has a Franchise Interest
showing whether such Entity is a Cellular Licensee, Cellular
Permittee or Cellular Tentative Selectee, (ii) each MSA or
RSA that such Cellular Entity is authorized to serve,
(iii) the name of each of the Borrower's Subsidiaries and
each Principal Cellular Partnership that owns any such
Franchise Interest, (iv) the form, class and percentage
ownership and voting interest of each of the Borrower's
Subsidiaries and each Principal Cellular Partnership in such
Cellular Entity, (v) the population of each MSA or RSA
authorized to be served by each such Cellular Entity
according to the Donnelly Marketing Service population
estimates for 1989, (vi) the expiration date, if any, of the
Franchise of such Cellular Entity, (vii) to the extent not
otherwise set forth in Schedule V, each ownership interest
of any of the Borrower's Subsidiaries or any Principal
Cellular Partnership in any Person, and the form, class and
percentage of such ownership interest and (viii) the
percentage of all outstanding Franchise Interests owned or
subject to any agreement to purchase or sell or any option,
put or call to which the Borrower or any of the Borrower's
Subsidiaries or any Principal Cellular Partnership is a
party.
(dd) Title to Property. Each LIN Party, each of such
LIN Party's Subsidiaries and each Principal Cellular
Partnership has good and sufficient title to its respective
properties and assets free and clear of all Liens, other
than Liens created or permitted by the 1990 Loan Documents.
(ee) Deposit Accounts. Neither the Borrower nor any of
the Borrower's Subsidiaries has any deposit accounts other
than the deposit accounts expressly permitted under the 1990
Credit Agreement.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will, unless the Required
Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. (i) Comply, and cause
each of the Borrower's Subsidiaries and each Principal
Cellular Partnership to comply, in all material respects,
with all applicable law, rules, regulations and orders, such
compliance to include, without limitation, compliance with
the Communications Act of 1934, as amended, ERISA, all
applicable Environmental Law and the Racketeer Influenced
and Corrupt Organizations Chapter of the Organized Crime
Control Act of 1970, as amended, and (ii) obtain and
maintain, and cause each of the Borrower's Subsidiaries and
each Principal Cellular Partnership to obtain and maintain,
all licenses, permits, franchises or other governmental
authorizations and approvals necessary to own, acquire or
dispose of their respective properties, to conduct their
respective businesses or to comply with the FCC's or any
other Regulatory Authority's construction, operating and
reporting requirements, the violation of which or the
failure to obtain or maintain which could materially
adversely affect the business, condition (financial or
otherwise), operations, properties or prospects of the
Borrower, the New York Partnership, the Los Angeles
Partnership or any other Material Entity.
(b) Payment of Taxes, Etc. Pay and discharge, and
cause each of the Borrower's Subsidiaries and each Principal
Cellular Partnership to pay and discharge, before the same
shall become delinquent, (i) all taxes, assessments and
governmental charges or levies imposed upon such Person or
upon such Person's property and (ii) all lawful claims that,
if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of the
Borrower's Subsidiaries nor any Principal Cellular
Partnership shall be required to pay or discharge any such
tax, assessment, charge or claim that is being contested in
good faith and by proper proceedings and as to which
appropriate reserves are being maintained.
(c) Maintenance of Insurance. Maintain, and cause
each of the Borrower's Subsidiaries and each Principal
Cellular Partnership to maintain, insurance with responsible
and reputable insurance companies or associations in such
amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower,
such Subsidiary or such Principal Cellular Partnership
operates.
(d) Preservation of Corporate and Partnership
Existence, Etc. Preserve and maintain, and cause each of
the Borrower's Subsidiaries and each Principal Cellular
Partnership to preserve and maintain, its corporate or
partnership existence, rights (charter and statutory) and
franchises; provided, however, that neither the Borrower,
nor any of the Borrower's Subsidiaries nor any Principal
Cellular Partnership shall be required to preserve any right
or franchise (other than any Franchise and the corporate or
partnership existence of any Person, the equity interest of
which are subject to the Security Agreements) if the Board
of Directors of the Borrower or such corporate Subsidiary or
the partnership committee of such other Subsidiary or
Principal Cellular Partnership shall determine that the
preservation thereof is no longer desirable in the conduct
of the business of the Borrower, such Subsidiary or such
Principal Cellular Partnership (as the case may be) and if
the loss thereof is not disadvantageous in any material
respect to the Borrower, the New York Partnership, the Los
Angeles Partnership or any other Material Entity or to the
Lenders.
(e) Visitation Rights. At any reasonable time and
from time to time and upon prior reasonable notice to the
Borrower, permit any Agent, any of the Lenders or any agents
or representatives thereof to examine and make copies of and
abstracts from the records and books of account of, and
visit the properties of, the Borrower, any of the Borrower's
Subsidiaries and any Principal Cellular Partnership and to
discuss the affairs, finances and accounts of the Borrower,
any of the Borrower's Subsidiaries and any Principal
Cellular Partnership with any of their officers or directors
or partners (as the case may be) and with their independent
certified public accountants; provided, however, that, to
the extent any such actions are prohibited by the terms of
any Existing Partnership Agreement, the Borrower shall use
its best efforts to obtain the consent of the other parties
thereto to such actions.
(f) Keeping of Books. Keep, and cause each of the
Borrower's Subsidiaries and each Principal Cellular
Partnership to keep, proper books of record and account, in
which full and correct entries shall be made of all
financial transactions and the assets and business of the
Borrower, each such Subsidiary and each such Principal
Cellular Partnership in accordance with GAAP.
(g) Maintenance of Properties, Etc. (i) Maintain and
preserve, and cause each of the Borrower's Subsidiaries and
each Principal Cellular Partnership to maintain and
preserve, all of its properties that are then useful in the
conduct of its business in good working order and condition,
ordinary wear and tear excepted, and, from time to time,
make or cause to be made all appropriate and proper repairs,
renewals, replacements, additions and improvements thereto
and keep all systems and equipment that are then subject to
compliance with any standards or rules (including, without
limitation, compliance with requirements as to the time
periods in which system construction must be completed)
imposed by any governmental agency or authority (including,
without limitation, the FCC or any other Regulatory
Authority) in material compliance with such standards or
rules, (ii) install and maintain all equipment and systems,
and cause each of the Borrower's Subsidiaries and each
Principal Cellular Partnership to install and maintain all
equipment and systems in compliance with any material
requirement (x) imposed under FCC or any other Regulatory
Authority regulations, permits, or licenses or (y) under
agreements affecting the Borrower, any of the Borrower's
Subsidiaries or any Principal Cellular Partnership and
(iii) maintain, preserve, protect and renew, and cause each
of the Borrower's Subsidiaries and each Principal Cellular
Partnership to maintain, preserve, protect and renew, all
material Franchises, service marks, trademarks and trade
names held by any of them that are useful or necessary to
operate their respective Cellular Systems.
(h) Performance of Material Agreements. Perform and
observe all the terms and provisions of each Material
Agreement to be performed or observed by it, maintain each
such Material Agreement in full force and effect, enforce
each such Material Agreement in accordance with its terms in
a manner consistent with the Borrower's best interests (such
determination to be made in the reasonable judgment of the
Required Lenders), take all such action to such end as may
be from time to time reasonably requested by the
Administrative Agent and is consistent with the terms of
such Material Agreement and, upon request of the
Administrative Agent, make to each other party to each such
Material Agreement such demands and requests for information
and reports or for action as the Borrower is entitled to
make under such Material Agreement, and cause each of the
Borrower's Subsidiaries and each Principal Cellular
Partnership to do so. Notwithstanding the foregoing,
nothing in this Section 5.01(h) shall prevent the Borrower,
any of the Borrower's Subsidiaries or any Principal Cellular
Partnership from amending, modifying or changing any term of
a Material Agreement to the extent permitted by Section
5.02(l).
(i) Transactions with Affiliates. Conduct, and cause
each of the Borrower's Subsidiaries and each of the
Principal Cellular Partnerships to conduct, all transactions
otherwise permitted hereunder and under the 1990 Loan
Documents with any of their Affiliates on terms that in all
material respects are fair and reasonable and no less
favorable to the Borrower, such Subsidiary or such Principal
Cellular Partnership (as the case may be) than it would
obtain in a comparable arm's-length transaction with a
Person not an Affiliate, other than (i) transactions
conducted in accordance with the provisions of the Tax
Sharing Agreement, (ii) transactions conducted in accordance
with the provisions of the Approved Services Agreement,
(iii) the acquisition of the LCH Assets to the extent
permitted by Section 5.02(e)(iii), (iv) subject to the
provisions of clause (v) below, transactions among the
Borrower and any of the Borrower's Subsidiaries or any
Principal Cellular Partnership, other than any of the
Borrower's Subsidiaries or any Principal Cellular
Partnership in which an Affiliate (other than the Borrower
and the Borrower's Subsidiaries) has an equity or other
ownership interest and (v) transactions with the Dallas
Partnership so long as the aggregate percentage of equity
interests having the power to vote to direct or control the
management of the Dallas Partnership that are owned directly
or indirectly by McCaw or an Affiliate thereof (other than
the Borrower and the Borrower's Subsidiaries) at the time of
consummation of any such transaction does not exceed the
percentage held by McCaw and its Affiliates on August 1,
1990.
(j) Reporting Requirements. Furnish to the Lenders:
(i) as soon as possible and in any event within
two days after the occurrence of each Default
continuing on the date of such statement, a statement
of a Financial Officer of the Borrower setting forth
details of such Default and the action that the
Borrower has taken and proposes to take with respect
thereto;
(ii) as soon as available and in any event within
60 days after the end of the first three fiscal
quarters of each fiscal year of the Borrower, a
Consolidated balance sheet of LIN and LIN's
Subsidiaries as of the end of such quarter and
Consolidated statements of income and cash flows of LIN
and LIN's Subsidiaries for such quarter and for the
period commencing at the end of the previous fiscal
year and ending with the end of such quarter, setting
forth in each case in comparative form the
corresponding figures for the corresponding periods of
the preceding fiscal year, all in reasonable detail and
duly certified (which certification may be subject to
year-end audit adjustments) by a Financial Officer of
LIN as having been prepared in conformity with GAAP;
(iii) as soon as available and in any event
within 60 days after the end of each fiscal quarter of
each fiscal year of the Borrower, (A) a combined
balance sheet of the Borrower, the Borrower's
Subsidiaries and the other Principal Cellular
Partnerships (prepared on an Attributable Share basis)
and a balance sheet of each of the New York
Partnership, the Dallas Partnership and, together, the
Houston Partnership and the Los Angeles Partnership, in
each case as of the end of such quarter and (B) a
combined statement of income of the Borrower, the
Borrower's Subsidiaries and the other Principal
Cellular Partnerships (prepared on an Attributable
Share basis), a statement of the aggregate amount of
capital expenditures of the Borrower, the Borrower's
Subsidiaries and the other Principal Cellular
Partnerships (determined on an Attributable Share
basis), a statement of cash flows of the Borrower,
statements of income of each of the New York
Partnership, the Dallas Partnership and, together, the
Houston Partnership and the Los Angeles Partnership and
a statement of the aggregate amount of capital
expenditures of such Partnership or Partnerships (as
the case may be), in each case for such quarter and for
the period commencing at the end of the previous fiscal
year and ending with the end of such quarter, setting
forth in each case in comparative form the
corresponding figures for the corresponding period of
the preceding fiscal year all in reasonable detail and
duly certified (which certification may be subject to
year-end audit adjustments) by a Financial Officer of
the Borrower as having been prepared in conformity with
GAAP, except that such certification shall state that
such financial information has been presented on an
Attributable Share basis, together with (x) a
certificate of a Financial Officer of the Borrower
stating (1) that no Default has occurred and is
continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and
the action that the Borrower has taken and proposes to
take with respect thereto and (2) the aggregate number
of subscribers served by all Cellular Entities in which
the Borrower, any of the Borrower's Subsidiaries or any
Principal Cellular Partnership has a Franchise Interest
and (y) a Compliance Certificate, including or
accompanied by information sufficient to enable the
Lenders to verify the calculations therein;
(iv) as soon as available and in any event within
120 days after the end of each fiscal year of the
Borrower, a copy of the annual audit report for such
year for LIN and LIN's Subsidiaries, including therein
a Consolidated balance sheet of LIN and LIN's
Subsidiaries as of the end of such fiscal year,
Consolidated statements of income, stockholders' equity
and cash flows of LIN and LIN's Subsidiaries, in each
case for such fiscal year and certified in a manner
acceptable to the Required Lenders by Ernst & Young,
any other Approved Accountant or any other independent
public accountants of recognized standing acceptable to
the Required Lenders, together with (A) a certificate
of such accounting firm to the Lenders stating that in
the course of the regular audit of the business of LIN
and LIN's Subsidiaries, which audit was conducted by
such accounting firm in accordance with generally
accepted auditing standards, such accounting firm has
obtained no knowledge that a Default has occurred and
is continuing, or if, in the opinion of such accounting
firm, a Default has occurred and is continuing, a
statement as to the nature thereof, (B) a certificate
of such accounting firm to the Lenders stating that the
financial statements of the Borrower, the Borrower's
Subsidiaries and the other Principal Cellular
Partnerships for the last quarter of such fiscal year
were prepared in conformity with GAAP (other than that
such financial information was presented on an
Attributable Share basis), (C) a Compliance
Certificate, including or accompanied by information
sufficient to enable the Lenders to verify the
calculations therein, (D) a certificate of a Financial
Officer of the Borrower stating that no Default has
occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the
nature thereof and the action that the Borrower has
taken and proposes to take with respect thereto and
(E) concurrently with the delivery of the financial
statements for fiscal year 1995 and for each fiscal
year occurring thereafter, a certificate of a Financial
Officer of the Borrower, in form satisfactory to the
Managing Agents, setting forth the Excess Cash Flow for
each such fiscal year and the calculation thereof;
(v) promptly and in any event within fifteen days
after the Borrower or any ERISA Affiliate knows or has
reason to know that any ERISA Event has occurred, a
statement of a Financial Officer of the Borrower
describing such ERISA Event and the action, if any,
that the Borrower or such ERISA Affiliate has taken or
proposes to take with respect thereto;
(vi) promptly and in any event within five
Business Days after receipt thereof by the Borrower or
any ERISA Affiliate, copies of each notice from the
PBGC stating its intention to terminate any Plan or to
have a trustee appointed to administer any Plan;
(vii) promptly and in any event within 30 days
after the filing thereof with the Internal Revenue
Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series)
with respect to each Plan maintained or participated in
by the Borrower, any of the Borrower's Subsidiaries or
any Principal Cellular Partnership that is an ERISA
Affiliate of the Borrower;
(viii) promptly and in any event within ten
Business Days after receipt thereof by the Borrower or
any ERISA Affiliate from the sponsor of a Multiemployer
Plan, a copy of each notice received by the Borrower or
any ERISA Affiliate concerning (A) the imposition of
Withdrawal Liability by any Multiemployer Plan, (B) the
reorganization or termination, within the meaning of
Title IV of ERISA, of any Multiemployer Plan or (C) the
amount of liability incurred, or that may be incurred,
by the Borrower or any ERISA Affiliate in connection
with any event described in clause (A) or (B) above;
(ix) promptly upon receipt thereof, copies of all
material financial reports or material written
recommendations, if any, submitted to LIN by its
auditors or received by the Borrower from the auditors
of any Principal Cellular Partnership, in connection
with each annual or interim audit or examination of its
books or the books of any of LIN's Subsidiaries or any
Principal Cellular Partnership (as the case may be);
provided that the Borrower shall not be obligated to
furnish any information pursuant to this clause (ix)
the disclosure of which the Borrower reasonably
believes would violate the confidentiality provisions
of any of the Existing Partnership Agreements; and
provided further that the Borrower shall use all
reasonable efforts to obtain the release of any such
information;
(x) promptly after the commencement thereof,
notice of all actions, suits and proceedings before any
court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign,
affecting the Borrower, any of the Borrower's
Subsidiaries or any Principal Cellular Partnership of
the type described in Section 4.01(i);
(xi) promptly after the sending or filing thereof,
copies of all proxy statements, financial statements
and reports that LIN, LCN, the Borrower or any of the
Borrower's Subsidiaries sends to its public
stockholders, and copies of all regular, periodic and
special reports, and all registration statements (other
than Registration Statements on Form S-8) that LIN,
LCN, the Borrower or any of the Borrower's Subsidiaries
files with, and any comments or correspondence (other
than those of a routine nature) received by LIN, LCN,
the Borrower or any of the Borrower's Subsidiaries
from, the Securities and Exchange Commission or any
governmental authority that may be substituted therefor
or with any national securities exchange;
(xii) promptly after the furnishing thereof,
any communication from any trustee, financial
institution or other Person acting in a similar
capacity pursuant to the terms of any indenture, loan
or credit or similar agreement with respect to a
principal amount of Indebtedness of $25,000,000 or more
that relates to the occurrence or continuance of an
event of default, the acceleration of Indebtedness or
the amendment, modification or waiver of any provision
of any such agreement;
(xiii) promptly after LIN, the Borrower or any
of the Borrower's Subsidiaries has reason to know, a
statement of a Financial Officer describing in
reasonable detail any (A) refusal or failure by any
instrumentality to renew or extend any Franchise with
respect to the Cellular Businesses of the Borrower, any
of the Borrower's Subsidiaries or any Principal
Cellular Partnership, (B) proposed abandonment or
proposed or actual revocation, termination or
materially adverse modification of any Franchise or any
dispute related thereto, (C) denial or threatened
denial or revocation or material modification by any
Regulatory Authority of any Franchise including,
without limitation, by the FCC of any FCC Licenses, (D)
notice from any Regulatory Authority of the imposition
of any fines or penalties or forfeitures or (E)
threats, notices or requests by any Regulatory Authority with
respect to any of the foregoing, or with respect to any
proceeding or hearing relating to the foregoing, that might
result in any of the foregoing, either individually or in the
aggregate, being materially adverse to the Borrower, the New York
Partnership, the Los Angeles Partnership or any other Material
Entity;
(xiv) promptly and in any event within five
Business Days after the occurrence thereof, notice of
each Material Event under the Private Market Value
Guarantee;
(xv) promptly after the sending or filing thereof,
any publicly available annual report or other
comparable report delivered by the Borrower, any of the
Borrower's Subsidiaries or any Principal Cellular
Partnership to any PUC;
(xvi) promptly after request therefor by any
Lender, a statement of the number of subscribers (as of
the end of any quarter) served by each of the New York
Partnership, the Dallas Partnership and, on a combined
basis, the Houston Partnership and the Los Angeles
Partnership; and
(xvii) promptly after request therefor, such
other information respecting the business, condition
(financial or otherwise), operations, properties or
prospects of the Borrower, any of the Borrower's
Subsidiaries or any Principal Cellular Partnership as
any Lender may from time to time reasonably request;
provided that a Lender shall not be entitled to receive
any information the disclosure of which the Borrower
reasonably believes would violate (A) the restrictions
regarding security imposed by the government of the
United States or any agency thereof with respect to
government contracts or (B) the confidentiality
provisions of any of the Existing Partnership
Agreements; provided further that the Borrower shall
use all reasonable efforts to obtain the release of any
such information requested pursuant to this clause
(xvii).
(k) Maintenance of Corporate Separateness. Conduct
its business and operations and the business and operations
of its Subsidiaries separately from McCaw, LIN and their
respective Subsidiaries (other than the Borrower and its
Subsidiaries), including, without limitation, (i) not
commingling funds or other assets of McCaw, LIN and their
respective Subsidiaries (other than the Borrower and its
Subsidiaries) with the funds or other assets of the Borrower
or one of its Subsidiaries, (ii) maintaining separate
corporate and financial records and observing all corporate
formalities, (iii) paying and causing each of its
Subsidiaries to pay its liabilities from its assets, (iv)
maintaining capitalization adequate to meet the business
needs of each of its Subsidiaries and (v) conducting and
causing each of its Subsidiaries to conduct
its dealings with third parties in its own name and as a separate
and independent entity.
SECTION 5.02. Negative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will not, without the written
consent of the Required Lenders:
(a) Liens, Etc. Create, incur, assume or suffer to
exist, or permit any of the Borrower's Subsidiaries or any
Principal Cellular Partnership to create, incur, assume or
suffer to exist, any Lien on or with respect to any of its
properties of any character (including, without limitation,
accounts) whether now owned or hereafter acquired, or sign
or file, or permit any of the Borrower's Subsidiaries or any
Principal Cellular Partnership to sign or file, under the
Uniform Commercial Code of any jurisdiction, a financing
statement that names the Borrower or any of the Borrower's
Subsidiaries or any Principal Cellular Partnership as
debtor, or sign, or permit any of the Borrower's
Subsidiaries or any Principal Cellular Partnership to sign,
any security agreement authorizing any secured party
thereunder to file such financing statement, or assign, or
permit any of the Borrower's Subsidiaries or any Principal
Cellular Partnership to assign, any accounts or other right
to receive income; excluding, however, from the operation of
the foregoing restrictions, the following:
(i) Liens created by the 1990 Loan Documents;
(ii) Permitted Liens;
(iii) the Liens described on Schedule X;
(iv) (A) Liens incurred in connection with
Indebtedness permitted by Section 5.02(b)(ii)(B) and
(B) purchase money Liens upon equipment or inventory
held or acquired by the Borrower, any of the Borrower's
Subsidiaries or any Principal Cellular Partnership in
the ordinary course of business to secure the purchase
price of such equipment and inventory and to secure
Indebtedness incurred by the Borrower, any of the
Borrower's Subsidiaries or any Principal Cellular
Partnership solely for the purpose of acquiring such
property; provided that no such Lien shall extend to or
cover any property other than (x) the property being
acquired and (y) in the case of Indebtedness permitted
by Section 5.02(b)(ii)(B)(2), (1) the capital stock of
or partnership interest in the Subsidiary of the
Borrower that is the borrower of the Indebtedness
secured by such Lien (other than any such capital stock
or partnership interest that constitutes collateral
under the 1990 Loan Documents) and (2) any leases of
cellular equipment or facilities (or, with respect to
such facilities, leases directly related thereto)
acquired with the proceeds of such Indebtedness;
(v) Liens incurred in connection with
Indebtedness permitted by Section 5.02(b)(ii)(C);
provided that such Liens shall extend only to the
assets of the Person that has become one of the
Borrower's Subsidiaries or to the equity interests of
the Borrower or one of the Borrower's Subsidiaries in
the Person that has become one of the Borrower's
Subsidiaries so long as such Person has not become a
direct Subsidiary of the Borrower or LIN Cellular
Holdings; and
(vi) the replacement, extension or renewal of any
Lien permitted by clause (iii) above upon or in the
same property theretofore subject thereto or the
replacement, extension or renewal (without increase of
principal amount) of the Indebtedness secured thereby.
(b) Indebtedness. (i) Create, incur, assume or
suffer to exist any Indebtedness other than the Indebtedness
set forth below; provided that, prior to and after giving
effect to the incurrence or assumption of such Indebtedness,
the Borrower is in compliance with the provisions of Section
5.03:
(A) Indebtedness under this Agreement;
(B) Indebtedness under the 1990 Loan Documents;
(C) additional unsecured Senior Debt that is on
terms (other than interest rate, prepayment premiums,
fees and other similar financial terms) no less
favorable to the Lenders and the Borrower than the
terms of the Indebtedness under the 1990 Loan Documents
and this Agreement and that has a weighted average life
to maturity at least equal to the then remaining
weighted average life of the Indebtedness under the
1990 Loan Documents and this Agreement; and
(D) Subordinated Debt; or
(ii) Permit any of the Borrower's Subsidiaries or any
Principal Cellular Partnership to create, incur, assume or
suffer to exist any Indebtedness other than, in the case of
each of the Borrower's Subsidiaries or any Principal
Cellular Partnership, the Indebtedness set forth below;
provided that, prior to and after giving effect to the
incurrence or assumption of such Indebtedness, the Borrower
is in compliance with the provisions of Section 5.03:
(A) Existing Indebtedness and extensions,
renewals and refinancings thereof that are on terms
(other than interest rate, prepayment premiums, fees
and other similar financial terms) no less favorable to
the Lenders and such Subsidiary or such Principal
Cellular Partnership (as the case may be) than such
Existing Indebtedness and that have a weighted average
life to maturity at least equal to the then remaining
weighted average life of such Existing Indebtedness;
(B) (1) Capitalized Leases of and purchase money
Indebtedness for equipment and inventory held or
acquired by any of the Borrower's Subsidiaries or any
Principal Cellular Partnership in the ordinary course
of business, (2) Indebtedness incurred solely to
finance the acquisition of cellular equipment or the
construction of facilities to be used in connection
with a Cellular Business including Indebtedness
incurred in connection with the development of any
newly acquired Cellular Business including guaranties
thereof; provided that, if such Indebtedness
constitutes a guarantee, such guarantee shall not
secure an amount of Indebtedness in excess of the
Attributable Share of the aggregate amount of all
Indebtedness so guaranteed, (3) Indebtedness incurred
to finance Severable Equipment in an aggregate
outstanding amount for any Cellular System not to
exceed the greater of (x) $25,000 in any Cellular
System or (y) ten cents for each Pop in such Cellular
System and (4) Indebtedness incurred to finance
Subscriber Equipment in an aggregate outstanding amount
for any Cellular System not to exceed fifty cents for
each Pop in such Cellular System; provided that the
aggregate amount of all such Indebtedness permitted to
be outstanding at any one time under this clause (B)
shall not exceed $400,000,000;
(C) Indebtedness of a Person that was outstanding
at the time such Person became one of the Borrower's
Subsidiaries (provided that such Indebtedness was not
incurred in anticipation of becoming such a Subsidiary)
and refinancings thereof on terms (other than interest
rate, prepayment premiums, fees and other similar
financial terms) no less favorable to the Lenders and
such Subsidiary than such outstanding Indebtedness and
that have a weighted average life to maturity at least
equal to the then remaining weighted average life of
such outstanding Indebtedness;
(D) Indebtedness (other than Indebtedness
described in clause (B)(2) above) attributable to one
of the Borrower's Subsidiaries or to a Principal
Cellular Partnership by reason of its holding or owning
a Minority Entity unless the partnership or other
agreement pursuant to which such Subsidiary or such
Principal Cellular Partnership holds or owns such
Minority Entity permits the Borrower, such Subsidiary
or such Principal Cellular Partnership to prohibit the
incurrence of such Indebtedness;
(E) Indebtedness to the Borrower or any other LIN
Party; provided that, upon the incurrence of such
Indebtedness, the Borrower or such other LIN Party
grants to the 1990 Collateral Agent, for the benefit of
the 1990 Lenders, a valid, perfected, first priority
Lien on such Indebtedness, in form and substance
satisfactory to the 1990 Required Lenders; and
(F) Indebtedness to another of the Borrower's
Subsidiaries; provided that promissory notes evidencing
such Indebtedness shall provide by their terms that
such Indebtedness shall, if not previously repaid,
automatically be cancelled upon any sale or other
disposition of the Subsidiary obligor thereunder in
connection with the exercise of remedies under the
appropriate 1990 Loan Documents.
(c) Mergers, Etc. Merge with or into, or consolidate
with or into, or transfer or dispose of all or substantially
all of its assets to any other Person or permit LIN Cellular
Holdings to do any of the foregoing; or permit any of the
Borrower's other Subsidiaries or any Principal Cellular
Partnership to merge with or into or consolidate with or
into, or transfer or dispose of all or substantially all of
its assets to, any other Person, unless (i) immediately
after giving effect thereto, no event shall have occurred
and be continuing that constitutes a Default, (ii) if the
surviving entity is not one of the Borrower's Subsidiaries
or a Principal Cellular Partnership, the disposition of such
Subsidiary or Principal Cellular Partnership shall otherwise
have been permitted under Section 5.02(d) and (iii) the
Borrower shall have delivered to the Administrative Agent a
certificate of a Financial Officer of the Borrower showing
in sufficient detail so as to permit computation that,
immediately after giving effect thereto, the Borrower is in
compliance with the covenants set forth in Section 5.03.
(d) Sales, Etc. of Assets. Sell, lease, transfer or
otherwise dispose of, or permit any of the Borrower's
Subsidiaries or any Principal Cellular Partnership to sell,
lease, transfer or otherwise dispose of, any of its assets,
including, without limitation, substantially all assets
constituting the business of a division, branch or other
unit operation, except:
(i) dispositions of assets (other than Franchise
Interests) in the ordinary course of business;
(ii) dispositions of assets in connection with
Permitted Asset Swaps; and
(iii) dispositions of assets if the Net Cash
Proceeds thereof are applied to prepay in full all
amounts payable by all LIN Parties under the 1990 Loan
Documents and the 1990 Commitments shall have been
terminated in accordance with the terms of the 1990
Credit Agreement and, thereafter, to prepay in full all
amounts payable by the Borrower hereunder and the
Commitments of the Lenders shall have been terminated.
(e) Investments in Other Persons. Make, or permit any
of the Borrower's Subsidiaries or any Principal Cellular
Partnership to make, any Investment in any Person, other
than:
(i) acquisitions of Cash Equivalents or
repurchase agreements and reverse repurchase agreements
with any securities dealer with respect to Cash
Equivalents that are fully collateralized by Cash
Equivalents;
(ii) acquisitions of Franchise Interests in MSAs
and Geographically Related RSAs, other than Franchise
Interests in McCaw, LIN or any of LIN's Subsidiaries
that is not also one of the Borrower's Subsidiaries
(other than as permitted by clause (iii) below);
(iii) the acquisition of the LCH Assets for a
purchase price not to exceed the redemption price of
the LCH Preferred Stock, so long as (A) the Borrower,
following the initial borrowing under the 1990 Credit
Agreement and prior to or at the time of such
acquisition, shall have received a cash capital
contribution to its common equity in an amount equal to
at least 50% of the sum of such purchase price plus the
amount of any dividends paid with respect to the LCH
Preferred Stock permitted by Section 5.02(f)(iv), (B)
the ratio of Consolidated Debt to Consolidated
Operating Cash Flow for the two fiscal quarters set
forth in the most recent Compliance Certificate
delivered by the Borrower to the Administrative Agent
multiplied by two (prior to and after giving effect to
such acquisition) is less than 5.5 to 1 and (C) prior
to and after giving effect to such acquisition no event
shall have occurred and be continuing that constitutes
a Default;
(iv) Investments in a Subsidiary of the Borrower,
a Principal Cellular Partnership or a Minority Entity;
provided that (x) any Indebtedness of a Subsidiary of
the Borrower or a Principal Cellular Partnership
resulting therefrom shall, to the extent it is owed to
the Borrower or any other LIN Party, be evidenced by a
promissory note that has been pledged to the 1990
Collateral Agent for the benefit of the 1990 Lenders
and (y) with respect to an Investment in a Principal
Cellular Partnership or a Minority Entity, such
Investment does not exceed the Attributable Share of
the aggregate Investments in such Partnership or
Minority Entity to be made by all other Persons;
provided that the limitation set forth in this clause
(y) shall not apply to the New York Partnership;
(v) loans and advances to employees that in the
aggregate do not exceed $10,000,000 at any time
outstanding;
(vi) loans and advances in the ordinary course of
business that in the aggregate do not exceed
$20,000,000 at any time outstanding;
(vii) loans or advances to LIN Satellite or
one of its wholly owned Subsidiaries in an aggregate
amount not to exceed $25,000,000 at any time
outstanding; provided that the Indebtedness resulting
therefrom shall be evidenced by a promissory note that
has been pledged to the 1990 Collateral Agent for the
benefit of the 1990 Lenders; and
(viii) Investments in an aggregate amount not
to exceed $20,000,000 at any time outstanding in
Persons that operate Cellular Businesses that are
directly related to the business conducted by any
Cellular Entity in which the Borrower, any of the
Borrower's Subsidiaries or any Principal Cellular
Partnership owns a Franchise Interest.
(f) Dividends, Etc. Declare or pay any dividends on
any of its capital stock or purchase, redeem, retire,
defease or otherwise acquire for value any of its capital
stock or capital stock of LIN or any capital stock of any of
LIN's Subsidiaries (other than the Borrower's Subsidiaries)
or any warrants, rights or options to acquire such capital
stock, now or hereafter outstanding, return any capital to
its stockholders as such or make any distribution of assets,
capital stock, warrants, rights, options, obligations or
securities to its stockholders as such, or permit any of the
Borrower's Subsidiaries to purchase, redeem, retire, defease
or otherwise acquire for value any capital stock of the
Borrower or capital stock of LIN or any capital stock of
LIN's Subsidiaries (other than the Borrower's Subsidiaries)
or any warrants, rights or options to acquire such capital
stock, except that the Borrower may:
(i) declare and pay dividends and distributions
payable only in, or purchase, redeem, retire, defease
or otherwise acquire such capital stock for value
consisting of, common stock of the Borrower or
Preferred Stock that complies with the requirements of
Section 5.02(n) or warrants, rights or options to
purchase such stock of the Borrower;
(ii) redeem equity issued as part of the
consideration for the acquisition of Franchise
Interests (other than the LCH Assets);
(iii) declare and pay cash dividends to LCN in
an amount not to exceed the amount necessary to enable
LIN to repurchase (A) LIN employee common stock and
options in an aggregate amount not exceeding, in any
fiscal year of LIN, 1/2 of 1% of the then issued and
outstanding LIN Shares and in an aggregate amount not
exceeding, from the date hereof, 1% of such LIN Shares
and (B) LIN Shares resulting from the application of
laws and regulations governing foreign ownership in an
aggregate amount not to exceed $100,000,000;
(iv) beginning with the fiscal year ended
December 31, 1995, declare and pay cash dividends to
LCN in an amount sufficient to enable LCN to fund
dividends actually paid by LCH with respect to the LCH
Preferred Stock in accordance with the terms thereof
from (x) cumulative Excess Cash Flow for the period
from the date of the initial Borrowing through the
fiscal year ended December 31, 1994 and (y) 50% of all
Excess Cash Flow for 1995 and each succeeding fiscal
year of the Borrower; and
(v) declare and pay dividends to the extent such
dividends are applied to the acquisition of the LCH
Assets as permitted by Section 5.02(e)(iii);
provided that (A) with respect to dividends or other
distributions of cash, such dividends may not be paid with
the proceeds of Indebtedness, (B) immediately after giving
effect to each such dividend, purchase, repurchase,
redemption or distribution, no event shall have occurred and
be continuing that constitutes a Default, (C) with respect
to purchases, repurchases or redemptions, such purchases,
repurchases or redemptions are made at a price that does not
exceed the then existing market price, subject, however, to
clause (D) below and (D) with respect to repurchases to be
made pursuant to employee severance agreements in effect on
August 1, 1990 covering in the aggregate not more than
75,000 LIN Shares, such repurchases are made at a price not
to exceed the purchase price set forth in such severance
agreements.
(g) Change in Nature of Business. Permit any of the
Borrower's Subsidiaries or any Principal Cellular
Partnership to engage in any business other than the
Cellular Business and any other business owned by one of the
Borrower's Subsidiaries on the date hereof or acquired
incidental to the acquisition of Cellular Businesses;
provided that the foregoing restriction shall not prohibit
the Broadcast Borrower from becoming one of the Borrower's
Subsidiaries with the consent of the Required Lenders.
Notwithstanding the foregoing authorization to acquire
incidental businesses, the Borrower, each of the Borrower's
Subsidiaries and each Principal Cellular Partnership shall
remain at all times primarily engaged in the business of
owning and operating Cellular Businesses.
(h) Compliance with ERISA. (i) Terminate, or permit
any ERISA Affiliate to terminate, any Plan so as to result
in any material liability of the Borrower and its ERISA
Affiliates as a whole to the PBGC or (ii) permit to continue
unremedied any Reportable Event (as defined in Title IV of
ERISA), or any other event or condition, that presents a
material risk of such a termination by the PBGC of any Plan.
(i) Plan Amendments. Amend, modify or change in any
manner, or permit any of the Borrower's Subsidiaries to
amend, modify or change in any manner, any Plan,
Multiemployer Plan or Welfare Plan sponsored, maintained or
contributed to by the Borrower or the Borrower's
Subsidiaries if such amendment, modification or change,
together with all other such amendments, modifications and
changes, would result in a material increase in the costs
and expenses in respect of such Plans, Multiemployer Plans
and Welfare Plans of the Borrower and its Subsidiaries taken
as a whole.
(j) Accounting Changes. Make or permit, or permit any
of the Borrower's Subsidiaries or any Principal Cellular
Partnership to make or permit, any significant change in
accounting policies or reporting practices, except as
required or permitted by GAAP.
(k) Prepayments, Amendments, Etc. of Debt.
(i) Prepay, redeem, purchase, defease or otherwise satisfy
prior to the scheduled maturity thereof in any manner any
Indebtedness of the Borrower or permit any of the Borrower's
Subsidiaries or any Principal Cellular Partnership to do any
of the foregoing, other than (A) prepayments with the
proceeds of refinancing thereof on terms no less favorable
to the Lenders and the Borrower than such Indebtedness of
the Borrower and having a weighted average life to maturity
at least equal to the then remaining weighted average life
of such Indebtedness of the Borrower, (B) prepayments of the
1990 Credit Agreement and (C) prepayments of the Facilities,
(ii) make, or permit any of its Subsidiaries or any
Principal Cellular Partnership to make, any payment in
violation of any subordination terms of any Subordinated
Debt or (iii) amend, modify or change in any manner any term
or condition of any Indebtedness of the Borrower if such
amendment would be adverse to the Lenders.
(l) Amendments, Etc. Amend, modify, or change in any
manner or permit any of the Borrower's Subsidiaries or any
Principal Cellular Partnership to amend, modify or change in
any manner any term or condition of, give any consent,
waiver or approval under or waive any default under or
breach of any term or condition of its or such Subsidiary's
charter or bylaws or such Principal Cellular Partnership's
Existing Partnership Agreement or any Material Agreement,
except amendments, modifications and waivers that (i) with
respect to the Existing Partnership Agreements, do not
reduce the partnership interest, voting rights, right to
receive distributions or any other material right of the
Borrower or any of its Subsidiaries and (ii) would not have
a material adverse effect on (A) the business, condition
(financial or otherwise), operations, properties or
prospects of the Borrower, the New York Partnership, the Los
Angeles Partnership or any other Material Entity, (B) the
rights and remedies of the Agents or the Lenders under this
Agreement or (C) the ability of the Borrower to perform its
obligations under this Agreement.
(m) Negative Pledge. Enter into or suffer to exist
any agreement prohibiting the creation or assumption of any
Lien upon any of its property or assets (including, without
limitation, any agreement requiring that an equal and
ratable Lien be granted to a lender or lenders) other than
in favor of the Agents or the Lenders, or permit any of the
Borrower's Subsidiaries or any Principal Cellular
Partnership to enter into or suffer to exist any agreement
prohibiting the creation of Liens upon any of its property
or assets (including, without limitation, any agreement
requiring that an equal and ratable Lien be granted to a
lender or lenders) other than (i) prohibitions against the
creation of Liens contained in the 1990 Loan Documents as in
effect on the date hereof, (ii) Liens in favor of the Agents
or the Lenders, (iii) with respect to such Subsidiary, any
existing prohibitions against the creation of Liens and any
agreement to which such entity is subject on the date it
first becomes one of the Borrower's Subsidiaries, (iv) with
respect to Indebtedness permitted by Section 5.02(b)(ii)(B),
(v) with respect to any Principal Cellular Partnership, any
prohibitions of the creation of Liens set forth in any
agreement listed on Schedule IX hereof and (vi) with respect
to performance bonds, a prohibition of the creation of Liens
that applies solely to the assets to which such performance
bonds relate.
(n) Preferred Stock. Issue or authorize the issuance
of, or permit any of the Borrower's Subsidiaries to issue or
authorize the issuance of, any Preferred Stock of the
Borrower or such Subsidiary, respectively, other than
Preferred Stock of the Borrower issued in connection with an
Investment permitted by Section 5.02(e) or Preferred Stock
of the Borrower that (i) is either not convertible or is
convertible only into common stock of the Borrower, (ii) is
not accorded voting rights, either before or after
conversion or the occurrence of any other event, that would
result in a change of control contemplated by Section
6.01(h), 6.01(i), 6.01(j) or 6.01(k) and (iii) is not
subject to mandatory redemption earlier than 180 days
following the Final Maturity Date.
(o) Service Agreements. Agree to directly or
indirectly pay or become liable to McCaw, LIN or any of
their respective Affiliates (other than the Borrower and any
of the Borrower's wholly owned Subsidiaries) for any sum or
property for fees for corporate, management or other similar
services, or permit any of the Borrower's Subsidiaries or
any Principal Cellular Partnership to do so, provided that
(i) the Borrower may enter into the Approved Services
Agreement with LIN and (ii) any of the Borrower's
Subsidiaries and any Principal Cellular Partnership may
enter into an agreement to pay such fees to a non-wholly
owned Subsidiary of the Borrower if such agreement provides
that, upon the exercise of remedies by any Agent or any
Lender under this Agreement, such agreement may be (x)
transferred to the purchaser of the business or Subsidiary
to which such agreement relates or (y) terminated without
penalty (such determination to be made by such purchaser).
(p) Holding Company Status. In the case of the
Borrower or LIN Cellular Holdings, own directly or acquire
any assets other than (i) shares of capital stock of its
respective Subsidiaries, (ii) Investments in Minority
Entities permitted under the 1990 Loan Documents, (iii)
promissory notes of one of the Borrower's Subsidiaries, a
Principal Cellular Partnership or LIN Satellite or one of
LIN Satellite's wholly owned Subsidiaries that have been
pledged to the 1990 Lenders pursuant to the 1990 Loan
Documents and (iv) with respect to the Borrower, immaterial
amounts of other assets. Without limiting the generality of
the foregoing, neither the Borrower nor LIN Cellular
Holdings shall be a general partner in a partnership.
(q) Minority Entities. Permit any of the Borrower's
Subsidiaries to own, hold, acquire or commit to acquire,
directly or indirectly, any equity or other ownership
interest in any Minority Entity if, after giving effect to
such acquisition, the Attributable Share of the Pops of all
Minority Entities would be greater than ten percent (10%) of
the Attributable Share of all Pops of the Borrower, the
Borrower's Subsidiaries, the Principal Cellular Partnerships
and each Minority Entity.
(r) Deposit Accounts. Maintain or permit any of the
Borrower's Subsidiaries to maintain any deposit accounts
other than the accounts expressly permitted under the 1990
Credit Agreement.
SECTION 5.03. Financial Covenants. So long as any
Advance remains unpaid or any Lender shall have any Commitment
hereunder, the Borrower will, unless the Required Lenders (or,
with respect to the requirements of clause (c) below, the
Supermajority Lenders) shall otherwise consent in writing:
(a) Consolidated Operating Cash Flow to Consolidated
Debt Service Ratio. Cause, on the last day of each fiscal
quarter, the ratio of Consolidated Operating Cash Flow for
the current fiscal quarter and for the fiscal quarter
immediately preceding such fiscal quarter, multiplied by
two, to Consolidated Debt Service to be equal to or greater
than 1.15x.
(b) Consolidated Debt to Consolidated Operating Cash
Flow Ratio. Maintain at all times a ratio of Consolidated
Debt to Consolidated Operating Cash Flow for the two fiscal
quarters set forth in the most recent Compliance Certificate
delivered by the Borrower to the Administrative Agent,
multiplied by two, (i) for the period from the date of the
Initial Borrowing to March 31, 1995, not greater than 6.5x
and (ii) at all times thereafter, not greater than 6.0x.
(c) Consolidated Debt. Not permit, at any time,
Consolidated Debt to exceed $2,000,000,000.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
following events ("Events of Default") shall occur and be
continuing:
(a) The Borrower shall fail to pay any principal of,
or interest on, any Advance, or shall fail to make any other
payment hereunder, in each case when the same becomes due
and payable; or
(b) Any representation or warranty made by the
Borrower (or any of its officers) under or in connection
with this Agreement or any certificate or financial
information delivered pursuant thereto shall prove to have
been incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe
any term, covenant or agreement contained in Section
5.01(d), (i), (j)(i) or 5.02(a), (b), (c), (d), (e), (f),
(g), (h), (i), (k), (l), (m), (n), (o) or (p) or 5.03; or
(ii) the Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement if
such failure shall remain unremedied for ten days after
written notice thereof shall have been given to the Borrower
by any Agent or any Lender; or
(d) Any LIN Party, any of such LIN Party's
Subsidiaries or any Principal Cellular Partnership shall
fail to pay any principal of, premium or interest on, or
other amounts payable in respect of, Indebtedness with an
aggregate outstanding principal amount of $25,000,000 or
more (but excluding Indebtedness outstanding hereunder) of
such LIN Party, such Subsidiary or such Principal Cellular
Partnership (as the case may be), in each case when the same
becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument
relating to such Indebtedness; or any other event shall
occur or condition shall exist under any agreement or
instrument relating to any such Indebtedness and shall
continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of
such failure, event or condition is to accelerate, or to
permit the acceleration of, the maturity of such
Indebtedness or any such Indebtedness shall be declared to
be due and payable or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or
redemption) purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Indebtedness shall be
required to be made, in each case prior to the stated
maturity thereof; or
(e) McCaw, MMM Holdings, LIN, the Borrower, any of
LIN's Subsidiaries or any Principal Cellular Partnership
shall generally not pay its debts as such debts become due,
or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted
by or against McCaw, MMM Holdings, LIN, the Borrower, any of
LIN's Subsidiaries or any Principal Cellular Partnership
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its
debt under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver,
trustee, or other similar official for it or for any
substantial part of its property and, in the case of any
proceeding instituted against it (but not instituted by it)
that is being diligently contested by in good faith, such
proceeding shall remain undismissed or unstayed for a period
of 45 days; or McCaw, MMM Holdings, LIN, the Borrower, any
of LIN's Subsidiaries or any Principal Cellular Partnership
shall take any corporate or partnership action (as the case
may be) to authorize any of the actions set forth above in
this subsection (e); provided that, in the case of any of
the foregoing events with respect to McCaw, MMM Holdings or
any of LIN's Subsidiaries (other than LCH, any LIN Party or
any of such LIN Party's Subsidiaries), the Required Lenders
shall have determined that such event described above is
reasonably likely to have a material adverse effect on (i)
the Borrower, the New York Partnership, the Los Angeles
Partnership or any other Material Entity, (ii) the ability
of the Borrower to perform its obligations under this
Agreement or (iii) the rights and remedies of the Agents or
the Lenders under this Agreement; or
(f) Any judgments or orders for the payment of money
in the aggregate equal to or in excess of $5,000,000 shall
be rendered against any LIN Party, any of such LIN Party's
Subsidiaries or any Principal Cellular Partnership and there
shall be any period of 60 consecutive days during which a
stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(g) Any nonmonetary judgment or order shall be
rendered against any LIN Party, any of such LIN Party's
Subsidiaries or any Principal Cellular Partnership that
could have a material adverse effect on (i) the business,
condition (financial or otherwise), operations, properties
or prospects of the Borrower, the New York Partnership, the
Los Angeles Partnership or any other Material Entity, (ii)
the ability of the Borrower to perform its obligations under
this Agreement or (iii) the rights and remedies of the
Agents or the Lenders under this Agreement, and there shall
be any period of ten consecutive days during which a stay of
enforcement of such judgment or order, by reason of pending
appeal or otherwise, shall not be in effect; or
(h) At any time before the consummation of the Merger,
Craig O. McCaw or a Designated Party, and at any time after
the consummation of the Merger, AT&T, shall fail to have the
right to cause the election of his or its nominees to a
majority of the directorships of the Board of Directors of
McCaw; or
(i) (i) At any time before the consummation of the
Merger, the McCaw Family shall at any time for any reason
cease to be the legal and beneficial owner of at least
20,000,000 Class B Shares (or such other number of Class B
Shares as may be determined after adjustment to give effect
to increases or decreases in the number of Class B Shares,
including, without limitation, increases or decreases
resulting from stock dividends, stock splits,
reclassifications or combinations effected with respect to
such Class B Shares, such adjustments to be calculated in a
manner approved by the Managing Agents) or (ii) at any time
after the consummation of the Merger, AT&T shall for any
reason cease to have Economic Ownership of Voting Stock
representing in the aggregate at least 51% of the combined
voting power of all Voting Stock of McCaw; or
(j) (i) At any time before the consummation of the
Merger, McCaw shall fail to have the right to cause the
election of its nominees to a majority of the directorships
of the Board of Directors of LIN or (ii) at any time after
the consummation of the Merger, McCaw or AT&T shall fail to
have the right to cause the election of its nominees to a
majority of the directorships of the Board of Directors of
LIN; or
(k) LIN shall fail to own directly or indirectly at
least a majority of the issued and outstanding capital stock
of the Borrower; or
(l) Any ERISA Event shall have occurred with respect
to a Plan of any LIN Party and, 30 days after notice thereof
shall have been given to such LIN Party by the
Administrative Agent, (i) such ERISA Event shall still exist
and (ii) the sum (determined as of the date of occurrence of
such ERISA Event) of the Insufficiency of such Plan and the
Insufficiency of any and all other Plans of any LIN Party
with respect to which an ERISA Event shall have occurred and
then exist (or, in the case of a Plan with respect to which
a termination described in clauses (c) through (f) of the
definition of ERISA Event shall have occurred and then
exist, the liability related thereto is equal to or greater
than $25,000,000; or
(m) Any LIN Party or any of its ERISA Affiliates shall
have been notified by the sponsor of a Multiemployer Plan
that it has incurred Withdrawal Liability to such
Multiemployer Plan in an amount that, when aggregated with
all other amounts required to be paid to MultiEmployer Plans
by the LIN Parties and their ERISA Affiliates as Withdrawal
Liabilities (determined as of the date of such
notification), exceeds $25,000,000 and any part of such
Withdrawal Liability shall not have been paid when the same
becomes due and payable; or
(n) Any LIN Party or any of its ERISA Affiliates shall
have been notified by the sponsor of a Multiemployer Plan
that such Multiemployer Plan is in reorganization or is
being terminated, within the meaning of Title IV of ERISA,
if as a result of such reorganization or termination the
aggregate annual contributions of the LIN Parties and their
ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer
Plans for the plan year of each such Multiemployer Plan
immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding
$25,000,000; or
(o) Any LIN Party or any of its ERISA Affiliates shall
have committed a failure described in Section 302(f)(1) of
ERISA and the amount determined under Section 302(f)(3) of
ERISA is equal to or greater than $25,000,000; or
(p) There shall occur any material adverse change in
the business, condition (financial or otherwise),
operations, properties or prospects of the Borrower or the
New York Partnership, the Los Angeles Partnership or any
other Material Entity; or
(q) The Borrower, any of the Borrower's Subsidiaries
or any Principal Cellular Partnership or, with respect to
clauses (iv) and (v) below, LIN or LCN shall become subject
to restrictions (whether through a covenant, a provision
entitling any party to accelerate the maturity of any
obligation or otherwise) under (x) in the case of the
Borrower, any of the Borrower's Subsidiaries or any
Principal Cellular Partnership, an agreement related to any
Indebtedness of, or with shareholders of, McCaw, LIN or any
of their respective Subsidiaries (other than the Borrower or
any of its Subsidiaries) (any such agreement being a
"Borrower Restrictive Agreement") or (y) in the case of LIN
or LCN, an agreement related to any Indebtedness of, or with
shareholders of, McCaw or MMM Holdings, Inc. (any such
agreement being a "Parent Restrictive Agreement"; all such
Agreements, together with the Borrower Restrictive
Agreements, being the "Restrictive Agreements"), unless in
any such case such Restrictive Agreements permits (or does
not prohibit) the Borrower, the Borrower's Subsidiaries and
the Principal Cellular Partnerships and, with respect to
clauses (iv) and (v) below, LIN and LCN, without the need to
obtain the consent of any party to any such Restrictive
Agreement:
(i) to prepay, redeem, repurchase, defease, extend,
renew or refinance its Indebtedness and to amend,
modify or waive any provision of any agreement related
to such Indebtedness (including, without limitation,
amendments that would increase the rate of interest
payable under such agreement or require the payment of
fees or other amounts in connection therewith);
(ii) to pay dividends to the Borrower;
(iii) to incur Indebtedness for working capital and
other similar corporate purposes, including, without
limitation, for capital expenditures, operations and
debt service and costs related thereto (such
Indebtedness being the "Additional Working Capital
Debt");
(iv) to grant Liens on its assets in connection
with any Additional Working Capital Debt or the
Borrower's, any of the Borrower's Subsidiaries' or any
Principal Cellular Partnership's Indebtedness,
including, without limitation, the Facilities and any
extensions, renewals or refinancings thereof;
(v) to provide guarantees or other similar
undertakings (including, without limitation,
undertakings of the types referred to in clauses (h) or
(i) of the definition of "Indebtedness") with respect
to any Additional Working Capital Debt or the
Borrower's, any of the Borrower's Subsidiaries' or any
Principal Cellular Partnership's Indebtedness,
including, without limitation, the facilities and any
extensions, renewals or refinancings thereof; and
(vi) to sell, lease, transfer or otherwise dispose
of any assets to repay the Borrower's, such
Subsidiary's or such Principal Cellular Partnership's
Indebtedness or to satisfy such Person's working
capital and other cash needs; provided that a Borrower
Restrictive Agreement may require that such Person
receive an opinion of an investment banker of national
reputation that the amount received upon any such
disposition of stock or capital assets represents fair
value under the circumstances; or
(r) Prior to January 1, 1994, the Borrower shall cease
to be a member of an "affiliated group" (within the meaning
of Section 1504(a)(i) of the Code) of which LIN is the
common parent unless at the time the Borrower ceases to be a
member of such group, the Borrower receives a cash capital
contribution in an amount equal to the present value of the
expected net benefit, if any, of the remaining net operating
losses of LIN that have been allocated to the Borrower under
the Tax Sharing Agreement, such value to be determined in a
manner approved by the Managing Agents; or
(s) LIN shall fail to make any payment under the Tax
Sharing Agreement when the same becomes due and payable, or
LIN shall fail to perform or observe any other term,
covenant or agreement contained in the Tax Sharing Agreement
if such failure shall remain unremedied for ten days after
written notice thereof shall have been given to LIN by any
Agent or any Lender;
then, and in any such event, the Administrative Agent (i) shall
at the request, or may with the consent, of the Required Lenders,
by notice to the Borrower, declare the obligation of each Lender
to make Advances to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrower,
declare the Advances and all interest thereon and all amounts
hereunder to be forthwith due and payable, whereupon the
Advances, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby
expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with
respect to any LIN Party under the Federal Bankruptcy Code, (A)
the obligation of each Lender to make Advances shall
automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be
due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender
hereby appoints and authorizes each Agent to take such action as
agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to such Agent by the terms
hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly
provided for by this Agreement (including, without limitation,
enforcement or collection of the Indebtedness resulting from the
Advances), none of the Agents shall be required to exercise any
discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders;
provided, however, that none of the Agents shall be required to
take any action that exposes any Agent to personal liability or
that is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Lender prompt notice
of each notice given to it by the Borrower pursuant to the terms
of this Agreement.
SECTION 7.02. Agents' Reliance, Etc. Neither the
Agents nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or omitted to be
taken by it or them, under or in connection with this Agreement,
except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the
foregoing, each Agent: (i) may treat the Lender that made any
Advance as the holder of the Indebtedness resulting therefrom
until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by such Lender, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for any
LIN Party), independent public accountants and other experts
selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no
warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or
representations made in or in connection with this Agreement;
(iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or to
inspect the property (including the books and records) of any LIN
Party; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon
any notice, consent, certificate or other instrument or writing
(which may be by telegram, telecopy, or telex) believed by it to
be genuine and signed or sent by the proper party or parties.
SECTION 7.03. TD (Texas), Toronto-Dominion and
Scotiabank and Affiliates. With respect to its Commitments and
the Advances made by it, each of TD (Texas), Toronto-Dominion and
Scotiabank shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though
it were not a Managing Agent or the Administrative Agent (as the
case may be); and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include each of TD (Texas),
Toronto-Dominion and Scotiabank in its individual capacity. Each
of TD (Texas), Toronto-Dominion and Scotiabank and its Affiliates
may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and
generally engage in any kind of business with, any LIN Party, any
of such LIN Party's Subsidiaries and any Person who may do
business with or own securities of any LIN Party or any such
Subsidiary, all as if each of TD (Texas), Toronto-Dominion and
Scotiabank were not a Managing Agent or the Administrative Agent
(as the case may be) and without any duty to account therefor to
the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon
the Agents or any other Lender and based on the financial
statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without
reliance upon the Agents or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to
indemnify each Agent (to the extent not promptly reimbursed by
the Borrower pursuant to another provision of this Agreement),
ratably according to the respective principal amounts of the
Advances then owing to each such Lender (or if no Advances are at
the time outstanding or if any Advances are then owing to Persons
that are not Lenders, ratably according to the respective amounts
of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by or asserted
against such Agent (as the case may be) in any way relating to or
arising out of this Agreement or any action taken or omitted by
such Agent under this Agreement; provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse each Agent promptly upon demand for
its ratable share of any costs and expenses payable by the
Borrower under Section 8.04 (other than any costs and expenses
payable to the financial institution acting as such Agent in its
capacity as a Lender), to the extent that such Agent is not
promptly reimbursed for such costs and expenses by the Borrower.
SECTION 7.06. Successor Administrative Agent;
Successor Managing Agents. (a) The Administrative Agent may
resign as to either or both of the Facilities at any time by
giving written notice thereof to each of the Lenders and the
Borrower and may be removed as to both of the Facilities at any
time with or without cause by the Required Lenders. Upon any
such resignation or removal, the Required Lenders shall have the
right to appoint a successor Administrative Agent (as to such of
the Facilities as to which the Administrative Agent has resigned
or been removed). If no successor Administrative Agent shall
have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be
a commercial bank organized under the laws of the United States
or of any state thereof and having a combined capital and surplus
of at least $100,000,000. Upon the acceptance of any appointment
as Administrative Agent hereunder by a successor Administrative
Agent as to both of the Facilities, such successor
Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, discretion, privileges and duties of
the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and
obligations under this Agreement. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
Administrative Agent as to one of the Facilities, such successor
Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, discretion, privileges and duties of
the retiring Administrative Agent as to such Facility, other
than, with respect to funds transfers and other similar aspects
of the administration of the Borrowings under such Facility and
payments by Borrower in respect of such Facility, and the
retiring Administrative Agent shall be discharged from its
duties and obligations under this Agreement as to such Facility,
other than as aforesaid. After any retiring Administrative
Agent's resignation or removal hereunder as Administrative Agent
as to both of the Facilities, the provisions of this Article VII
shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent as to either
Facility under this Agreement.
(b) Any Managing Agent may resign as to either or both
of the Facilities at any time by giving written notice thereof to
each of the Lenders and the Borrower and may be removed as to
both of the Facilities at any time with or without cause by the
Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor
Managing Agent (as to such of the Facilities as to which the
Managing Agent has resigned or been removed). If, at any time, a
Managing Agent has been removed or has delivered a notice of
resignation and has not been replaced within 30 days after the
first date on which such circumstance exists, then the remaining
Managing Agent may, on behalf of the Lenders, appoint a successor
Managing Agent. Each such successor Managing Agent shall be a
commercial bank organized under the laws of the United States or
of any state thereof and having a combined capital and surplus of
at least $100,000,000. Upon the acceptance of any appointment as
a Managing Agent hereunder by a successor Managing Agent as to
both of the Facilities, such successor Managing Agent shall
thereupon succeed to and become vested with both the rights,
powers, discretion, privileges and duties of the remaining
Managing Agent and the retiring Managing Agent shall be
discharged from its duties and obligations under this Agreement.
Upon the acceptance of any appointment as a Managing Agent
hereunder by a successor Managing Agent as to one of the
Facilities, such successor Managing Agent shall thereupon succeed
to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Managing Agent as to such
Facility, and the retiring Managing Agent shall be discharged
from its duties and obligations under this Agreement as to such
Facility. After any retiring Managing Agent's resignation or
removal hereunder as a Managing Agent as to both of the
Facilities, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it
while it was a Managing Agent as to either Facility under this
Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver
of any provision of this Agreement, nor consent to any departure
by the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Lenders,
and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given;
provided, however, that (a) no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders, do any of
the following: (i) waive any of the conditions set forth in
Section 3.01 or, in the case of the initial Borrowing, Section
3.02 or 3.03, (ii) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Advances, or the
number of Lenders that shall be required for the Lenders or any
of them to take action hereunder, including, without limitation,
any action to be taken by the Required Lenders or the
Supermajority Lenders under Section 5.03 or (iii) amend this
Section 8.01, and (b) no amendment, waiver or consent shall,
unless in writing and signed by the Required Lenders and each
Lender that has a Commitment under the Facility affected thereby,
(i) increase the Commitments of such Lender or subject such
Lender to any additional obligations, (ii) reduce the principal
of, or interest on, the Advances payable to such Lender or any
fees or other amounts payable hereunder to such Lender, (iii)
postpone any date fixed for any payment of principal of, or
interest on, the Advances payable hereunder to such Lender or any
fees or other amounts payable hereunder to such Lender or (iv)
change the order of application of any prepayment set forth in
Section 2.07 or reduction of Commitments set forth in
Section 2.04 in any manner that materially affects such Lender;
provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent or each
Managing Agent (as the case may be) in addition to the Lenders
required above to take such action, affect the rights or duties
of the Administrative Agent or the Managing Agents (as the case
may be) under this Agreement. Notwithstanding the foregoing, no
amendment of any provision of this Agreement shall, unless in
writing and signed by the Borrower in addition to the Lenders and
Agents required above to take such action, affect the rights or
the duties of the Borrower under this Agreement.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telegraphic, telecopy or telex communications) and
telegraphed, telecopied, telexed, mailed or delivered, if to the
Borrower, at its address at 5400 Carillon Point, Kirkland,
Washington 98033, Attention: Donald Guthrie, Senior Vice
President, Finance, telecopy number: (206) 828-1900, with a copy
to LIN Cellular Network, Inc., 1150 Connecticut Avenue, N.W. 4th
Floor, Washington, D.C. 20036, Attention: Andrew A. Quartner,
Vice President-Law, telecopy number: (212) 223-9095; if to any
Lender that is a signatory hereto, at its Domestic Lending Office
specified opposite its name in Schedule I hereto; if to any other
Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender;
if to the Administrative Agent, at its address at 909 Fannin,
Suite 1700,
Houston, Texas 77010, Attention: Manager, Agency, with a copy to
The Toronto-Dominion Bank, 31 West 52nd Street, New York, New
York 10019, Attention: Managing Director, Communications
Finance; and if to any Managing Agent, at its Domestic Lending
Office specified opposite its name in Schedule I hereto or, as to
the Borrower or the Administrative Agent, at such other address
as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address
as shall be designated by such party in a written notice to the
Borrower and the Administrative Agent. All such notices and
communications shall, when telegraphed, telecopied or telexed, be
effective when delivered to the telegraph company, transmitted by
telecopier, confirmed by telex answerback or shall be effective
five days after being deposited in the mails, respectively,
except that notices and communications to the Administrative
Agent pursuant to Article II, III or VII and any Compliance
Certificate shall not be effective until received by the
Administrative Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the
part of any Lender or the Agents to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such
right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs; Expenses. (a) The Borrower
agrees to pay on demand: (i) all costs and expenses of the
Agents in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement,
including, without limitation, (A) all due diligence,
transportation, computer, duplication, appraisal, audit,
consultant, search, filing and recording fees and expenses and
(B) the reasonable fees and expenses of counsel for the Agents
with respect thereto and with respect to advising any of the
Agents as to their respective rights and responsibilities, or the
perfection, protection or preservation of rights or interests,
under this Agreement and with respect to negotiations with the
Borrower regarding any Default or any events or circumstances
that may give rise to a Default and (ii) all costs and expenses
of the Agents and the Lenders in connection with the enforcement
of this Agreement whether in any action, suit or litigation, any
bankruptcy, insolvency or other similar proceeding affecting
creditors' rights generally or otherwise (including, without
limitation, the reasonable fees and expenses of counsel for any
Agent or any Lender with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless
each Agent and each Lender and each of their respective
Affiliates and their respective officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and
against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and
expenses of counsel for the Lenders as a group; provided that any
Lender or group of Lenders that has determined in good faith that
due to potential conflicts of interest such Lender or group of
Lenders cannot be adequately represented by such counsel may
retain
separate counsel to represent such Lender or group of Lenders,
such representation to be limited, to the extent practicable, to
the issues to which such potential conflict relates) that may be
incurred by or asserted or awarded against any Indemnified Party,
in each case arising out of or in connection with or by reason
of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related
to or in connection with any acquisition or proposed acquisition
by the Borrower or any of the Borrower's Subsidiaries or
Affiliates of all or any part of the stock or substantially all
the assets of any Person (including, without limitation, the
Acquisitions) and any of the other transactions contemplated
hereby, whether or not an Indemnified Party is a party thereto
and whether or not the transactions contemplated hereby are
consummated, except to the extent such claim, damage, loss,
liability or expense is found in a final, nonappealable judgment
by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct.
(c) If any payment of principal of, or Conversion of,
any LIBO Rate Advance or Adjusted CD Rate Advance is made by the
Borrower to or for the account of a Lender other than on the last
day of the Interest Period for such Advance, as a result of a
payment pursuant to Section 2.07, acceleration of the maturity of
the Advances pursuant to Section 6.01 or for any other reason, or
by the Borrower or an Eligible Assignee to a Lender other than on
the last day of the Interest Period for such Advance if a Lender
is required to assign its rights and obligations under this
Agreement pursuant to Section 8.07 as a result of a demand by the
Borrower pursuant to Section 8.07(a), the Borrower shall, upon
demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the
account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired
by any Lender to fund or maintain such Advance.
(d) If the Borrower fails to pay when due any costs,
expenses or other amounts payable by it under this Agreement,
including, without limitation, fees and expenses of counsel and
indemnities, such amount may be paid on behalf of the Borrower by
any Agent or any Lender, in its sole discretion. Immediately
upon the making of each such payment, such Agent or such Lender
shall be deemed to have sold and transferred to each other
Lender, and each other Lender shall be deemed to have purchased
and received from such Agent or such Lender, in each case
irrevocably and without any further action by any party, an
undivided interest and participation in such payment and the
obligations of the Borrower under this Agreement in respect
thereof in an amount equal to the product of (x) a fraction the
numerator of which is the amount of the Commitments of such
Lender and the denominator of which is the sum of the Revolving
Credit Facility and the Term Facility times (y) the amount of
such payment. Any such payment by such Agent or any Lender shall
constitute for all purposes of this Agreement the making by such
Agent or such Lender of an Advance, which shall be a Base Rate
Advance, in the amount of such payment (but without any
requirement for compliance with the conditions set forth in
Article III). In the event that such payment is not reimbursed
by the Borrower by 11:00 A.M. (New York City time) on the first
Business Day after such payment, such Agent or such Lender shall
promptly notify the Agent and each other Lender. Each such
Lender shall, notwithstanding the then unused amount of its
Commitments or any termination thereof, on the first Business Day
following such notification, make an Advance, which shall be a
Base Rate Advance, in an amount equal to the amount of its
participation in such payment for application to reimburse such
Agent or Lender (but without any requirement for compliance with
the applicable conditions set forth in Article III) and shall
make available for the account of its Applicable Lending Office
to the Administrative Agent for its own account or for the
account of such other Agent or such Lender, by deposit to the
Administrative Agent's Account, in same day funds, the amount of
such Advance. If and to the extent that any Lender shall not
have so made the amount of such Advance available to the
Administrative Agent, such Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such
amount together with interest thereon, for each day from the date
of demand by the Administrative Agent or such Agent or such
Lender until the date such amount is paid to the Administrative
Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.06(d) to Base Rate
Advances and (ii) in the case of such Agent or such Lender, the
Federal Funds Rate. If such Lender shall pay to the
Administrative Agent such amount, such amount so paid shall
constitute such Lender's Advance for purposes of this Agreement.
SECTION 8.05. Right of Set-off. Upon (a) the
occurrence and during the continuance of any Event of Default and
(b) the making of the request or the granting of the consent
specified by Section 6.01 to authorize the Administrative Agent
to declare the Advances due and payable pursuant to the
provisions of Section 6.01, each Lender is hereby authorized at
any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by such Lender or any
branch, agency, Subsidiary or Affiliate of such Lender to or for
the credit or the account of the Borrower against any and all of
the obligations of the Borrower now or hereafter existing under
or in respect of this Agreement, irrespective of whether such
Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and
application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender may
have.
SECTION 8.06. Binding Effect; Survival. This
Agreement shall become effective when it shall have been executed
by the Borrower and the Administrative Agent and when the
Administrative Agent shall have been notified by each Lender that
such Lender has executed it and thereafter shall be binding upon
and inure to the benefit of the Borrower, the Agents and each
Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written
consent of the Lenders. Without prejudice to the survival of the
other agreements of the Borrower hereunder, the agreements of the
Borrower contained in Sections 2.10, 2.12 and 8.04 shall survive
the payment in full of the obligations of the Borrower hereunder.
SECTION 8.07. Assignments and Participations.
(a) Each Lender may, and, if demanded by the Borrower (following
a demand by such Lender pursuant to Section 2.10 or 2.12, or
notice by such Lender pursuant to Section 2.02(b)(ii) or within
60 days after such Lender's failure to grant a consent or waiver,
or to execute an amendment, which consent, waiver or amendment
was requested by the Borrower in writing) upon at least ten
Business Days' notice to such Lender and the Administrative
Agent, shall promptly, assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its
Commitments and the Advances owing to it); provided, however,
that (i) each such Assignment shall be of a uniform, and not a
varying, percentage of all rights and obligations under or in
respect of one or more of the Facilities, (ii) except in the case
of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's
rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event
be less than $5,000,000 unless the Borrower shall otherwise
consent in writing, (iii) with respect to any such assignment
(other than an assignment made as a result of a demand by the
Borrower pursuant to this Section 8.07(a)) by a Lender that is an
original signatory hereto, such Lender shall, unless the Borrower
shall otherwise consent in writing, retain a Commitment under
both Facilities that is equal to or greater than $5,000,000, (iv)
each such assignment made as a result of a demand by the Borrower
pursuant to this Section 8.07(a): (A) shall be arranged by the
Borrower after consultation with the Administrative Agent, (B)
shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations
of the assigning Lender under this Agreement, except that the
provisions of Sections 2.10, 2.12 and 8.04 shall inure to its
benefit as to any actions taken or omitted to be taken by it
while it was a Lender under this Agreement, and (C) if demanded
by the Borrower due to the failure of such Lender to grant a
consent or waiver or to execute an amendment requested by the
Borrower, which consent, waiver or amendment has not been
approved by the Required Lenders, all the rights and obligations
of each other Lender that has failed to grant such consent or
waiver or execute such amendment shall have been assigned to one
or more Lenders and/or Eligible Assignees who shall have granted
such consent or waiver or executed such amendment (or, in the
case of an Eligible Assignee that is not a Lender at such time,
shall have agreed to grant such consent or waiver or to execute
such amendment), (v) no Lender shall be obligated to make any
such assignment as a result of a demand by the Borrower pursuant
to this Section 8.07(a) unless and until such Lender shall have
received one or more payments from either the Borrower or one or
more Eligible Assignees in an aggregate amount at least equal to
the aggregate outstanding principal amount of the Advances owing
to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts
payable to such Lender under the Loan Documents and (vi) the
parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a
processing and recordation fee of $2,500.00 (which, (a) in the
case of any assignment made as a result of a demand by the
Borrower under this Section 8.07(a), shall be payable by the
Borrower and (b) shall not be payable in the case of any
assignment by a Lender to an Affiliate thereof). Upon such
execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance,
(A) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned
to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder and (B) the Lender assignor
thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of any LIN Party, any of
Subsidiary of such LIN Party or any Principal Cellular
Partnership or the performance or observance by any LIN Party or
any of Subsidiary of such LIN Party's of any of its obligations
under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it
has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee agrees that it
will, independently and without reliance upon the Agents, such
assigning Lender or any other Lender and based on such documents
and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it
is an Eligible Assignee; (vi) such assignee appoints and
authorizes the Agents to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement
as are delegated to the Agents by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its
address referred to in Section 8.02 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitment under each Facility of, and principal amount of the
Advances owing under each Facility to, each Lender from time to
time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error,
and the Borrower, the Agents and the Lenders may treat each
Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall
be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that
it is an Eligible Assignee, the Administrative Agent shall, if
such Assignment and Acceptance has been completed and is in the
form of Exhibit A hereto with such immaterial changes as are
acceptable to the Administrative Agent, (i) accept such
Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to
the Borrower.
(e) Each Lender may sell participations to one or more
financial institutions or other entities (other than any entity
that owns or operates a Cellular Business or any Affiliate
thereof) in or to all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a
portion of its Commitments and the Advances owing to it);
provided, however, that (i) such Lender's obligations under this
Agreement (including, without limitation, its Commitments) shall
remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of
such obligations, (iii) the Borrower, the Agents and the other
Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations
under this Agreement, (iv) no participant shall have any right to
approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Loan Party
therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the
Advances, or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, postpone any
date fixed for any payment of principal of, or interest on, the
Advances or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, and (v) each
participant shall represent to such Lender that it is not an
entity that owns or operates a Cellular Business or an Affiliate
thereof.
(f) Any Lender may, in connection with any assignment
or participation or proposed assignment or participation pursuant
to this Section 8.07, disclose to the assignee or participant or
proposed assignee or participant any Confidential Information;
provided, however, that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall
agree to preserve the confidentiality of such Confidential
Information as set forth in Section 8.10.
(g) Nothwithstanding any other provision set forth in
this Agreement, any Lender may at any time create a security
interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it) in
favor of any Federal Reserve Bank in accordance with Regulation A
of the Board of Governors of the Federal Reserve System.
SECTION 8.08. Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 8.09. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 8.10. Confidentiality. The Agents and the
Lenders agree that they will not disclose Confidential
Information (as defined below) without the prior consent of the
Borrower (other than to their directors, employees, auditors or
counsel); provided that any Agent and any Lender is authorized to
make such disclosure of Confidential Information without any
consent of the Borrower (a) as may be required by law (such as
pursuant to any subpoena or civil investigative demand) and as
may be requested or required by any state or federal authority,
examiner, regulatory body or agency having jurisdiction over any
Agent or any Lender and (b) as permitted by Section 8.07(f). Any
Agent or Lender authorized to disclose Confidential Information
pursuant to the preceding proviso shall use its best efforts to
give the Borrower prior notice of such disclosure (other than
with respect to any disclosure requested or required by any state
or federal authority, examiner, regulatory body or agency having
jurisdiction over such Agent or Lender). The term "Confidential
Information" means any information delivered by or on behalf of
the Borrower in connection with this Agreement (whether before or
after the date hereof), including, without limitation, Section
5.01(j), that relates to the business, operations or financial
condition of LIN or any of LIN's Subsidiaries or any Principal
Cellular Partnership or any competitor of LIN or any of LIN's
Subsidiaries or any Principal Cellular Partnership or a proposed
acquisition by the Borrower, any of the Borrower's Subsidiaries
or any Principal Cellular Partnership, other than information
(a) that is, or generally becomes, available to the public, (b)
that was available to any Agent or any Lender on a
nonconfidential basis prior to its disclosure to such Agent or
such Lender (as the case may be) by the Borrower or any Affiliate
or (c) that becomes available to any Agent or any Lender from a
Person or other source that is not, to the best knowledge of such
Agent or such Lender (as the case may be), otherwise bound by a
confidentiality obligation to the Borrower.
SECTION 8.11. Waiver of Jury Trial. Each of the
Borrower, the Agents and the Lenders hereby irrevocably waives
all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise)
arising out of or relating to this Agreement, the Advances or the
action of any Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
LIN CELLULAR NETWORK, INC.
By
Title:
Administrative Agent
TORONTO DOMINION (TEXAS), INC.
as Administrative Agent
By
Title:
Managing Agents
THE TORONTO-DOMINION BANK
as Managing Agent
By
Title:
THE BANK OF NOVA SCOTIA
as Managing Agent
By
Title:
Lenders
BANK OF MONTREAL
By________________________________
Title:
THE BANK OF NEW YORK
By
Title:
THE BANK OF NOVA SCOTIA
By
Title:
BARCLAYS BANK PLC
By
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE
By
Title:
DEUTSCHE BANK AG,
LOS ANGELES BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By
Title:
By
Title:
NATIONSBANK OF TEXAS, N.A.
By
Title:
PNC BANK
By
Title:
SOCIETE GENERALE
By
Title:
THE TORONTO-DOMINION BANK
By
Title:
