<PAGE> 1
As filed with the Securities and Exchange Commission on May 12, 2000.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (D) OF THE SECURITIES
EXCHANGE ACT OF 1934.
For the quarterly period ended March 31, 2000.
[ ] 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: 333-54003-06 Commission File Number: 000-25206
------------ ---------
<TABLE>
<CAPTION>
<S> <C>
LIN HOLDINGS CORP. LIN TELEVISION CORPORATION
- ------------------------------------------------------ ------------------------------------------------------
(Exact name of registrant as specified in its charter) (Exact name of registrant as specified in its charter)
</TABLE>
DELAWARE DELAWARE
- ------------------------------- -------------------------------
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
75-2733097 13-3581627
- ------------------------------------ ------------------------------------
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
1 RICHMOND SQUARE, SUITE 230E, PROVIDENCE, RHODE ISLAND 02906
-----------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(401) 454-2880
----------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrants (1) have filed all reports 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 registrants were
required to file such reports), and (2) have been subject to such filing
requirements for the past 90 days.
[X] Yes [ ] No
NOTE:
- -----
10-Q currently presents results for two companies rather than just the parent
company on a fully consolidated basis.
1,000 Shares of LIN Holdings Corp.'s Common Stock, par value $.01 per share, and
1,000 shares of LIN Television Corporation's Common Stock, par value $.01 per
share, were outstanding as of May 12, 2000.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Part I. Financial Information
Item 1. Financial Statements
LIN HOLDINGS CORP.
Condensed Consolidated Balance Sheets 1
Condensed Consolidated Statements of Operations 2
Condensed Consolidated Statements of Cash Flows 3
Notes to Condensed Consolidated Financial Statements 4
LIN TELEVISION CORPORATION
Condensed Consolidated Balance Sheets 8
Condensed Consolidated Statements of Operations 9
Condensed Consolidated Statements of Cash Flows 10
Notes to Condensed Consolidated Financial Statements 11
Item 2. Management's Discussion and Analysis of Results of Operations
And Financial Condition 15
Item 3. Quantitative and Qualitative Disclosures about Market Risk 19
Part II. Other Information
Item 1. Legal Proceedings 20
Item 6. Exhibits and Reports on Form 8-K 20
</TABLE>
<PAGE> 3
PART I: FINANCIAL INFORMATION
ITEM 1: FINANCIAL STATEMENTS
LIN HOLDINGS CORP.
Condensed Consolidated Balance Sheets
(In thousands, except share data)
<TABLE>
<CAPTION>
March 31, 2000 December 31, 1999
-------------- -----------------
ASSETS (Unaudited)
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 11,123 $ 17,699
Accounts receivable, less allowance for doubtful accounts (2000 -
$1,554; 1999 - $1,918) 43,626 55,515
Program rights 15,877 13,601
Other current assets 7,325 6,988
----------- -----------
Total current assets 77,951 93,803
Property and equipment, net 153,184 144,882
Deferred financing costs 40,257 41,553
Investment in joint ventures 64,929 65,771
Investment in Southwest Sports Group, at cost plus accrued interest 50,750 50,000
Program rights 6,078 4,552
Intangible assets, net 1,650,741 1,546,392
Other assets 9,512 5,732
----------- -----------
Total Assets $ 2,053,402 $ 1,952,685
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 6,869 $ 7,477
Program obligations 15,237 13,336
Accrued income taxes 4,719 4,750
Current portion of long-term debt 17,077 15,805
Accrued interest expense 3,747 10,494
Other accruals 15,204 21,895
----------- -----------
Total current liabilities 62,853 73,757
Long-term debt, excluding current portion 968,321 841,821
Deferred income taxes 531,269 524,323
Program obligations 6,630 5,819
Other liabilities 6,919 7,050
----------- -----------
Total liabilities 1,575,992 1,452,770
----------- -----------
Commitments and Contingencies (Note 6)
Stockholders' equity:
Preferred stock, $0.01 par value: No Shares Authorized -- --
Common stock, $0.01 par value: Authorized, issued and outstanding shares;
2000 - 1,000, 1999 - 1,000 -- --
Additional paid-in capital 561,261 561,200
Accumulated deficit (83,851) (61,285)
----------- -----------
Total stockholders' equity 477,410 499,915
----------- -----------
Total liabilities and stockholders' equity $ 2,053,402 $ 1,952,685
=========== ===========
</TABLE>
The accompanying notes are an integral part of the condensed consolidated
financial statements.
1
<PAGE> 4
LIN HOLDINGS CORP.
Condensed Consolidated Statements of Operations
(Unaudited)
(In thousands)
<TABLE>
<CAPTION>
Three Months Three Months
Ended Ended
March 31, 2000 March 31, 1999
-------------- --------------
<S> <C> <C>
Net revenues $ 59,274 $ 44,610
Operating costs and expenses:
Direct operating 18,073 12,104
Selling, general and administrative 14,043 12,466
Corporate 2,516 1,948
KXTX management fee -- 1,543
Amortization of program rights 4,996 3,345
Depreciation and amortization of intangible assets 15,355 14,215
-------- --------
Total operating costs and expenses 54,983 45,621
-------- --------
Operating income (loss) 4,291 (1,011)
Other (income) expense:
Interest expense 19,774 15,909
Investment income (1,016) (589)
Share of loss in joint ventures 1,021 1,821
Other, net 25 --
-------- --------
Total other expense, net 19,804 17,141
-------- --------
Loss before provision for (benefit from)
income taxes (15,513) (18,152)
Provison for (benefit from) income taxes 7,053 (2,981)
-------- --------
Net loss $(22,566) $(15,171)
======== ========
</TABLE>
The accompanying notes are an integral part of the condensed consolidated
financial statements.
2
<PAGE> 5
LIN HOLDINGS CORP.
Condensed Consolidated Statements of Cash Flows
(Unaudited)
(In thousands)
<TABLE>
<CAPTION>
Three Months Three Months
Ended Ended
March 31, 2000 March 31, 1999
-------------- --------------
<S> <C> <C>
NET CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES $ 5,426 $ (1,173)
--------- ---------
INVESTING ACTIVITIES:
Capital expenditures (4,701) (7,382)
Proceeds from asset disposals -- 14
Investment in joint ventures -- (135)
Acquisitions of WWLP, net of cash acquired (125,878) --
Local Marketing Agreement Expenditures (3,250) --
--------- ---------
NET CASH USED IN INVESTING ACTIVITIES (133,829) (7,503)
--------- ---------
FINANCING ACTIVITIES:
Payments on exercises of phantom stock units (61) (171)
Principal payments on long-term debt (16,112) (10,927)
Proceeds from long-term debt 10,000 --
Proceeds from long-term debt related to the
acquisition of WWLP-TV 128,000 --
--------- ---------
NET CASH USED IN FINANCING ACTIVITIES 121,827 (11,098)
--------- ---------
Net decrease in cash and cash equivalents (6,576) (19,774)
Cash and cash equivalents at the beginning of the period 17,699 41,349
--------- ---------
Cash and cash equivalents at the end of the period $ 11,123 $ 21,575
========= =========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
In March 2000, WGRC, Inc., a subsidiary of WWLP
Holdings, Inc., acquired WWLP-TV for approximately
$128.0 million. For accounting purposes only, the
cash flows of WWLP Holdings, Inc. and its consolidated
subsidiaries are included in these condensed consolidated
financial statement. In conjunction with this acquisition,
liabilities were assumed as follows:
Fair value of assets acquired $ 128,635 --
Cash paid (128,000) --
--------- ---------
Liabilities assumed $ 635 --
========== ======+==
</TABLE>
The accompanying notes are an integral part of the condensed consolidated
financial statements.
3
<PAGE> 6
LIN HOLDINGS CORP.
Notes to Condensed Consolidated Financial Statements
(unaudited)
NOTE 1 - BASIS OF PRESENTATION:
LIN Holdings Corp. ("LIN Holdings"), together with its subsidiaries,
including LIN Television Corporation ("LIN Television") (together, the
"Company"), is a television station group operator in the United States and
Puerto Rico that owns nine television stations, eight of which are
network-affiliated television stations. Additionally, the Company has local
marketing agreements ("LMAs") under which it programs four other stations in the
markets in which it operates. LIN Holdings and its subsidiaries, including LIN
Television, are affiliates of Hicks, Muse, Tate & Furst Incorporated ("Hicks
Muse").
All of the Company's direct and indirect consolidated subsidiaries fully
and unconditionally guarantee the Company's Senior Subordinated Notes on a joint
and several basis.
These condensed consolidated 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 statements should be read in conjunction with the Company's
annual report on Form 10-K for the fiscal year ended December 31, 1999.
In the opinion of management, the accompanying unaudited interim financial
statements contain all adjustments (consisting of normal recurring adjustments)
necessary to summarize fairly the financial position, results of operations and
cash flows of the Company for the periods presented. The interim results of
operations are not necessarily indicative of the results to be expected for the
full year.
The Company's preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amount of assets and liabilities and
disclosure of contingent assets and liabilities at the dates of the financial
statements and the reported amounts of revenues and expenses during the reported
periods. Estimates are used when accounting for the collectability of accounts
receivable and valuing intangible assets, deferred tax assets and net assets of
businesses acquired. Actual results could differ from these estimates.
NOTE 2 - INVESTMENTS:
JOINT VENTURE WITH NBC. The Company owns a 20.38% interest in a joint
venture with NBC and accounts for its interest using the equity method, as the
Company does not have a controlling interest. The following presents the
summarized financial information of the joint venture (in thousands):
<TABLE>
<CAPTION>
Three Months Three Months
Ended Ended
March 31, 2000 March 31, 1999
(unaudited) (unaudited)
-------------- --------------
<S> <C> <C>
Net revenues ..................... $ 37,250 $ 29,593
Operating income.................. 12,556 6,598
Net loss ......................... (4,132) (8,929)
</TABLE>
<TABLE>
<CAPTION>
March 31, 2000 December 31, 1999
(unaudited) (unaudited)
-------------- -----------------
<S> <C> <C>
Current assets ................... $ 14,158 $ 159
Non-current assets ............... 237,759 249,692
Current liabilities .............. 1,087 725
Non-current liabilities........... 815,500 815,500
</TABLE>
4
<PAGE> 7
LIN HOLDINGS CORP.
Notes to Condensed Consolidated Financial Statements
(unaudited)
The financial information of the Company's other joint venture investments
is not material for all periods presented.
NOTE 3 - INTANGIBLE ASSETS:
Intangible assets consisted of the following at (in thousands):
<TABLE>
<CAPTION>
March 31, 2000 December 31, 1999
(Unaudited)
-------------- -----------------
<S> <C> <C>
FCC licenses and network affiliations................... $ 1,058,548 $ 944,020
Goodwill ............................................... 670,397 670,397
----------- -----------
1,728,945 1,614,417
Less accumulated amortization .......................... (78,204) (68,025)
----------- -----------
$ 1,650,741 $ 1,546,392
=========== ===========
</TABLE>
NOTE 4 - LONG-TERM DEBT:
Long-term debt consisted of the following at (in thousands):
<TABLE>
<CAPTION>
March 31, 2000 December 31, 1999
(Unaudited)
-------------- -----------------
<S> <C> <C>
Senior Credit Facilities .................................... $ 313,467 $ 319,579
$300,000, 8 3/8% Senior Subordinated Notes
due 2008 (net of a discount of $600) ...................... 299,400 299,387
$325,000, 10% Senior Discount Notes
due 2008 (net of a discount of $80,469) ................... 244,531 238,660
Credit facilities of WWLP Holdings, Inc.
and its consolidated subsidiaries.......................... 128,000 --
--------- ---------
Total debt .................................................. 985,398 857,626
Less current portion ........................................ (17,077) (15,805)
--------- ---------
Total long-term debt ........................................ $ 968,321 $ 841,821
========= =========
</TABLE>
NOTE 5 - RELATED PARTY TRANSACTIONS:
MONITORING AND OVERSIGHT AGREEMENT. In 1998 LIN Holdings and LIN Television
(collectively, the "Clients") entered into a ten-year agreement with Hicks, Muse
& Co. Partners, L.P. ("Hicks Muse Partners"), an affiliate of Hicks Muse,
pursuant to which the Clients agreed to pay Hicks Muse Partners an annual fee
(payable quarterly) for oversight and monitoring services. The aggregate annual
fee is adjustable on January 1 of each calendar year to an amount equal to 1.0%
of the budgeted consolidated annual earnings before interest, tax, depreciation
and amortization ("EBITDA") of LIN Holdings and its subsidiaries for the then
current fiscal year. Upon the acquisition by LIN Holdings and its subsidiaries
of another entity or business, the fee is adjusted prospectively in the same
manner using the pro forma consolidated annual EBITDA of LIN Holdings and it
subsidiaries. In no event shall the annual fee be less than $1,000,000. Hicks
Muse Partners is also entitled to reimbursement for any expenses incurred by it
in connection with rendering services allocable to LIN Holdings or LIN
Television. The fee for the three months ended March 31, 2000 and 1999 was
$338,475 and $250,000, respectively.
WWLP, HOLDINGS INC. Pursuant to a Guarantee and Collateral Agreement with
Chase Manhattan Bank, as administrative agent, and the lenders named therein,
dated March 31, 2000, the Company is the guarantor of a $75 million credit
facility to WWLP, Inc. of which $50 million was outstanding as of March 31,
2000. WWLP Holdings Inc., and its subsidiaries WWLP, Inc. and WGRC, Inc.
(together, "WWLP Holdings"), companies recently formed by Gary R. Chapman,
President and CEO of LIN Television, acquired the broadcast license and
operating assets of WWLP-TV, a station previously operated by Benedek
Broadcasting Corporation, on March 31, 2000. The acquisition was accounted for
as a purchase by WWLP Holdings and accordingly, the purchase price was allocated
to the assets acquired and liabilities assumed based on their estimated fair
values at the date of acquisition. Those estimates are subject to adjustment
when additional information concerning tangible asset and liability valuations
is finalized. The Company does not own or control the assets or FCC license of
WGRC, Inc. Pursuant to Emerging Issues Task Force Topic D-14, "Transactions
Involving Special Purpose Entities," WWLP Holdings satisfies the definition of a
special purpose entity and the Company is deemed to be the sponsor of WWLP
Holdings. Accordingly, the financial results of operations of WWLP Holdings have
been consolidated with those of the Company in these condensed consolidated
financial statements. Mr. Chapman has granted to the Company a one-year purchase
option to acquire the stock of WWLP Holdings at an amount equal to Mr. Chapman's
investment in WWLP Holdings. In addition, the Company has entered into a
management services agreement as an independent contractor with WGRC, Inc.
whereby the Company provides services related to the management and operations
of WGRC, Inc.
The assets and liabilities of WWLP Holdings at March 31, 2000 are
summarized below:
<TABLE>
<S> <C>
Current assets ..................................................... $ 5,332
Non-current assets ................................................. 123,303
Current liabilities ................................................ 635
Non-current liabilities ............................................ 128,000
</TABLE>
WWLP Holdings had no revenues or expenses in any periods presented. Pro
forma statements of operations would not differ materially from reported results
for any period presented.
5
<PAGE> 8
LIN HOLDINGS CORP.
Notes to Condensed Consolidated Financial Statements
(unaudited)
JOINT VENTURE WITH 21ST CENTURY GROUP LLC. In August 1999, the Company and
21st Century Group LLC ("21st Century"), an entity in which Hicks Muse has a
substantial economic interest, announced the formation of a television station
joint venture, Banks Broadcasting, LLC. The Company and 21st Century also
announced the first transaction of the Banks Broadcasting joint venture, the
entry into a local marketing agreement to build and develop a new WB affiliate
serving the Wichita, Kansas DMA. As of March 31, 2000, the Company has provided
funding of $5.8 million in the form of an investment of $2.9 million and an
advance of $2.9 million, to the Banks Broadcasting joint venture.
NOTE 6 - COMMITMENTS AND CONTINGENCIES:
CHANGES IN FCC OWNERSHIP RULES. Effective November 16, 1999, the Federal
Communications Commission (the "FCC") significantly revised certain of its
broadcast ownership regulations. The new rules are still subject to potentially
significant amendments in response to numerous petitions for reconsideration. As
the rules are currently formulated, the Company believes that: 1) the four LMAs
the Company has entered into in the Grand Rapids, New Haven, Austin and Norfolk
markets are grandfathered; 2) these four combinations are probably eligible for
waivers of the duopoly rule and the Company will likely be able to convert those
LMAs to ownership interests through the exercise of option rights with respect
to each of those stations prior to the expiration of the grandfather period; and
3) the rules permit the continued cross-ownership by the Company and AMFM Inc.,
an entity in which Hicks Muse has a significant economic interest, of the
television and radio stations currently owned by those companies in the Grand
Rapids, Hartford-New Haven, Austin, and Indianapolis markets. (Stations owned by
the Company and AMFM Inc. are each attributable to the other company for
purposes of the radio-television cross-ownership rule.) There can be no
assurances however that the rules will be implemented or interpreted in such a
manner. The Company is still evaluating whether and when to exercise its options
to purchase each of the LMA stations.
HICKS MUSE RESTRUCTURING. On January 21, 2000, Thomas O. Hicks and Hicks,
Muse, Tate and Furst ("Hicks Muse") filed an application with the FCC proposing
to restructure the ownership of the Company in a manner in which the Company and
the applicants believe would render the ownership interests of Thomas O. Hicks
and other Hicks Muse principals nonattributable for the purposes of FCC
ownership rules. The Company expects that the current attribution issues
6
<PAGE> 9
LIN HOLDINGS CORP.
Notes to Condensed Consolidated Financial Statements
(unaudited)
associated with the Hicks Muse ownership interests will be resolved upon the
completion of the recapitalization. There can be no assurances however that the
application will be approved in such a manner.
OTHER CONTINGENCIES. In September 1999, AMFM Inc., which owns more than 400
radio stations, announced its intention to merge with Clear Channel
Communications, a company which owns more than 500 radio stations and 19
television stations. The television and radio interests owned by the proposed
combined entity would also be attributable to the Company for purposes of the
radio-television cross-ownership rule and the television duopoly rule. Clear
Channel has announced its intention to make whatever divestitures are necessary
to bring it into compliance with the FCC's ownership rules prior to the merger
but the ownership interests of Clear Channel could in the future limit the
ability of the Company to acquire more television stations.
In addition, the Company currently and from time to time is involved in
litigation incidental to the conduct of its business. In the opinion of the
Company's management, none of such litigation as of March 31, 2000 is likely to
have a material adverse effect on the financial position, results of operations,
or cash flows of the Company.
NOTE 7 - SUBSEQUENT EVENTS:
WAND-TV EXCHANGE. On December 13, 1999, the Company entered into an
agreement whereby the Company agreed to exchange with Blade Communications Inc.
a 67% interest in the assets of its television station WAND-TV, Decatur,
Illinois for substantially all of the assets of WLFI-TV, Inc. (the "WAND-TV
Exchange"). WLFI-TV, Inc. owns, operates and is the licensee of television
station WLFI-TV, Lafayette, Indiana. This transaction was completed on April 1,
2000.
NOTE 8 - RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS:
In March 2000, the Financial Accounting Standards Board issued FASB
Interpretation No. 44, "Accounting for Certain Transactions Involving Stock
Compensation - an interpretation of APB Opinion No. 25" ("FIN 44"). FIN 44
clarifies the application of APB Opinion No. 25 and among other issues clarifies
the following: the definition of an employee for purposes of applying APB
Opinion No. 25; the criteria for determining whether a plan qualifies as a
noncompensatory plan; the accounting consequences of various modifications to
the terms of previously fixed stock options or awards; and the accounting for an
exchange of stock compensation awards in a business combination. FIN 44 is
effective July 1, 2000, but certain conclusions in FIN 44 cover specific events
that occurred after either December 15, 1998 or January 12, 2000. The Company
does not expect the application of FIN 44 to have a material impact on the
Company's financial position or results of operations.
7
<PAGE> 10
LIN TELEVISION CORPORATION
Condensed Consolidated Balance Sheets
(In thousands, except number of shares)
<TABLE>
<CAPTION>
March 31, 2000 December 31, 1999
-------------- -----------------
ASSETS (Unaudited)
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 11,123 $ 17,699
Accounts receivable, less allowance for doubtful accounts (2000 - $1,554;
1999 - $1,918) 43,626 55,515
Program rights 15,877 13,601
Other current assets 7,325 6,988
----------- -----------
Total current assets 77,951 93,803
Property and equipment, net 153,184 144,882
Deferred financing costs 30,143 31,120
Investment in joint ventures 64,929 65,771
Investment in Southwest Sports Group, at cost plus accrued interest 50,750 50,000
Program rights 6,078 4,552
Intangible assets, net 1,650,741 1,546,392
Other assets 9,512 5,732
----------- -----------
Total Assets $ 2,043,288 $ 1,942,252
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 6,869 $ 7,477
Program obligations 15,237 13,336
Accrued income taxes 4,719 4,750
Current portion of long-term debt 17,077 15,805
Accrued interest expense 3,747 10,494
Other accruals 20,697 27,389
----------- -----------
Total current liabilities 68,346 79,251
Long-term debt, excluding current portion 723,790 603,161
Deferred income taxes 524,969 533,309
Program obligations 6,630 5,819
Other liabilities 6,919 7,050
----------- -----------
Total liabilities 1,330,654 1,228,590
----------- -----------
Commitments and Contingencies (Note 6)
Stockholders' equity:
Preferred stock, $0.01 par value: No Shares Authorized -- --
Common stock, $0.01 par value: Authorized, issued and outstanding shares;
2000 - 1,000, 1999 - 1,000 -- --
Additional paid-in capital 748,115 748,054
Accumulated deficit (35,481) (34,392)
----------- -----------
Total stockholders' equity 712,634 713,662
----------- -----------
Total liabilities and stockholders' equity $ 2,043,288 $ 1,942,252
=========== ===========
</TABLE>
The accompanying notes are an integral part of the condensed consolidated
financial statements.
8
<PAGE> 11
LIN TELEVISION CORP.
Condensed Consolidated Statements of Operations
(Unaudited)
(In thousands)
<TABLE>
<CAPTION>
Three Months Three Months
Ended Ended
March 31, 2000 March 31, 1999
-------------- --------------
<S> <C> <C>
Net revenues $ 59,274 $ 44,610
Operating costs and expenses:
Direct operating 18,073 12,104
Selling, general and administrative 14,043 12,466
Corporate 2,516 1,948
KXTX management fee -- 1,543
Amortization of program rights 4,996 3,345
Depreciation and amortization of intangible assets 15,355 14,215
-------- --------
Total operating costs and expenses 54,983 45,621
-------- --------
Operating income (loss) 4,291 (1,011)
Other (income) expense:
Interest expense 13,584 10,351
Investment income (1,016) (589)
Share of loss in joint ventures 1,021 1,821
Other, net 25 --
-------- --------
Total other expense, net 13,614 11,583
-------- --------
Loss before provision for (benefit from)
income taxes (9,323) (12,594)
Provison for (benefit from) income taxes (8,234) 2,252
-------- --------
Net loss $ (1,089) $(14,846)
======== ========
</TABLE>
The accompanying notes are an integral part of the condensed consolidated
financial statements.
9
<PAGE> 12
LIN TELEVISION CORPORATION
Condensed Consolidated Statements of Cash Flows
(Unaudited)
(In thousands)
<TABLE>
<CAPTION>
Three Months Three Months
Ended Ended
March 31, 2000 March 31, 1999
-------------- --------------
<S> <C> <C>
NET CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES $ 5,426 $ (1,173)
--------- ---------
INVESTING ACTIVITIES:
Capital expenditures (4,701) (7,382)
Proceeds from asset disposals -- 14
Investment in joint ventures -- (135)
Acquisition of WWLP-TV, net of cash acquired (125,878) --
Local Marketing Agreement Expenditures (3,250) --
--------- ---------
NET CASH USED IN INVESTING ACTIVITIES (133,829) (7,503)
---------- ----------
FINANCING ACTIVITIES:
Payments on exercises of phantom stock units (61) (171)
Principal payments on long-term debt (16,112) (10,927)
Proceeds from long-term debt 10,000 --
Proceeds from long-term debt related to the
acquisition of WWLP-TV 128,000 --
--------- ---------
NET CASH USED IN FINANCING ACTIVITIES 121,827 (11,098)
--------- ---------
Net decrease in cash and cash equivalents (6,576) (19,774)
Cash and cash equivalents at the beginning of the period 17,699 41,349
--------- ---------
Cash and cash equivalents at the end of the period $ 11,123 $ 21,575
========= =========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
In March 2000, WGRC, Inc., a subsidiary of WWLP Holdings, Inc.,
acquired WWLP-TV for approximately $128.0 million. For
accounting purposes only, the cash flows of WWLP Holdings,
Inc., and its consolidated subsidiaries are included in these
condensed consolidated financial statements. In conjunction
with this acquisition, liabilities were assumed as follows:
Fair value of assets acquired $ 128,635 --
Cash paid (128,000) --
--------- ---------
Liabilities assumed $ 635 --
========= =========
</TABLE>
The accompanying notes are an integral part of the condensed consolidated
financial statements.
10
<PAGE> 13
LIN TELEVISION CORPORATION
Notes to Condensed Consolidated Financial Statements
(unaudited)
NOTE 1 - BASIS OF PRESENTATION:
LIN Television Corporation, together with its subsidiaries (together, the
"Company" or "LIN Television"), is a television station group operator in the
United States and Puerto Rico that owns nine television stations, eight of which
are network-affiliated television stations. Additionally, the Company has local
marketing agreements ("LMAs") under which it programs four other stations in the
markets in which it operates. LIN Television is an affiliate of Hicks, Muse,
Tate & Furst Incorporated ("Hicks Muse").
All of the Company's direct and indirect consolidated subsidiaries fully
and unconditionally guarantee the Company's Senior Subordinated Notes on a joint
and several basis.
These condensed consolidated 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 statements should be read in conjunction with the Company's
annual report on Form 10-K for the fiscal year ended December 31, 1999.
In the opinion of management, the accompanying unaudited interim financial
statements contain all adjustments (consisting of normal recurring adjustments)
necessary to summarize fairly the financial position, results of operations and
cash flows of the Company for the periods presented. The interim results of
operations are not necessarily indicative of the results to be expected for the
full year.
The Company's preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amount of assets and liabilities and
disclosure of contingent assets and liabilities at the dates of the financial
statements and the reported amounts of revenues and expenses during the reported
periods. Estimates are used when accounting for the collectability of accounts
receivable and valuing intangible assets, deferred tax assets and net assets of
businesses acquired. Actual results could differ from these estimates.
NOTE 2 - INVESTMENTS:
JOINT VENTURE WITH NBC. The Company owns a 20.38% interest in a joint
venture with NBC and accounts for its interest using the equity method, as the
Company does not have a controlling interest. The following presents the
summarized financial information of the joint venture (in thousands):
<TABLE>
<CAPTION>
Three Months Three Months
Ended Ended
March 31, 2000 March 31, 1999
(unaudited) (unaudited)
-------------- --------------
<S> <C> <C>
Net revenues ..................... $ 37,250 $ 29,593
Operating income.................. 12,556 6,598
Net loss ......................... (4,132) (8,929)
</TABLE>
<TABLE>
<CAPTION>
March 31, 2000 December 31, 1999
(unaudited) (unaudited)
-------------- -----------------
<S> <C> <C>
Current assets ................... $ 14,158 $ 159
Non-current assets ............... 237,759 249,692
Current liabilities .............. 1,087 725
Non-current liabilities........... 815,500 815,500
</TABLE>
11
<PAGE> 14
LIN TELEVISION CORPORATION
Notes to Condensed Consolidated Financial Statements
(unaudited)
The financial information of the Company's other joint venture investments is
not material for all periods presented.
NOTE 3 - INTANGIBLE ASSETS:
Intangible assets consisted of the following (in thousands):
<TABLE>
<CAPTION>
March 31, 2000
(Unaudited) December 31, 1999
-------------- -----------------
<S> <C> <C>
FCC licenses and network affiliations................... $ 1,058,548 $ 944,020
Goodwill ............................................... 670,397 670,397
----------- -----------
1,728,945 1,614,417
Less accumulated amortization .......................... (78,204) (68,025)
----------- -----------
$ 1,650,741 $ 1,546,392
=========== ===========
</TABLE>
NOTE 4- LONG-TERM DEBT:
Long-term debt consisted of the following at (in thousands):
<TABLE>
<CAPTION>
March 31, 2000
(Unaudited) December 31, 1999
-------------- -----------------
<S> <C> <C>
Senior Credit Facilities .................................... $ 313,467 $ 319,579
$300,000, 8 3/8% Senior Subordinated Notes
due 2008 (net of discount of $600) ........................ 299,400 299,387
Credit facilities of WWLP Holdings, Inc. and its
consolidated subsidiaries ................................. 128,000 -
--------- ---------
Total debt .................................................. 740,867 618,966
Less current portion ........................................ (17,077) (15,805)
--------- ---------
Total long-term debt ........................................ $ 723,790 $ 603,161
========= =========
</TABLE>
NOTE 5 - RELATED PARTY TRANSACTIONS:
MONITORING AND OVERSIGHT AGREEMENT. In 1998 LIN Holdings and LIN Television
(collectively, the "Clients") entered into a ten-year agreement with Hicks, Muse
& Co. Partners, L.P. ("Hicks Muse Partners"), an affiliate of Hicks Muse,
pursuant to which the Clients agreed to pay Hicks Muse Partners an annual fee
(payable quarterly) for oversight and monitoring services. The aggregate annual
fee is adjustable on January 1 of each calendar year to an amount equal to 1.0%
of the budgeted consolidated annual earnings before interest, tax, depreciation
and amortization ("EBITDA") of LIN Holdings and its subsidiaries for the then
current fiscal year. Upon the acquisition by LIN Holdings and its subsidiaries
of another entity or business, the fee is adjusted prospectively in the same
manner using the pro forma consolidated annual EBITDA of LIN Holdings and it
subsidiaries. In no event shall the annual fee be less than $1,000,000. Hicks
Muse Partners is also entitled to reimbursement for any expenses incurred by it
in connection with rendering services allocable to LIN Holdings or LIN
Television. The fee for the three months ended March 31, 2000 and 1999 was
$338,475 and $250,000, respectively.
WWLP, HOLDINGS, INC. Pursuant to a Guarantee and Collateral Agreement with
Chase Manhattan Bank, as administrative agent, and the lenders named therein,
dated March 31, 2000, the Company is the guarantor of a $75 million credit
facility to WWLP, Inc. of which $50 million was outstanding as of March 31,
2000. WWLP Holdings Inc., and its subsidiaries WWLP, Inc. and WGRC, Inc.
(together, "WWLP Holdings"), companies recently formed by Gary R. Chapman,
President and CEO of LIN Television, acquired the broadcast license and
operating assets of WWLP-TV,a station previously operated by Benedek
Broadcasting Corporation, on March 31, 2000. The acquisition was accounted for
as a purchase by WWLP Holdings and accordingly, the purchase price was allocated
to the assets acquired and liabilities assumed based on their estimated fair
values at the date of acquisition. Those estimates are subject to adjustment
when additional information concerning tangible asset and liability valuations
is finalized. The Company does not own or control the assets or FCC license of
WGRC, Inc. Pursuant to Emerging Issues Task Force Topic D-14, "Transactions
Involving Special Purpose Entities," WWLP Holdings satisfies the definition of a
special purpose entity and the Company is deemed to be the sponsor of WWLP
Holdings. Accordingly, the financial results of operations of WWLP Holdings have
been consolidated with those of the Company in these condensed consolidated
financial statements. Mr. Chapman has granted to the Company a one-year purchase
option to acquire the stock of WWLP Holdings at an amount equal to Mr. Chapmans'
investment in WWLP Holdings. In addition, the Company has entered into a
management services agreement as an independent contractor with WGRC, Inc.
whereby the Company provides services related to the management and operations
of WGRC, Inc.
The assets and liabilities of WWLP Holdings at March 31, 2000 are
summarized below:
<TABLE>
<S> <C>
Current assets ................................................... $ 5,332
Non-current assets ............................................... 123,303
Current liabilities .............................................. 635
Non-current liabilities .......................................... 128,000
</TABLE>
WWLP Holdings had no revenues or expenses in any periods presented. Pro
forma statements of operations would not differ materially from reported results
for any period presented.
12
<PAGE> 15
LIN TELEVISION CORPORATION
Notes to Condensed Consolidated Financial Statements
(unaudited)
JOINT VENTURE WITH 21ST CENTURY GROUP LLC. In August 1999, the Company and
21st Century Group LLC ("21st Century"), an entity in which Hicks Muse has a
substantial economic interest, announced the formation of a television station
joint venture, Banks Broadcasting, LLC. The Company and 21st Century also
announced the first transaction of the Banks Broadcasting joint venture, the
entry into a local marketing agreement to build and develop a new WB affiliate
serving the Wichita, Kansas DMA. As of March 31, 2000, the Company has provided
funding of $5.8 million in the form of an investment of $2.9 million and an
advance of $2.9 million, to the Banks Broadcasting joint venture.
NOTE 6 - COMMITMENTS AND CONTINGENCIES:
CHANGES IN FCC OWNERSHIP RULES. Effective November 16, 1999, the Federal
Communications Commission (the "FCC") significantly revised certain of its
broadcast ownership regulations. The new rules are still subject to potentially
significant amendments in response to numerous petitions for reconsideration. As
the rules are currently formulated, the Company believes that: 1) the four LMAs
the Company has entered into in the Grand Rapids, New Haven, Austin and Norfolk
markets are grandfathered; 2) these four combinations are probably eligible for
waivers of the duopoly rule and the Company will likely be able to convert those
LMAs to ownership interests through the exercise of option rights with respect
to each of those stations prior to the expiration of the grandfather period; and
3) the rules permit the continued cross-ownership by the Company and AMFM Inc.,
an entity in which Hicks Muse has a significant economic interest, of the
television and radio stations currently owned by those companies in the Grand
Rapids, Hartford-New Haven, Austin, and Indianapolis markets. (Stations owned by
the Company and AMFM Inc. are each attributable to the other company for
purposes of the radio-television cross-ownership rule.) There can be no
assurances however that the rules will be implemented or interpreted in such a
manner. The Company is still evaluating whether and when to exercise its options
to purchase each of the LMA stations.
HICKS MUSE RESTRUCTURING. On January 21, 2000, Thomas O. Hicks and Hicks,
Muse, Tate and Furst ("Hicks Muse") filed an application with the FCC proposing
to restructure the ownership of the Company in a manner in which the Company and
the applicants believe would render the ownership interests of Thomas O. Hicks
and other Hicks Muse principals nonattributable for the purposes of FCC
ownership rules. The Company expects that the current attribution issues
associated with the Hicks Muse ownership interests will be resolved upon the
13
<PAGE> 16
LIN TELEVISION CORPORATION
Notes to Condensed Consolidated Financial Statements
(unaudited)
completion of the recapitalization. There can be no assurances however that the
application will be approved in such a manner.
OTHER CONTINGENCIES. In September 1999, AMFM Inc., which owns more than 400
radio stations, announced its intention to merge with Clear Channel
Communications, a company which owns more than 500 radio stations and 19
television stations. The television and radio interests owned by the proposed
combined entity would also be attributable to the Company for purposes of the
radio-television cross-ownership rule and the television duopoly rule. Clear
Channel has announced its intention to make whatever divestitures are necessary
to bring it into compliance with the FCC's ownership rules prior to the merger
but the ownership interests of Clear Channel could in the future limit the
ability of the Company to acquire more television stations.
In addition, the Company currently and from time to time is involved in
litigation incidental to the conduct of its business. In the opinion of the
Company's management, none of such litigation as of March 31, 2000 is likely to
have a material adverse effect on the financial position, results of operations,
or cash flows of the Company.
NOTE 7 - SUBSEQUENT EVENTS:
WAND-TV EXCHANGE. On December 13, 1999, the Company entered into an
agreement whereby the Company agreed to exchange with Blade Communications Inc.
a 67% interest in the assets of its television station WAND-TV, Decatur,
Illinois for substantially all of the assets of WLFI-TV, Inc. (the "WAND-TV
Exchange"). WLFI-TV, Inc. owns, operates and is the licensee of television
station WLFI-TV, Lafayette, Indiana. This transaction was completed on April 1,
2000.
NOTE 8 - RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS:
In March 2000, the Financial Accounting Standards Board issued FASB
Interpretation No. 44, "Accounting for Certain Transactions Involving Stock
Compensation - an interpretation of APB Opinion No. 25" ("FIN 44"). FIN 44
clarifies the application of APB Opinion No. 25 and among other issues clarifies
the following: the definition of an employee for purposes of applying APB
Opinion No. 25; the criteria for determining whether a plan qualifies as a
noncompensatory plan; the accounting consequences of various modifications to
the terms of previously fixed stock options or awards; and the accounting for an
exchange of stock compensation awards in a business combination. FIN 44 is
effective July 1, 2000, but certain conclusions in FIN 44 cover specific events
that occurred after either December 15, 1998 or January 12, 2000. The Company
does not expect the application of FIN 44 to have a material impact on the
Company's financial position or results of operations.
14
<PAGE> 17
PART I: FINANCIAL INFORMATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION
Forward-Looking Statements
Certain statements in this Section and elsewhere in this report are
forward-looking in nature and relate to trends and events that may affect the
future financial position and operating results of LIN Holdings Corp. ("LIN
Holdings") and its subsidiaries, including LIN Television Corporation ("LIN
Television"), together, the "Company." When used in this report, the words
"believes," "anticipates," "intends," and similar expressions are intended to
identify forward-looking statements. There are a number of risks, uncertainties
and factors that could cause the Company's actual results to differ materially
from those forecasted or projected in such forwarding-looking statements. These
factors include, without limitation, the promulgation of the new FCC's broadcast
ownership regulations and other regulatory changes, the attribution of Hicks,
Muse, Tate & Furst Incorporated ("Hicks Muse") ownership interests, the timing
and completion of the Hicks Muse Restructuring, the timing and completion of the
AMFM, Inc. merger with Clear Channel Communications, changes in advertising,
demand, technological changes, acquisitions and dispositions, as well as other
risks detailed in the Company's Annual Report on Form 10-K for the year ended
December 31, 1999.
Readers are cautioned not to place undue reliance on these forward-looking
statements that speak only as of the date hereof. The Company undertakes no
obligation to update publicly forward-looking statements, whether as a result of
new information, future events or otherwise.
Business
The Company is a television station group operator in the United States and
Puerto Rico that owns nine television stations, eight of which are
network-affiliated television stations. Additionally, the Company has local
marketing agreements ("LMAs") under which it provides programming for four other
stations in the markets in which it operates.
Business Combinations and Dispositions
On June 3, 1999, LIN Television of Texas, a subsidiary of LIN Television
("LIN Texas") contributed all of the assets of KXTX-TV to Southwest Sports Group
Holdings LLC, Inc. In exchange, LIN Texas received 500,000 units of SSG's Series
A Preferred Units, par value $100.00 per unit.
On June 30, 1999, the Company acquired the assets of WOOD-TV and the LMA
rights related to WOTV-TV, both of which stations are located in the Grand
Rapids-Kalamazoo-Battle Creek market (the "Grand Rapids Acquisition"). The total
purchase price for the Grand Rapids Acquisition was approximately $142.4
million, including direct costs of the acquisition. The Grand Rapids Acquisition
was funded by the combination of operating funds and $93.0 million of borrowings
under the Company's term loan facility.
On October 19, 1999 the Company acquired Pegasus Broadcasting of San Juan,
L.L.C., the owner and operator of WAPA-TV, an independent station located in San
Juan, Puerto Rico (the "Pegasus Acquisition"). The total purchase price for the
Pegasus Acquisition was approximately $71.8 million in cash, including direct
costs of the acquisition. The Pegasus Acquisition was funded by a combination of
operating funds and $60.0 million of borrowings under the Company's term loan
facility.
WWLP HOLDINGS, INC., Pursuant to a Guarantee and Collateral Agreement with
Chase Manhattan Bank, as administrative agent, and the lenders named therein,
dated March 31, 2000, the Company is the guarantor of a $75 million credit
facility to WWLP, Inc. of which $50 million was outstanding as of March 31,
2000. WWLP Holdings Inc., and its subsidiaries WWLP, Inc. and WGRC, Inc.
(together, "WWLP Holdings"), companies recently formed by Gary R. Chapman,
President and CEO of LIN Television, acquired the broadcast license and
operating assets of WWLP-TV, a station previously operated by Benedek
Broadcasting Corporation, on March 31, 2000. The acquisition was accounted for
as a purchase by WWLP Holdings and accordingly, the purchase price was allocated
to the assets acquired and liabilities assumed based on their estimated fair
values at the date of acquisition. These estimates are subject to adjustment
when additional information concerning tangible asset and liability valuations
is finalized. The Company does not own or control the assets or FCC license of
WGRC, Inc. Pursuant to Emerging Issues Task Force Topic D-14, "Transactions
Involving Special Purpose Entities," WWLP Holdings satisfies the definition of a
special purpose entity and the Company is deemed to be the sponsor of WWLP
Holdings. Accordingly, the financial results of operations of WWLP Holdings have
been consolidated with those of the Company in the condensed consolidated
financial statements. Mr. Chapman has granted to the Company a one-year purchase
option to acquire the stock of WWLP Holdings at an amount equal to Mr. Chapman's
investment in WWLP Holdings. In addition, the Company has entered into a
management services agreement as an independent contractor with WGRC, Inc.
whereby the Company provides services related to the management and operations
of WGRC, Inc.
The assets and liabilities of WWLP Holdings at March 31, 2000 are
summarized below:
Current assets...................................................... $ 5,332
Non-current assets.................................................. 123,303
Current liabilities................................................. 635
Non-current liabilities............................................. 128,000
WWLP Holdings had no revenues or expenses in any periods presented. Pro
forma statements of operations would not differ materially from reported results
for any period presented.
15
<PAGE> 18
Results of Operations
Set forth below are the significant factors that contributed to the
operating results of the Company for the three-month periods ended March 31,
2000 and 1999. The Company's results from operations from period to period are
not directly comparable because of the impact of acquisitions and disposals,
including the acquisition of WOOD-TV, WOTV-TV and WAPA-TV and the disposition of
KXTX-TV.
<TABLE>
<CAPTION>
Three Months Ended
------------------
March 31, 2000 March 31, 1999
(unaudited) (unaudited)
-------------- --------------
<S> <C> <C>
Net Revenues $ 59,274 $ 44,610
Operating costs and expenses:
Direct operating 18,073 12,104
Selling, general and administrative 14,043 12,466
Corporate 2,516 1,948
KXTX management fee -- 1,543
Amortization of program rights 4,996 3,345
Depreciation and amortization 15,355 14,215
-------- --------
Total operating costs and expenses 54,983 45,621
-------- --------
Operating income (loss) $ 4,291 $ (1,011)
-------- --------
</TABLE>
Net revenues consist primarily of national and local air time sales, net of
sales adjustments and agency commissions, network compensation, barter revenues
and revenues from the production of local commercials and sports programming.
Total net revenues for the three- month period ended March 31, 2000 increased
approximately 32.9% to $59.3 compared to net revenue of $44.6 for the same
period last year. The increase is primarily due to the impact of the acquisition
of WOOD-TV, WOTV-TV and WAPA-TV partially offset by the disposition of KXTX-TV.
In addition, the increase is the result of net advertising revenue growth in the
markets in which WTNH-TV and WAVY-TV operate, and the continued growth of the
Company's LMA stations.
Direct operating expenses, consisting primarily of news, engineering,
programming and music licensing costs, increased approximately 49.3% to $18.1
for the three-month period ended March 31, 2000, compared to direct operating
expenses of $12.1 million for the same period last year. The increase is
primarily due to the impact of the acquisition of WOOD-TV, WOTV-TV and WAPA-TV
partially offset by the disposition of KXTX-TV.
16
<PAGE> 19
Selling, general and administrative expenses increased approximately 12.7%
to $14.0 million for the three-month period ended March 31, 2000, compared to
selling, general and administrative expenses of $12.5 million for the same
period last year. The increase is primarily the result of higher sales
commission costs associated with the advertising revenue increase.
Corporate expenses, representing costs associated with the centralized
management of the Company's stations, increased 29.2% to $2.5 million for the
three-month period ended March 31, 2000, compared to corporate expenses of $1.9
million for the same period last year. The increase is primarily driven by
increases in corporate development expenses and management bonuses.
The KXTX management fee, representing fees paid to SSG for the management
and sub-programming of KXTX-TV, ceased on June 3, 1999 as a result of the
disposition of KXTX.
Amortization of program rights, representing costs associated with the
acquisition of syndicated programming, features and specials increased 49.4% to
$5.0 million for the three-month period ended March 31, 2000, compared to
amortization of program rights of $3.3 million for the same period last year.
The increase is primarily due to the impact of the acquisition of WOOD-TV,
WOTV-TV and WAPA-TV partially offset by the disposition of KXTX-TV.
Depreciation and amortization of intangible assets increased 8.0% to $15.4
million for the three-month period ended March 31, 2000, compared to
depreciation and amortization of intangible assets of $14.2 million for the same
period last year. The increase is primarily due to the increase in intangible
assets associated with the acquisition of WOOD-TV, WOTV-TV and WAPA-TV.
Other Expenses
Interest expense increased $3.9 million to $19.8 the three-month period
ended March 31, 2000, compared to interest expense of $15.9 million for the same
period last year. The increase is the result of increased borrowings associated
with the acquisition of WOOD-TV, WOTV-TV and WAPA-TV in 1999.
The Company's provision for income taxes increased $10.1 million to $7.1
million for the three-month period ended March 31, 2000, compared to a benefit
of $3.0 million for the same period last year. The increase was primarily due to
a decrease in the Company's net loss.
Liquidity and Capital Resources
Net cash provided by operating activities for the three months ended March
31, 2000 totaled $5.4 million, compared to net cash used in operating activities
of $1.2 million for the same period last year. The increase is the result of
increases in operating income. Net cash used in investing activities was $133.8
million for the three months ended March 31, 2000, compared to $7.5 million for
the same period last year. The increase is primarily due to amounts paid related
to the WWLP-TV transaction. Net cash provided by financing activities for the
three months ended March 31, 2000 was $121.8 million compared to cash used in
financing activities of $11.1 million for the same period last year. The
increase in cash provided is due to proceeds from a credit facility provided to
WWLP Holdings, Inc. and its subsidiaries in connection with the WWLP-TV
transaction.
Based on the current level of operations and anticipated future growth
(both internally generated as well as through acquisitions), the Company
believes that its cash flows from operations, together with borrowings under its
credit facilities, will be sufficient to meet its anticipated requirements for
working capital, capital expenditures, interest payments and scheduled principal
payments for at least the next year.
17
<PAGE> 20
Year 2000
As of the date of this report, the Company has not experienced any material
Year 2000 related business interruptions. The Company will continue to engage in
an ongoing Year 2000 assessment, but has not yet identified any material Year
2000 issues. The Company believes that modifications and conversions of its
internal systems and equipment has allowed it to be Year 2000 compliant. There
can be no assurance, however, that the Company's internal systems or equipment
or those of third parties on which the Company relies are completely Year 2000
compliant or that Year 2000 problems will not occur in the future. The failure
of the systems or equipment of the Company or third parties could have a
material adverse effect on the Company's business, financial position and
results of operations.
18
<PAGE> 21
PART I: FINANCIAL INFORMATION
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is exposed to market risk from changes in interest rates
principally with respect to its credit facility, which is priced based on
certain interest rate alternatives. The Company's Senior Subordinated and Senior
Discount Notes are fixed rate instruments (see Note 4 of the notes to the
condensed consolidated financial statements.) The Company does not believe that
its interest rate risks are material to its operations.
19
<PAGE> 22
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
As previously reported, LIN Television was named as a defendant in four
lawsuits regarding the then proposed merger of LIN Television with LIN Holdings.
The plaintiffs in each of these actions have agreed to an indefinite extension
of time for each of the defendants served to respond to the respective
complaints. No discovery has taken place.
In addition, the Company currently and from time to time is involved in
litigation incidental to the conduct of its business. In the opinion of the
Company's management, none of such litigation at March 31, 2000 is likely to
have a material adverse effect on the Company's financial condition, results of
operations or cash flows.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
<TABLE>
<CAPTION>
EXHIBITS:
---------
<S> <C>
10.28 Amended and Restated Guarantee and Collateral Agreement dated as of
March 31, 2000, between LIN Holdings Corp., LIN Television
Corporation and certain of its Subsidiaries, in favor of The Chase
Manhattan Bank.
10.29 Option Agreement dated as of March 31, 2000, between LIN Television
Corporation and Gary R. Chapman.
10.30 Management Service Agreement dated as of March 31,
2000, between LIN Television Corporation and WGRC,
LLC.
27.1 Financial Data Schedule for LIN Holdings Corp. for the three months
ended March 31, 2000.
27.2 Financial Data Schedule for LIN Television Corporation for the three
months ended March 31, 2000.
</TABLE>
REPORTS ON FORM 8-K:
None.
20
<PAGE> 23
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrants have duly caused this report to be signed on each of their
respective behalf by the undersigned thereunto duly authorized.
LIN HOLDINGS CORP. LIN TELEVISION CORPORATION
(Registrant) (Registrant)
DATED: MAY 12, 2000 /s/ Peter E. Maloney
-------------------------
Peter E. Maloney
Vice President of Finance
(Principal Financial and
Accounting Officer.)
21
<PAGE> 1
Exhibit 10.28
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
GUARANTEE AND COLLATERAL AGREEMENT
MADE BY
LIN HOLDINGS CORP.,
LIN TELEVISION CORPORATION AND
CERTAIN OF ITS SUBSIDIARIES,
IN FAVOR OF
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
DATED AS OF MARCH 31, 2000
- --------------------------------------------------------------------------------
<PAGE> 2
<TABLE>
<CAPTION>
<S> <C>
SECTION 1. DEFINED TERMS
1.1 Definitions...................................................................................1
1.2 Other Definitional Provisions.................................................................7
SECTION 2. GUARANTEE
2.1 Guarantee of Borrower Obligations.............................................................8
2.1.1 Right of Contribution.........................................................................9
2.1.2 No Subrogation................................................................................9
2.1.3 Amendments, etc. with respect to the Borrower Obligations.....................................9
2.1.4 Guarantee Absolute and Unconditional.........................................................10
2.1.5 Reinstatement................................................................................11
2.1.6 Payments.....................................................................................11
2.2 Guarantee of IHB Obligations.................................................................11
2.2.1 Right of Contribution........................................................................12
2.2.2 No Subrogation...............................................................................12
2.2.3 Amendments, etc. with respect to the IHB Obligations.........................................12
2.2.4 Guarantee Absolute and Unconditional.........................................................13
2.2.5 Reinstatement................................................................................14
2.2.6 Payments.....................................................................................14
SECTION 3. GRANT OF SECURITY INTEREST
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 Representations in LIN Credit Agreement......................................................15
4.2 Title. No Other Liens........................................................................15
4.3 Perfected First Priority Liens...............................................................16
4.4 Chief Executive Office.......................................................................16
4.5 Inventory and Equipment......................................................................16
4.6 Farm Products................................................................................16
4.7 Pledged Securities...........................................................................16
4.8 Receivables..................................................................................17
4.9 Intellectual Property........................................................................17
4.10 Financial Condition..........................................................................17
4.11 Solvency.....................................................................................18
4.12 Security Documents...........................................................................18
SECTION 5. COVENANTS
5.1 Covenants in LIN Credit Agreement............................................................18
5.2 Financial Statements; Certificates; Notices..................................................18
5.3 Delivery of Instruments and Chattel Paper....................................................19
5.4 Insurance....................................................................................19
5.5 Maintenance of Perfected Security Interest; Further Documentation............................19
5.6 Changes in Locations, Name, etc..............................................................19
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C>
5.7 Pledged Securities...........................................................................20
5.8 Receivables..................................................................................20
5.9 Intellectual Property........................................................................21
SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Related to Receivables.......................................................22
6.2 Communications with Obligors, Grantors Remain Liable.........................................22
6.3 Pledged Securities...........................................................................23
6.4 Proceeds to be Turned Over to Administrative Agent...........................................24
6.5 Application of Proceeds......................................................................24
6.6 Code and Other Remedies......................................................................24
6.7 Registration Rights..........................................................................25
6.8 Waiver; Deficiency...........................................................................26
6.9 Application of Proceeds......................................................................26
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc..................................27
7.2 Duty of Administrative Agent.................................................................28
7.3 Execution of Financing Statements............................................................29
7.4 Authority of Administrative Agent............................................................29
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing........................................................................29
8.2 Notices......................................................................................30
8.3 No Waiver by Course of Conduct; Cumulative Remedies..........................................30
8.4 Enforcement Expenses, Indemnification........................................................30
8.5 Successors and Assigns.......................................................................30
8.6 Set-Off......................................................................................31
8.7 Counterparts.................................................................................31
8.8 Severability.................................................................................31
8.9 Integration..................................................................................31
8.10 GOVERNING LAW................................................................................31
8.11 Submission To Jurisdiction; Waivers..........................................................31
8.12 Acknowledgments..............................................................................32
8.13 WAIVERS OF JURY TRIAL........................................................................32
8.14 Section Headings.............................................................................32
8.15 Additional Grantors..........................................................................33
8.16 Releases.....................................................................................33
8.17 FCC Compliance...............................................................................33
</TABLE>
<PAGE> 4
AMENDED AND RESTATED GUARANTEE AND COLLATERAL
AGREEMENT, dated as of March 31, 2000, made by each of the
signatories hereto listed on SCHEDULE 7 attached hereto
(together with any other entity that may become a party
hereto as provided herein, the "GRANTORS"), in favor of THE
CHASE MANHATTAN BANK, as Administrative Agent (as defined
below) for (a) the banks and other financial institutions or
entities (the "LIN LENDERS") from time to time parties to
the Credit Agreement, dated as of March 3, 1998 (as amended,
supplemented or otherwise modified from time to time, the
"LIN CREDIT AGREEMENT"), among LIN HOLDINGS CORP., a
Delaware corporation ("HOLDINGS"), LIN TELEVISION
CORPORATION, a Delaware corporation (the "BORROWER"), the
LIN Lenders, THE CHASE MANHATTAN BANK, as administrative
agent (in such capacity, the "BORROWER ADMINISTRATIVE
AGENT"), swingline lender and issuing lender, The Bank of
New York, as syndication agent (in such capacity, the
"SYNDICATION AGENT"), and Bank of America, N.A., as
successor documentation agent to NATIONAL WESTMINSTER BANK
PLC (in such capacity, the "DOCUMENTATION AGENT") and (b)
the banks and other financial institutions or entities (the
"IHB LENDERS") from time to time parties to the Credit
Agreement dated as of March 31, 2000 (as amended,
supplemented or otherwise modified from time to time, the
"IHB CREDIT AGREEMENT"), among WWLP, INC., a Delaware
corporation ("IHB"), the IHB Lenders, THE CHASE MANHATTAN
BANK, as administrative agent (in such capacity, the "IHB
ADMINISTRATIVE AGENT") and syndication agent, and Bank of
America, N.A., as documentation agent.
SECTION 1. DEFINED TERMS
1.1 DEFINITIONS. (a) Unless otherwise defined herein, terms defined in
the LIN Credit Agreement and used herein shall have the meanings given to them
in the LIN Credit Agreement, and the following terms which are defined in the
Uniform Commercial Code in effect in the State of New York on the date hereof
are used herein as so defined: Accounts, Chattel Paper, Documents, Equipment,
Farm Products, Instruments and Inventory.
(b) The following terms shall have the following meanings:
"ADMINISTRATIVE AGENT": (i) when used solely in connection with the
LIN Credit Agreement, the Borrower Administrative Agent, (ii) when used solely
in
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connection with the IHB Credit Agreement, the IHB Administrative Agent, and
(iii) in all other cases, the Borrower Administrative Agent and the IHB
Administrative Agent, acting in both such capacities.
"AGREEMENT": this Amended and Restated Guarantee and Collateral
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
"BORROWER COMMITMENTS": the Commitments (as defined in the LIN Credit
Agreement).
"BORROWER GUARANTOR OBLIGATIONS": with respect to any Borrower
Guarantor, the collective reference to (i) the Borrower Obligations and (ii) all
obligations and liabilities of such Borrower Guarantor which may arise under or
in connection with this Agreement, or any other Loan Document to which such
Borrower Guarantor is a party, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of counsel
to the Administrative Agent or to the Borrower Secured Parties that are required
to be paid by such Borrower Guarantor pursuant to the terms of this Agreement or
any other Loan Document).
"BORROWER GUARANTORS": the collective reference to each Grantor other
than the Borrower.
"BORROWER OBLIGATIONS": the collective reference to the unpaid
principal of and interest on (including, without limitation, interest accruing
after the maturity of the Loans and Reimbursement Obligations and interest
accruing after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans, the Reimbursement Obligations and all other
obligations and liabilities of the Borrower to the Administrative Agent, the
Swingline Lender, the Issuing Lender or to any Lender (or, in the case of
Interest Rate Protection Agreements, any affiliate of any Lender), whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, the LIN Credit Agreement, any Notes, any other Loan Documents, the Letters
of Credit, any Interest Rate Protection Agreement entered into with any
counterparty thereto who was a Lender (or any affiliate of any Lender) at the
time such Interest Rate Protection Agreement was entered into or any other
document made, delivered or given in connection therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees, charges and disbursements of
counsel to the Administrative Agent, to the Swingline Lender, to the Issuing
Lender or to any Lender that are required to be paid by the Borrower pursuant to
the LIN Credit Agreement) or otherwise.
"BORROWER SECURED PARTIES": (i) the LIN Lenders, (ii) the
Administrative Agent, (iii) the Syndication Agent, (iv) the Documentation Agent,
(v) the Issuing Lender, (vi) each counterparty to an Interest Rate Protection
Agreement entered into with the
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3
Borrower if such counterparty was a Lender at the time the Interest Rate
Protection Agreement was entered into, (vii) the beneficiaries of each
indemnification obligation undertaken by any Grantor under any Loan Document and
(viii) the successors and assigns of each of the foregoing.
"CODE": the Uniform Commercial Code as from time to time in effect in
the State of New York.
"COLLATERAL": as defined in Section 3.
"COLLATERAL ACCOUNT": any collateral account established by the
Administrative Agent as provided in Section 6.1 or 6.4.
"COMMITMENTS": (i) in the case of the LIN Lenders, as defined in the
LIN Credit Agreement, and (ii) in the case of the IHB Lenders, as defined in the
IHB Credit Agreement.
"COMMODITY ACCOUNT": an account maintained by a Commodity Intermediary
in which a Commodity Contract is carried out for a Commodity Customer.
"COMMODITY CONTRACT": a commodity futures contract, an option on a
commodity futures contract, a commodity option or any other contract that, in
each case, is (a) traded on or subject to the rules of a board of trade that has
been designated as a contract market for such a contract pursuant to the federal
commodities laws or (b) traded on a foreign commodity board of trade, exchange
or market, and is carried on the books of a Commodity Intermediary for a
Commodity Customer.
"COMMODITY CUSTOMER": a Person for whom a Commodity Intermediary
carries a Commodity Contract on its books.
"COMMODITY INTERMEDIARY": (i) a Person who is registered as a futures
commission merchant under the federal commodities laws or (ii) a Person who in
the ordinary course of its business provides clearance or settlement services
for a board of trade that has been designated as a contract market pursuant to
federal commodities laws.
"COMMUNICATIONS ACT": the Communications Act of 1934, as amended.
"COPYRIGHTS": (i) all copyrights, in the United States or any other
country, whether registered or unregistered, or published or unpublished
(including, without limitation, those listed in SCHEDULE 6 ), all registrations
and recordings thereof, and all applications in connection therewith, including,
without limitation, all registrations, recordings and applications in the United
States Copyright Office, and (ii) the right to obtain all renewals thereof.
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"COPYRIGHT LICENSES": any written agreement naming any Grantor as
licensor or licensee (including, without limitation, those listed in SCHEDULE
6), granting any right under any Copyright, including, without limitation, the
grant of rights to manufacture, distribute, exploit and sell materials derived
from any Copyright.
"DEFAULT": either, (i) a "Default" as defined in the LIN Credit
Agreement or (ii) a "Default" as defined in the IHB Credit Agreement.
"ENTITLEMENT HOLDER": a Person identified in the records of a
Securities Intermediary as the Person having a Security Entitlement against the
Securities Intermediary. If a Person acquires a Security Entitlement by virtue
of Section 8-501(b)(2) or (3) of the Uniform Commercial Code, such Person is the
Entitlement Holder.
"EVENT OF DEFAULT": either, (i) an "Event of Default" as defined in
the LIN Credit Agreement or (ii) an "Event of Default" as defined in the IHB
Credit Agreement.
"FINANCIAL ASSET": (i) a Security, (ii) an obligation of a Person or a
share, participation or other interest in a Person or in property or an
enterprise of a Person, which is, or is of a type, dealt with in or traded on
financial markets, or which is recognized in any area in which it is issued or
dealt in as a medium for investment or (iii) any property that is held by a
Securities Intermediary for another Person in a Securities Account if the
Securities Intermediary has expressly agreed with the other Person that the
property is to be treated as a Financial Asset under Article 8 of the Uniform
Commercial Code. As the context requires, the term Financial Asset shall mean
either the interest itself or the means by which a person's claim to it is
evidenced, including a certificated or uncertificated Security, a certificate
representing a Security or a Security Entitlement.
"FIXTURES": all items of Equipment, whether now owned or hereafter
acquired, of any Grantor that become so related to particular real estate that
an interest in them arises under any real estate law applicable thereto.
"GENERAL INTANGIBLES": all "general intangibles" as such term is
defined in Section 9-106 of the Uniform Commercial Code in effect in the State
of New York on the date hereof and, in any event, including, without limitation,
with respect to any Grantor, all contracts, agreements, limited partnership
interests, limited liability company interests, instruments and indentures in
any form, and portions thereof, to which such Grantor is a party or under which
such Grantor has any right, title or interest or to which such Grantor or any
property of such Grantor is subject, as the same may from time to time be
amended, supplemented or otherwise modified, including, without limitation, (i)
all rights of such Grantor to receive moneys due and to become due to it
thereunder or in connection therewith, (ii) all rights of such Grantor to
damages arising thereunder and (iii) all rights of such Grantor to perform and
to exercise all remedies thereunder, in each case
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5
to the extent the grant by such Grantor of a security interest pursuant to this
Agreement in its right, title and interest in such contract, agreement,
instrument or indenture is not prohibited by such contract, agreement,
instrument or indenture without the consent of any other party thereto, would
not give any other party to such contract, agreement, instrument or indenture
the right to terminate its obligations thereunder, or is permitted with consent
if all necessary consents to such grant of a security interest have been
obtained from the other parties thereto (it being understood that the foregoing
shall not be deemed to obligate such Grantor to obtain such consents), PROVIDED
that the foregoing limitation shall not affect, limit, restrict or impair the
grant by such Grantor of a security interest pursuant to this Agreement in any
Receivable or any money or other amounts due or to become due under any such
contract, agreement, instrument or indenture.
"GUARANTOR OBLIGATIONS": the Borrower Guarantor Obligations and the
IHB Guarantor Obligations.
"GUARANTORS": the Borrower Guarantors and the IHB Guarantors.
"IHB COMMITMENTS": the Commitments (as defined in the IHB Credit
Agreement).
"IHB GUARANTOR OBLIGATIONS": with respect to any IHB Guarantor, the
collective reference to (i) the IHB Obligations and (ii) all obligations and
liabilities of such IHB Guarantor which may arise under or in connection with
this Agreement, or any other IHB Loan Document to which such IHB Guarantor is a
party, in each case whether on account of guarantee obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Administrative Agent or to the IHB
Secured Parties that are required to be paid by such IHB Guarantor pursuant to
the terms of this Agreement or any other IHB Loan Document).
"IHB GUARANTORS": the collective reference to each Grantor.
"IHB LOAN DOCUMENTS": the Loan Documents (as defined in the IHB Credit
Agreement).
"IHB NOTES": the Notes (as defined in the IHB Credit Agreement).
"IHB OBLIGATIONS": the collective reference to the unpaid principal of
and interest on (including, without limitation, interest accruing after the
maturity of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to IHB, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans and all other
obligations and liabilities of IHB to the Administrative Agent or to any IHB
Lender (or, in the case of Interest Rate Protection Agreements (as defined in
the IHB
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6
Credit Agreement), any affiliate of any IHB Lender), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the IHB Credit
Agreement, any IHB Notes, any Interest Rate Protection Agreement (as defined in
the IHB Credit Agreement) entered into with any counterparty thereto who was an
IHB Lender (or any affiliate of any IHB Lender) at the time such Interest Rate
Protection Agreement was entered into or any other document made, delivered or
given in connection therewith, whether on account of principal, interest, fees,
indemnities, costs, expenses (including, without limitation, all fees, charges
and disbursements of counsel to the Administrative Agent or to any IHB Lender
that is required to be paid by IHB pursuant to the IHB Credit Agreement) or
otherwise.
"IHB SECURED PARTIES": (i) the IHB Lenders, (ii) the Administrative
Agent, (iii) the syndication agent named in the IHB Credit Agreement, (iv) the
documentation agent named in the IHB Credit Agreement, (v) each counterparty to
an Interest Rate Protection Agreement (as defined in the IHB Credit Agreement)
entered into with IHB if such counterparty was an IHB Lender at the time the
Interest Rate Protection Agreement (as defined in the IHB Credit Agreement) was
entered into, (vi) the beneficiaries of each indemnification obligation
undertaken by any Grantor under any IHB Loan Document and (vii) the successors
and assigns of each of the foregoing.
"INTELLECTUAL PROPERTY": the collective reference to the Copyrights,
the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks and the
Trademark Licenses.
"INVESTMENT PROPERTY": all Securities (whether certificated or
uncertificated), Security Entitlements, Securities Accounts, Commodity Contracts
and Commodity Accounts of any Grantor, whether now owned or hereafter acquired
by any Grantor.
"ISSUERS": the collective reference to each issuer of a Pledged
Security.
"LICENSE": any Patent License, Trademark License, Copyright License or
other license or sublicense to which any Grantor is a party, including those
listed on SCHEDULE 6 (other than those license agreements in existence on the
date hereof and listed on SCHEDULE 6 and those license agreements entered into
after the date hereof, which by their terms prohibit assignment or a grant of a
security interest by such Grantor as licensee thereunder, including as provided
by Section 8.17 hereof).
"LOANS": (i) in the case of the LIN Lenders, as defined in the LIN
Credit Agreement, and (ii) in the case of the IHB Lenders, as defined in the IHB
Credit Agreement.
"OBLIGATIONS": (i) in the case of the Borrower, the Borrower
Obligations, (ii) in the case of IHB, the IHB Obligations, and (iii) in the case
of each Guarantor, its Guarantor Obligations.
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"PATENTS": (i) all letters patent of the United States or any other
country and all reissues and extensions thereof, including, without limitation,
any of the foregoing referred to in SCHEDULE 6, (ii) all applications for
letters patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, including, without limitation,
any of the foregoing referred to in SCHEDULE 6, and (iii) all rights to obtain
any reissues or extensions of the foregoing.
"PATENT LICENSE": all agreements, whether written or oral, providing
for the grant by or to any Grantor of any right to manufacture, use or sell any
invention covered in whole or in part by a Patent, including, without
limitation, any of the foregoing referred to in SCHEDULE 6.
"PLEDGED DEBT SECURITIES": (i) the debt securities listed opposite the
name of the applicable Grantor on SCHEDULE 2 hereto, (ii) any debt securities in
the future issued to such Grantor and (iii) the promissory notes and any other
instruments evidencing such debt securities.
"PLEDGED SECURITIES": the collective reference to the Pledged Debt
Securities and the Pledged Stock.
"PLEDGED STOCK": the shares of Capital Stock listed on SCHEDULE 2,
together with any other shares, stock certificates, options or rights of any
nature whatsoever in respect of the Capital Stock of any Person that may be
issued or granted to, or held by, any Grantor while this Agreement is in effect.
"PROCEEDS": all "proceeds" as such term is defined in Section 9-306(l)
of the Uniform Commercial Code in effect in the State of New York on the date
hereof and, in any event, shall include, without limitation, all dividends or
other income from the Pledged Securities, collections thereon or distributions
or payments with respect thereto.
"RECEIVABLE": any right to payment for goods sold or leased or for
services rendered, whether or not such right is evidenced by an Instrument or
Chattel Paper and whether or not it has been earned by performance (including,
without limitation, any Account).
"SECURED PARTIES": the Borrower Secured Parties and the IHB Secured
Parties.
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"SECURITIES": any obligations of an issuer or any shares,
participations or other interests in an issuer or in property or an enterprise
of an issuer which (i) are represented by a certificate representing a security
in bearer or registered form, or the transfer of which may be registered upon
books maintained for that purpose by or on behalf of the issuer, (ii) are one of
a class or series or by its terms is divisible into a class or series of shares,
participations, interests or obligations and (iii)(A) are, or are of a type,
dealt with or trade on securities exchanges or securities markets or (B) are a
medium for investment and by their terms expressly provide that they are a
security governed by Article 8 of the Uniform Commercial Code.
"SECURITIES ACCOUNT": an account to which a Financial Asset is or may
be credited in accordance with an agreement under which the Person maintaining
the account undertakes to treat the Person for whom the account is maintained as
entitled to exercise rights that comprise the Financial Asset.
"SECURITIES ACT": the Securities Act of 1933, as amended.
"SECURITY ENTITLEMENTS": the rights and property interests of an
Entitlement Holder with respect to a Financial Asset.
"SECURITY INTERMEDIARY": (i) a clearing corporation or (ii) a Person,
including a bank or broker, that in the ordinary course of its business
maintains securities accounts for others and is acting in that capacity.
"TRADEMARK LICENSE": any agreement, whether written or oral, providing
for the grant by or to any Grantor of any right to use any Trademark, including,
without limitation, any of the foregoing referred to in SCHEDULE 6.
"TRADEMARKS": (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, including, without limitation, any of the foregoing
referred to in SCHEDULE 6, and (ii) the right to obtain all renewals thereof.
"UNDELIVERED INSTRUMENTS": as defined in Section 4.8.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) The words "hereof", "herein",
"hereto" and "hereunder" and words of similar import when used in this Agreement
shall
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9
refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof, when used in relation to a Grantor, shall refer to such
Grantor's Collateral or the relevant part thereof.
(d) For the purposes of this Agreement, each reference to Collateral
or to any relevant type or item of Property constituting Collateral shall be
deemed to exclude any Station License.
SECTION 2. GUARANTEE
2.1 GUARANTEE OF BORROWER OBLIGATIONS. (a) Each of the Borrower
Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantees to the Administrative Agent, for the ratable benefit of the Borrower
Secured Parties and their respective successors, endorsees, transferees and
assigns, the prompt and complete payment and performance by the Borrower when
due (whether at the stated maturity, by acceleration or otherwise) of the
Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Borrower Guarantor hereunder and
under the other Loan Documents shall in no event exceed the amount which can be
guaranteed by such Borrower Guarantor under applicable federal and state laws
relating to the insolvency of debtors (after giving effect to the right of
contribution established in Section 2.1.1).
(c) Each Borrower Guarantor agrees that the Borrower Obligations may
at any time and from time to time exceed the amount of the liability of such
Borrower Guarantor hereunder without impairing the guarantee contained in this
Section 2.1 or affecting the rights and remedies of the Administrative Agent or
any Borrower Secured Party hereunder.
(d) The guarantee contained in this Section 2.1 shall remain in full
force and effect until all the Borrower Obligations and the obligations of each
Borrower Guarantor under the guarantee contained in this Section 2.1 shall have
been satisfied by payment in full, no Letter of Credit shall be outstanding and
the Borrower Commitments shall be terminated, notwithstanding that from time to
time during the term of the LIN Credit Agreement the Borrower may be free from
any Borrower Obligations.
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(e) No payment made by the Borrower, any of the Borrower Guarantors,
any other guarantor or any other Person or received or collected by the
Administrative Agent or any Borrower Secured Party from the Borrower, any of the
Borrower Guarantors, any other guarantor or any other Person by virtue of any
action or proceeding or any set-off or appropriation or application at any time
or from time to time in reduction of or in payment of the Borrower Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of
any Borrower Guarantor hereunder which shall, notwithstanding any such payment
(other than any payment made by such Borrower Guarantor in respect of the
Borrower Obligations or any payment received or collected from such Guarantor in
respect of the Borrower Obligations), remain liable for the Borrower Obligations
up to the maximum liability of such Borrower Guarantor hereunder until, subject
to Section 2.1.5, the Borrower Obligations are paid in full, no Letter of Credit
shall be outstanding and the Borrower Commitments are terminated.
2.1.1 RIGHT OF CONTRIBUTION. Each Borrower Guarantor hereby agrees
that to the extent that a Borrower Guarantor shall have paid more than its
proportionate share of any payment made hereunder, such Borrower Guarantor shall
be entitled to seek and receive contribution from and against any other Borrower
Guarantor hereunder which has not paid its proportionate share of such payment.
Each Borrower Guarantor's right of contribution shall be subject to the terms
and conditions of Section 2.1.2. The provisions of this Section 2.1.1 shall in
no respect limit the obligations and liabilities of any Borrower Guarantor to
the Administrative Agent and the Borrower Secured Parties, and each Borrower
Guarantor shall remain liable to the Administrative Agent and the Borrower
Secured Parties for the full amount guaranteed by such Borrower Guarantor
hereunder.
2.1.2 NO SUBROGATION. Notwithstanding any payment made by any Borrower
Guarantor hereunder or any set-off or application of funds of any Borrower
Guarantor by the Administrative Agent or any Borrower Secured Party, no Borrower
Guarantor shall be entitled to be subrogated to any of the rights of the
Administrative Agent or any Borrower Secured Party against the Borrower or any
other Borrower Guarantor or any collateral security or guarantee or right of
offset held by the Administrative Agent or any Borrower Secured Party for the
payment of the Borrower Obligations, nor shall any Borrower Guarantor seek or be
entitled to seek any contribution or reimbursement from the Borrower or any
other Borrower Guarantor in respect of payments made by such Borrower Guarantor
hereunder, until all amounts owing to the Administrative Agent and the Borrower
Secured Parties by the Borrower on account of the Borrower Obligations are paid
in full, no Letter of Credit shall be outstanding and the Borrower Commitments
are terminated. If any amount shall be paid to any Borrower Guarantor on account
of such subrogation rights at any time when all of the Borrower Obligations
shall not have been paid in full, such amount shall be held by such Borrower
Guarantor in trust for the Administrative Agent and the Borrower Secured
Parties, segregated from other funds of such Borrower Guarantor, and shall,
forthwith upon receipt by such Borrower Guarantor, be turned over to the
Administrative Agent in the
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exact form received by such Borrower Guarantor (duly indorsed by such Borrower
Guarantor to the Administrative Agent, if required), to be applied against the
Borrower Obligations, whether matured or unmatured, in accordance with the LIN
Credit Agreement.
2.1.3 AMENDMENTS, ETC. WITH RESPECT TO THE BORROWER OBLIGATIONS. Each
Borrower Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Borrower Guarantor and without
notice to or further assent by any Borrower Guarantor, any demand for payment of
any of the Borrower Obligations made by the Administrative Agent or any Borrower
Secured Party may be rescinded by the Administrative Agent or such Borrower
Secured Party and any of the Borrower Obligations continued, and the Borrower
Obligations, or the liability of any other Person upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Administrative Agent or any Borrower Secured Party, and the LIN Credit
Agreement and the other Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or appropriate
Borrower Secured Parties, as the case may be, in accordance with the LIN Credit
Agreement) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Administrative Agent or any
Borrower Secured Party for the payment of the Borrower Obligations may be sold,
exchanged, waived, surrendered or released in accordance with the terms of the
LIN Credit Agreement. Neither the Administrative Agent nor any Borrower Secured
Party shall have any obligation to protect, secure, perfect or insure any Lien
at any time held by it as security for the Borrower Obligations or for the
guarantee contained in this Section 2.1 or any property subject thereto.
2.1.4 GUARANTEE ABSOLUTE AND UNCONDITIONAL. Each Borrower Guarantor
waives any and all notice of the creation, renewal, extension or accrual of any
of the Borrower Obligations and notice of or proof of reliance by the
Administrative Agent or any Borrower Secured Party upon the guarantee contained
in this Section 2.1 or acceptance of the guarantee contained in this Section
2.1; the Borrower Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon the guarantee contained in this Section 2.1; and all
dealings between the Borrower and any of the Borrower Guarantors, on the one
hand, and the Administrative Agent and the Borrower Secured Parties, on the
other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon the guarantee contained in this Section 2.1. Each
Borrower Guarantor waives diligence, presentment, protest, demand for payment
and notice of default or nonpayment to or upon the Borrower or any of the
Borrower Guarantors with respect to the Borrower Obligations. Each Borrower
Guarantor understands and agrees that the guarantee contained in this Section
2.1 shall be construed as a continuing, absolute and
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unconditional guarantee of payment without regard to (a) the validity or
enforceability of the LIN Credit Agreement, any other Loan Document, any of the
Borrower Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
the Administrative Agent or any Borrower Secured Party, (b) any defense, set-off
or counterclaim (other than a defense of payment or performance) which may at
any time be available to or be asserted by the Borrower or any other Person
against the Administrative Agent or any Borrower Secured Party, other than
payment in full of the Borrower Obligations (except as set forth elsewhere in
this Agreement), or (c) any other circumstance whatsoever (with or without
notice to or knowledge of the Borrower or such Borrower Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrower for the Borrower Obligations, or of such Borrower
Guarantor under the guarantee contained in this Section 2.1, in bankruptcy or in
any other instance (other than a defense of payment or performance). When making
any demand hereunder or otherwise pursuing its rights and remedies hereunder
against any Borrower Guarantor, the Administrative Agent or any Borrower Secured
Party may, but shall be under no obligation to, make a similar demand on or
otherwise pursue such rights and remedies as it may have against the Borrower,
any other Borrower Guarantor or any other Person or against any collateral
security or guarantee for the Borrower Obligations or any right of offset with
respect thereto, and any failure by the Administrative Agent or any Borrower
Secured Party to make any such demand, to pursue such other rights or remedies
or to collect any payments from the Borrower, any other Borrower Guarantor or
any other Person or to realize upon any such collateral security or guarantee or
to exercise any such right of offset, or any release of the Borrower, any other
Borrower Guarantor or any other Person or any such collateral security,
guarantee or right of offset, shall not relieve any Borrower Guarantor of any
obligation or liability hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the
Administrative Agent or any Borrower Secured Party against any Borrower
Guarantor. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
2.1.5 REINSTATEMENT. The guarantee contained in this Section 2.1 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Borrower Obligations is rescinded or
must otherwise be restored or returned by the Administrative Agent or any
Borrower Secured Party upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Borrower or any Borrower Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or any Borrower Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
2.1.6 PAYMENTS. Each Borrower Guarantor hereby guarantees that
payments hereunder will be paid to the Administrative Agent without set-off or
<PAGE> 16
13
counterclaim in Dollars at the office of the Administrative Agent located at 270
Park Avenue, New York, New York 10017.
2.2 GUARANTEE OF IHB OBLIGATIONS. (a) Each of the IHB Guarantors
hereby, jointly and severally, unconditionally and irrevocably, guarantees to
the Administrative Agent, for the ratable benefit of the IHB Secured Parties and
their respective successors, endorsees, transferees and assigns, the prompt and
complete payment and performance by IHB when due (whether at the stated
maturity, by acceleration or otherwise) of the IHB Obligations.
(b) Anything herein or in any other IHB Loan Document to the contrary
notwithstanding, the maximum liability of each IHB Guarantor hereunder and under
the other IHB Loan Documents shall in no event exceed the amount which can be
guaranteed by such IHB Guarantor under applicable federal and state laws
relating to the insolvency of debtors (after giving effect to the right of
contribution established in Section 2.2.1).
(c) Each IHB Guarantor agrees that the IHB Obligations may at any time
and from time to time exceed the amount of the liability of such IHB Guarantor
hereunder without impairing the guarantee contained in this Section 2.2 or
affecting the rights and remedies of the Administrative Agent or any IHB Secured
Party hereunder.
(d) The guarantee contained in this Section 2.2 shall remain in full
force and effect until all the IHB Obligations and the obligations of each IHB
Guarantor under the guarantee contained in this Section 2.2 shall have been
satisfied by payment in full and the IHB Commitments shall be terminated,
notwithstanding that from time to time during the term of the IHB Credit
Agreement IHB may be free from any IHB Obligations.
(e) No payment made by IHB, any of the IHB Guarantors, any other
guarantor or any other Person or received or collected by the Administrative
Agent or any IHB Secured Party from IHB, any of the IHB Guarantors, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the IHB Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of any IHB Guarantor hereunder
which shall, notwithstanding any such payment (other than any payment made by
such IHB Guarantor in respect of the IHB Obligations or any payment received or
collected from such IHB Guarantor in respect of the IHB Obligations), remain
liable for the IHB Obligations up to the maximum liability of such IHB Guarantor
hereunder until, subject to Section 2.2.5, the IHB Obligations are paid in full
and the IHB Commitments are terminated.
2.2.1 RIGHT OF CONTRIBUTION. Each IHB Guarantor hereby agrees that to
the extent that an IHB Guarantor shall have paid more than its proportionate
share of any payment made hereunder, such IHB Guarantor shall be entitled to
seek and receive
<PAGE> 17
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contribution from and against any other IHB Guarantor hereunder which has not
paid its proportionate share of such payment. Each IHB Guarantor's right of
contribution shall be subject to the terms and conditions of Section 2.2.2. The
provisions of this Section 2.2.1 shall in no respect limit the obligations and
liabilities of any IHB Guarantor to the Administrative Agent and the IHB Secured
Parties, and each IHB Guarantor shall remain liable to the Administrative Agent
and the IHB Secured Parties for the full amount guaranteed by such IHB Guarantor
hereunder.
2.2.2 NO SUBROGATION. Notwithstanding any payment made by any IHB
Guarantor hereunder or any set-off or application of funds of any IHB Guarantor
by the Administrative Agent or any IHB Secured Party, no IHB Guarantor shall be
entitled to be subrogated to any of the rights of the Administrative Agent or
any IHB Secured Party against IHB or any other IHB Guarantor or any collateral
security or guarantee or right of offset held by the Administrative Agent or any
IHB Secured Party for the payment of the IHB Obligations, nor shall any IHB
Guarantor seek or be entitled to seek any contribution or reimbursement from IHB
or any other IHB Guarantor in respect of payments made by such IHB Guarantor
hereunder, until all amounts owing to the Administrative Agent and the IHB
Secured Parties by IHB on account of the IHB Obligations are paid in full and
the IHB Commitments are terminated. If any amount shall be paid to any IHB
Guarantor on account of such subrogation rights at any time when all of the IHB
Obligations shall not have been paid in full, such amount shall be held by such
IHB Guarantor in trust for the Administrative Agent and the IHB Secured Parties,
segregated from other funds of such IHB Guarantor, and shall, forthwith upon
receipt by such IHB Guarantor, be turned over to the Administrative Agent in the
exact form received by such IHB Guarantor (duly indorsed by such IHB Guarantor
to the Administrative Agent, if required), to be applied against the IHB
Obligations, whether matured or unmatured, in accordance with the IHB Credit
Agreement.
2.2.3 AMENDMENTS, ETC. WITH RESPECT TO THE IHB OBLIGATIONS. Each IHB
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any IHB Guarantor and without notice to or further
assent by any IHB Guarantor, any demand for payment of any of the IHB
Obligations made by the Administrative Agent or any IHB Secured Party may be
rescinded by the Administrative Agent or such IHB Secured Party and any of the
IHB Obligations continued, and the IHB Obligations, or the liability of any
other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or any
IHB Secured Party, and the IHB Credit Agreement and the other IHB Loan Documents
and any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the
Administrative Agent (or appropriate IHB Secured Parties, as the case may be, in
accordance with the IHB Credit Agreement) may deem advisable from time to time,
and any collateral security, guarantee
<PAGE> 18
15
or right of offset at any time held by the Administrative Agent or any IHB
Secured Party for the payment of the IHB Obligations may be sold, exchanged,
waived, surrendered or released in accordance with the terms of the IHB Credit
Agreement. Neither the Administrative Agent nor any IHB Secured Party shall have
any obligation to protect, secure, perfect or insure any Lien at any time held
by it as security for the IHB Obligations or for the guarantee contained in this
Section 2.2 or any property subject thereto.
2.2.4 GUARANTEE ABSOLUTE AND UNCONDITIONAL. Each IHB Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
IHB Obligations and notice of or proof of reliance by the Administrative Agent
or any IHB Secured Party upon the guarantee contained in this Section 2.2 or
acceptance of the guarantee contained in this Section 2.2; the IHB Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this Section 2.2; and all dealings between IHB and any of
the IHB Guarantors, on the one hand, and the Administrative Agent and the IHB
Secured Parties, on the other hand, likewise shall be conclusively presumed to
have been had or consummated in reliance upon the guarantee contained in this
Section 2.2. Each IHB Guarantor waives diligence, presentment, protest, demand
for payment and notice of default or nonpayment to or upon IHB or any of the IHB
Guarantors with respect to the IHB Obligations. Each IHB Guarantor understands
and agrees that the guarantee contained in this Section 2.2 shall be construed
as a continuing, absolute and unconditional guarantee of payment without regard
to (a) the validity or enforceability of the IHB Credit Agreement, any other IHB
Loan Document, any of the IHB Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any IHB Secured Party, (b)
any defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by IHB or any
other Person against the Administrative Agent or any IHB Secured Party, other
than payment in full of the IHB Obligations (except as set forth elsewhere in
this Agreement), or (c) any other circumstance whatsoever (with or without
notice to or knowledge of IHB or such IHB Guarantor) which constitutes, or might
be construed to constitute, an equitable or legal discharge of IHB for the IHB
Obligations, or of such IHB Guarantor under the guarantee contained in this
Section 2.2, in bankruptcy or in any other instance (other than a defense of
payment or performance). When making any demand hereunder or otherwise pursuing
its rights and remedies hereunder against any IHB Guarantor, the Administrative
Agent or any IHB Secured Party may, but shall be under no obligation to, make a
similar demand on or otherwise pursue such rights and remedies as it may have
against IHB, any other IHB Guarantor or any other Person or against any
collateral security or guarantee for the IHB Obligations or any right of offset
with respect thereto, and any failure by the Administrative Agent or any IHB
Secured Party to make any such demand, to pursue such other rights or remedies
or to collect any payments from IHB, any other IHB Guarantor or any other Person
or to realize upon any such collateral security or guarantee or to exercise any
such right of offset, or any release of IHB, any
<PAGE> 19
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other IHB Guarantor or any other Person or any such collateral security,
guarantee or right of offset, shall not relieve any IHB Guarantor of any
obligation or liability hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the
Administrative Agent or any IHB Secured Party against any IHB Guarantor. For the
purposes hereof "demand" shall include the commencement and continuance of any
legal proceedings.
2.2.5 REINSTATEMENT. The guarantee contained in this Section 2.2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the IHB Obligations is rescinded or must
otherwise be restored or returned by the Administrative Agent or any IHB Secured
Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of IHB or any IHB Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, IHB or any IHB Guarantor or any substantial part of its property,
or otherwise, all as though such payments had not been made.
2.2.6 PAYMENTS. Each IHB Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in Dollars at the office of the Administrative Agent located at 270
Park Avenue, New York, New York 10017.
SECTION 3. GRANT OF SECURITY INTEREST
Subject to Section 8.17 hereof, each Grantor hereby assigns and
transfers to the Administrative Agent, and hereby grants to the Administrative
Agent, its successors and assigns, for the ratable benefit of the Secured
Parties, a security interest in, all of the following property now owned or at
any time hereafter acquired by such Grantor or in which such Grantor now has or
at any time in the future may acquire any right, title or interest
(collectively, the "COLLATERAL"), as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of such Grantor's Obligations:
(a) all Accounts;
(b) all cash and cash accounts;
(c) all Chattel Paper;
(d) all Documents;
(e) all Equipment;
<PAGE> 20
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(f) all Fixtures
(g) all General Intangibles;
(h) all Instruments;
(i) all Intellectual Property;
(j) all Inventory;
(k) all Investment Property;
(l) all Pledged Securities;
(m) all books and records pertaining to the Collateral;
(n) all Undelivered Instruments; and
(o) to the extent not otherwise included, all Proceeds and products
of any and all of the foregoing and all collateral security and guarantees given
by any Person with respect to any of the foregoing.
"Collateral" shall not include, with respect to any Grantor, any
General Intangible, Intellectual Property or Investment Property to the extent
the grant by such Grantor of a security interest pursuant to this Agreement in
its rights under such General Intangible, Intellectual Property or Investment
Property, as the case may be, is prohibited or restricted by such General
Intangible, Intellectual Property or Investment Property, as the case may be,
and the consent of applicable Persons has not been obtained, PROVIDED that the
foregoing limitation shall not affect, limit, restrict or impair the grant by
such Grantor of a security interest pursuant to this Agreement in any Account or
any money or other amounts due or to become due under any such General
Intangible, Intellectual Property or Investment Property, as the case may be, to
the extent provided in Section 9-318 of the Code as in effect on the date
hereof.
<PAGE> 21
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SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Borrower Secured Parties to
enter into the LIN Credit Agreement and to induce the Borrower Secured Parties
to make their respective extensions of credit to the Borrower thereunder and to
induce the Administrative Agent and the IHB Secured Parties to enter into the
IHB Credit Agreement and to induce the IHB Secured Parties to make their
respective extensions of credit to IHB thereunder, each Grantor hereby
represents and warrants to the Administrative Agent and each Secured Party both
on the date hereof and (except in relation to any representation or warranty
that expressly relates to an earlier date, which representation and warranty
shall have been true and correct in all material respects as of such earlier
date) on the date of any borrowing under the LIN Credit Agreement or the IHB
Credit Agreement, as applicable, that:
4.1 REPRESENTATIONS IN LIN CREDIT AGREEMENT. In the case of each
Guarantor, the representations and warranties set forth in Section 4 of the LIN
Credit Agreement as they relate to such Guarantor or to the Loan Documents or
Transaction Documents to which such Guarantor is a party, each of which is
hereby incorporated herein by reference, are true and correct in all material
respects, and the Administrative Agent and each Secured Party shall be entitled
to rely on each of them as if they were fully set forth herein, PROVIDED that
each reference in each such representation and warranty to (a) the Borrower's
knowledge shall, for the purposes of this Section 4.1, be deemed to be reference
to each Guarantor's knowledge, (b) the term "Transaction Documents" is deemed to
include the "Transaction Documents" as defined in the IHB Credit Agreement and
(c) the phrase "transactions contemplated by this Agreement or the other Loan
Documents", to the term "Transactions" or to any similar term or description is
deemed to include the term "Transactions" as defined in the IHB Credit Agreement
and the other transactions contemplated by the IHB Credit Agreement.
4.2 TITLE. NO OTHER LIENS. Except for the security interest granted to
the Administrative Agent for the ratable benefit of the Secured Parties pursuant
to this Agreement and the other Liens expressly permitted to exist on the
Collateral by the LIN Credit Agreement, such Grantor owns each item of the
Collateral free and clear of any and all Liens or claims of others. No financing
statement or other public notice with respect to all or any part of the
Collateral is on file or of record in any public office, except such as have
been filed in favor of the Administrative Agent, for the ratable benefit of the
Secured Parties, pursuant to this Agreement or as are expressly permitted by the
LIN Credit Agreement.
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4.3 PERFECTED FIRST PRIORITY LIENS. The security interests granted
pursuant to this Agreement (a) that are capable of perfection pursuant to the
Code upon completion of the filings and other actions specified on SCHEDULE 3
(which, in the case of all filings and other documents referred to on said
Schedule, have been delivered to the Administrative Agent in completed and duly
executed form) will constitute valid perfected security interests in all of the
Collateral in favor of the Administrative Agent, for the ratable benefit of the
Secured Parties, as collateral security for such Grantor's Obligations,
enforceable in accordance with the terms hereof against all creditors of such
Grantor and any Persons purporting to purchase any Collateral from such Grantor
and (b) are prior to all other Liens on the Collateral in existence on the date
hereof except for Liens expressly permitted by the LIN Credit Agreement.
4.4 CHIEF EXECUTIVE OFFICE. On the date hereof, such Grantor's
jurisdiction of organization and the location of such Grantor's chief executive
office or sole place of business, as applicable, is specified on SCHEDULE 4.
4.5 INVENTORY AND EQUIPMENT. On the date hereof, the Inventory and the
Equipment (other than mobile goods) are kept at the locations listed on SCHEDULE
5.
4.6 FARM PRODUCTS. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
4.7 PLEDGED SECURITIES. (a) The shares of Pledged Stock pledged by
such Grantor hereunder and delivered to the Administrative Agent on or prior to
the date hereof constitute all the issued and outstanding shares of all classes
of the Capital Stock of each Issuer.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
(c) The Pledged Debt Securities pledged by such Grantor hereunder
delivered to the Administrative Agent on or prior to the date hereof constitute
all of the Pledged Debt Securities held by such Grantor.
(d) Each of the Pledged Debt Securities in existence on the date
hereof are set forth in SCHEDULE 2 and each of the Pledged Debt Securities
constitutes, to the knowledge of the Grantor that is the payee thereof, the
legal, valid and binding obligation of the obligor with respect thereto,
enforceable in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
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(e) Such Grantor is the record and beneficial owner of, and has good
and marketable title to, the Pledged Securities pledged by it hereunder, free of
any and all Liens or options in favor of, or claims of, any other Person, except
the security interest created by this Agreement.
4.8 RECEIVABLES. No amount payable to the Grantors under or in
connection with any Receivable is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Administrative Agent (collectively,
"UNDELIVERED INSTRUMENTS") in excess of $1,000,000.
4.9 INTELLECTUAL PROPERTY. (a) SCHEDULE 6 lists all Intellectual
Property owned or licensed by such Grantor in its own name on the date hereof.
(b) To such Grantor's knowledge, all material Intellectual Property is
on the date hereof valid, subsisting, unexpired, enforceable and has not been
abandoned.
(c) Except as set forth in SCHEDULE 6, none of the material
Intellectual Property is on the date hereof the subject of any licensing or
franchise agreement pursuant to which such Grantor is the licensor or
franchisor.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the validity of, or
such Grantor's rights in, any Intellectual Property in any respect that could
reasonably be expected to have a Material Adverse Effect.
(e) No action or proceeding is pending on the date hereof seeking to
limit, cancel or question the validity, or such Grantor's ownership, of any
Intellectual Property which, if adversely determined, would have a Material
Adverse Effect.
4.10 FINANCIAL CONDITION. (a) The audited consolidated financial
statements of Holdings and its consolidated Subsidiaries as of and for the
fiscal year ending December 31, 1999, reported on by PriceWaterhouseCoopers,
present fairly in all material respects the consolidated financial condition of
Holdings and its consolidated Subsidiaries and the results of operations and
cash flows as of such date and for such period. All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the period involved (except
as approved by the relevant firm of accountants and disclosed therein). The most
recent balance sheet referred to above reflects, as required by GAAP, any
material Guarantee Obligations, contingent liabilities and liabilities for
taxes, and any long-term leases and unusual forward or long-term commitments,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, in each case
as of the date of such balance sheet.
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(b) Since the date of the most recent audited financial statements
delivered pursuant to subsection 4.10(a) there has been no (i) development or
event which has had or could reasonably be expected to have a Material Adverse
Effect or (ii) sale, transfer or other disposition by any Grantor of any
material part of its business or Property.
4.11 SOLVENCY. Each Grantor is, and after giving effect to the
Transactions (as defined in the IHB Credit Agreement) and the Incurrence of all
Indebtedness and obligations being Incurred in connection therewith will be,
Solvent.
4.12 SECURITY DOCUMENTS. (a) This Agreement is effective to create in
favor of the Administrative Agent, for the benefit of the Secured Parties, a
legal, valid and enforceable security interest in the Collateral described
herein and the proceeds thereof. In the case of the Pledged Stock and the
Pledged Debt Securities, when stock certificates representing such Pledged Stock
or certificates representing such Pledged Debt Securities are delivered to the
Administrative Agent, or when financing statements in appropriate form are filed
in the offices specified on Schedule 3 hereto, and in the case of the other
Collateral described herein when financing statements in appropriate form are
filed in the offices specified on Schedule 3 hereto, this Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Grantors in such collateral and the proceeds thereof, as
security for the Obligations in each case prior and superior in right to any
other Person subject, except in the case of such Pledged Stock and the Pledged
Debt Securities, to Liens permitted by subsection 7.2 of the LIN Credit
Agreement.
(b) Each of the Mortgages is effective to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when the Mortgages are filed in the offices specified on Schedule
4.19(b) of the LIN Credit Agreement in accordance with subsection 10.17 of the
LIN Credit Agreement, each Mortgage shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the Grantors in the
Mortgaged Properties and the proceeds thereof, as security for the Obligations
in each case prior and superior in right to any other Person, subject to Liens
permitted by subsection 7.2 of the LIN Credit Agreement.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Administrative Agent and
the Secured Parties that, from and after the date of this Agreement until the
Obligations shall have been paid in full, no Letter of Credit shall be
outstanding and the Commitments shall have terminated:
5.1 COVENANTS IN LIN CREDIT AGREEMENT. In the case of each Guarantor,
such Guarantor shall take, or shall refrain from taking, as the case may be,
each action that
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is necessary to be taken or not taken, as the case may be, so that no Default or
Event of Default is caused by the failure to take such action or to refrain from
taking such action by such Guarantor or any of its Subsidiaries.
5.2 FINANCIAL STATEMENTS; CERTIFICATES; NOTICES. The Borrower shall
(a) furnish to the Administrative Agent and cause the Administrative Agent to
furnish to each IHB Lender that is not a LIN Lender, copies of all financial
statements, certificates, notices and other information that it is obliged to
provide to the Administrative Agent or to LIN Lenders pursuant to Section 6 of
the LIN Credit Agreement at the same time as such financial statements,
certificates, notices and other information are provided to the Administrative
Agent or the LIN Lenders, (b) afford each IHB Lender that is not a Lender the
same rights as afforded to the LIN Lenders under Section 6.6 of the LIN Credit
Agreement and (c) comply and cause each of its Subsidiaries to comply with
subsection 6.10 of the LIN Credit Agreement so that a perfected first priority
security interest in the Property referred to therein is created for the benefit
of the Secured Parties (and not just the LIN Lenders).
5.3 DELIVERY OF INSTRUMENTS AND CHATTEL PAPER. If the aggregate of all
amounts payable to the Grantors pursuant to Undelivered Instruments shall exceed
$5,000,000, such Undelivered Instruments, to the extent necessary to eliminate
such excess, shall be immediately delivered to the Administrative Agent duly
indorsed in a manner satisfactory to the Administrative Agent to be held as
Collateral pursuant to this Agreement.
5.4 INSURANCE. Each Grantor shall maintain insurance policies insuring
Inventory and Equipment pursuant to and in accordance with Section 6.5 of the
LIN Credit Agreement.
5.5 MAINTENANCE OF PERFECTED SECURITY INTEREST; FURTHER DOCUMENTATION.
(a) Such Grantor shall maintain the security interest created by this Agreement
as a perfected security interest having at least the priority described in
Section 4.3 and shall defend such security interest against the claims and
demands of all Persons whomsoever.
(b) Upon reasonable written request of the Administrative Agent, such
Grantor will furnish to the Administrative Agent, the LIN Lenders and the IHB
Lenders who are not also LIN Lenders from time to time statements and schedules
further identifying and describing the Collateral and such other reports in
connection with the Collateral as the Administrative Agent may reasonably
request, all in reasonable detail.
(c) At any time and from time to time, upon the written request of the
Administrative Agent and at the sole expense of such Grantor, such Grantor will
promptly and duly execute and deliver such further instruments and documents and
take such further actions as the Administrative Agent may reasonably request for
the purpose of
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obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted, including, without limitation, the filing of any
financing or continuation statements under the Code (or other similar laws) in
effect in any jurisdiction with respect to the security interests created
hereby.
5.6 CHANGES IN LOCATIONS, NAME, ETC. Such Grantor will not, except
upon not less than 15 days' prior written notice (or such shorter time as to
which the Administrative Agent may agree) to the Administrative Agent and
delivery to the Administrative Agent of all additional executed financing
statements and other documents reasonably requested by the Administrative Agent
to maintain the validity, perfection and priority of the security interests
provided for herein:
(a) permit any of the Inventory or Equipment (other than (i)
immaterial Inventory and Equipment and (ii) Inventory and Equipment in transit
in the ordinary course of business) to be kept at a location other than those
listed on SCHEDULE 5;
(b) change the location of its chief executive office or sole place of
business, as applicable, from that referred to in Section 4.4; or
(c) change its name, identity or corporate structure to such an extent
that any financing statement filed by the Administrative Agent in connection
with this Agreement would become misleading.
5.7 PLEDGED SECURITIES. (a) If such Grantor shall become entitled to
receive or shall receive any stock certificate (including, without limitation,
any certificate representing a stock dividend or a distribution in connection
with any reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights in respect of
the Capital Stock of any Issuer, whether in addition to, in substitution of, as
a conversion of, or in exchange for, any shares of the Pledged Stock, or
otherwise in respect thereof, such Grantor shall accept the same as the agent of
the Administrative Agent and the Secured Parties, hold the same in trust for the
Administrative Agent and the Secured Parties and deliver the same forthwith to
the Administrative Agent in the exact form received, duly indorsed by such
Grantor to the Administrative Agent, if required, together with an undated stock
power covering such certificate duly executed in blank by such Grantor to be
held by the Administrative Agent, subject to the terms hereof, as additional
collateral security for the Obligations. If an Event of Default shall have
occurred and be continuing, (i) any sums paid upon or in respect of the Pledged
Securities upon the liquidation or dissolution of any Issuer shall be paid over
to the Administrative Agent to be held by it hereunder as additional collateral
security for the Obligations and (ii) in case any distribution of capital shall
be made on or in respect of the Pledged Securities or any property shall be
distributed upon or with respect to the Pledged Securities pursuant to the
recapitalization or reclassification of the capital of any Issuer or pursuant to
the reorganization thereof, the property so distributed shall, unless
<PAGE> 27
24
otherwise subject to a perfected security interest in favor of the
Administrative Agent, be delivered to the Administrative Agent to be held by it
hereunder as additional collateral security for the Obligations. If any sums of
money or property so paid or distributed in respect of the Pledged Securities
shall be received by such Grantor, such Grantor shall, until such money or
property is paid or delivered to the Administrative Agent, hold such money or
property in trust for the Secured Parties, segregated from other funds of such
Grantor, as additional collateral security for the Obligations.
In the case of each Grantor which is an Issuer, such Issuer agrees
that (i) it will be bound by the terms of this Agreement relating to the Pledged
Securities issued by it and will comply with such terms insofar as such terms
are applicable to it, (ii) it will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 5.7(a) with
respect to the Pledged Securities issued by it and (iii) the terms of Sections
6.3(c) and 6.7 shall apply to it, MUTATIS MUTANDIS, with respect to all actions
that may be required of it pursuant to Section 6.3(c) or 6.7 with respect to the
Pledged Securities issued by it.
5.8 RECEIVABLES. (a) Other than in the ordinary course of business or
as otherwise permitted by the Loan Documents, such Grantor will not (i) grant
any extension of the time of payment of any Receivable, (ii) compromise or
settle any Receivable for less than the full amount thereof, (iii) release,
wholly or partially, any Person liable for the payment of any Receivable, (iv)
allow any credit or discount whatsoever on any Receivable or (v) amend,
supplement or modify any Receivable in any manner that could materially and
adversely affect the value thereof.
(b) Such Grantor will take all actions necessary to give notice
pursuant to the United States Assignment of Claims Act of 1940, as amended, or
such other analogous law if a material portion of the total amount of the
Receivables is owing from Governmental Authorities.
5.9 INTELLECTUAL PROPERTY. (a) Such Grantor (either itself or through
licensees) will (i) continue to use each material Trademark on each and every
trademark class of goods applicable to its current line as reflected in its
then-current catalogs, brochures and price lists in order to maintain such
Trademark in full force free from any claim of abandonment for non-use, (ii)
maintain as in the past the quality of products and services offered under each
material Trademark, (iii) use such Trademark with all appropriate notices of
registration and (iv) not (and not permit any licensee or sublicensee thereof
to) do any act or knowingly omit to do any act whereby any material Trademark
may become invalidated or impaired in any way.
(b) Such Grantor (either itself or through licensees) will not do any
act, or omit to do any act, whereby any material Patent may become forfeited,
abandoned or dedicated to the public.
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25
(c) Such Grantor (either itself or through licensees) will not (and
will not permit any licensee or sublicensee thereof to) do any act or knowingly
omit to do any act whereby any material portion of the Copyrights may become
invalidated. Such Grantor will not (either itself or through licensees) do any
act whereby any material portion of the Copyrights may fall into the public
domain.
(d) Such Grantor (either itself or through licensees) will not do any
act that knowingly uses a material Intellectual Property to infringe the
Intellectual Property rights of a third party.
(e) Such Grantor will notify the Administrative Agent and the Secured
Parties immediately if it knows, or has reason to know, that any application or
registration relating to any material Patent, Copyright or Trademark may become
abandoned or dedicated to the public, or of any adverse determination or
development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office, the U.S. Copyright Office or any court or tribunal in any
country) regarding such Grantor's ownership of, or the validity of, any material
Intellectual Property or such Grantor's right to register the same or to own and
maintain the same.
(f) Whenever such Grantor, either by itself or through any agent,
employee, licensee or designee, shall file an application for any Patent or
Trademark with the United States Patent and Trademark Office or any Copyright in
the U.S. Copyright Office or any similar office or agency in any other country
or any political subdivision thereof, such Grantor shall report such filing to
the Administrative Agent within five Business Days after the last day of the
fiscal quarter in which such filing occurs. Upon written request of the
Administrative Agent, such Grantor shall execute and deliver, and have recorded,
any and all agreements, instruments, documents, and papers as the Administrative
Agent may reasonably request to evidence the Administrative Agent's security
interest in any such Copyright, Patent or Trademark and the goodwill and general
intangibles of such Grantor relating thereto or represented thereby.
(g) Such Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office, the U.S. Copyright Office or any similar office or agency
in any other country or any political subdivision thereof, to maintain each
registration of the material Intellectual Property, including, without
limitation, filing of applications for renewal, affidavits of use and affidavits
of incontestability.
(h) In the event that any material Intellectual Property is infringed,
misappropriated or diluted by a third party, such Grantor shall (i) take such
actions as such Grantor shall reasonably deem appropriate under the
circumstances to protect such
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26
Intellectual Property and (ii) if such Intellectual Property is of material
economic value, promptly notify the Administrative Agent and the Secured Parties
after it learns thereof.
SECTION 6. REMEDIAL PROVISIONS
6.1 CERTAIN MATTERS RELATED TO RECEIVABLES. (a) The Administrative
Agent hereby authorizes each Grantor to collect such Grantor's Receivables, and
the Administrative Agent may curtail or terminate said authority at any time
after the occurrence and during the continuance of an Event of Default. If
required by the Administrative Agent at any time after the occurrence and during
the continuance of an Event of Default, any payments of Receivables, when
collected by any Grantor, (i) shall be forthwith (and, in any event, within two
Business Days) deposited by such Grantor in the exact form received, duly
indorsed by such Grantor to the Administrative Agent if required, in a
Collateral Account maintained under the sole dominion and control of the
Administrative Agent, subject to withdrawal by the Administrative Agent for the
account of the Secured Parties only as provided in Section 6.5, and (ii) until
so turned over, shall be held by such Grantor in trust for the Administrative
Agent and the Secured Parties, segregated from other funds of such Grantor. Each
such deposit of Proceeds of Receivables shall be accompanied by a report
identifying in reasonable detail the nature and source of the payments included
in the deposit.
(b) At the Administrative Agent's request, each Grantor shall deliver
to the Administrative Agent, all original and other documents evidencing, and
relating to, the agreements and transactions which gave rise to the then
existing Receivables, including, without limitation, all original orders,
invoices and shipping receipts.
6.2 COMMUNICATIONS WITH OBLIGORS, GRANTORS REMAIN LIABLE. (a) The
Administrative Agent in its own name or in the name of others may at any time
after the occurrence and during the continuance of an Event of Default
communicate with obligors under the Receivables to verify with them to the
Administrative Agent's reasonable satisfaction the existence, amount and terms
of any Receivables.
(b) Upon the request of the Administrative Agent at any time after the
occurrence and during the continuance of an Event of Default, each Grantor shall
notify obligors on the Receivables that the Receivables have been assigned to
the Administrative Agent for the ratable benefit of the Secured Parties and that
payments in respect thereof shall be made directly to the Administrative Agent.
<PAGE> 30
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(c) Anything herein to the contrary notwithstanding, each Grantor
shall remain liable under each of the Receivables to observe and perform all the
conditions and obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise thereto. Neither the
Administrative Agent nor any Secured Party shall have any obligation or
liability under any Receivable (or any agreement giving rise thereto) by reason
of or arising out of this Agreement or the receipt by the Administrative Agent
or any Secured Party of any payment relating thereto, nor shall the
Administrative Agent or any Secured Party be obligated in any manner to perform
any of the obligations of any Grantor under or pursuant to any Receivable (or
any agreement giving rise thereto) to make any payment, to make any inquiry as
to the nature or the sufficiency of any payment received by it or as to the
sufficiency of any performance by any party thereunder, to present or file any
claim, to take any action to enforce any performance or to collect the payment
of any amounts which may have been assigned to it or to which it may be entitled
at any time or times.
6.3 PLEDGED SECURITIES. (a) Unless an Event of Default shall have
occurred and be continuing and the Administrative Agent shall have given notice
to the relevant Grantor of the Administrative Agent's intent to exercise its
corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted
to receive all cash dividends paid in respect of the Pledged Stock and all
payments made in respect of the Pledged Debt Securities, in each case paid in
the normal course of business of the relevant Issuer, to the extent permitted in
the LIN Credit Agreement, and to exercise all voting and corporate rights with
respect to the Pledged Securities; PROVIDED, HOWEVER, that no vote shall be cast
or corporate right exercised or other action taken which, in the Administrative
Agent's reasonable judgment would impair the Collateral or which would be
inconsistent with or result in any violation of any provision of the LIN Credit
Agreement, this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give written notice of its intent to exercise such
rights to the relevant Grantor or Grantors, (i) the Administrative Agent shall
have the right to receive any and all cash dividends, payments or other Proceeds
paid in respect of the Pledged Securities and make application thereof to the
Obligations in accordance with Section 6.9, and (ii) any or all of the Pledged
Securities shall be registered in the name of the Administrative Agent or its
nominee, and the Administrative Agent or its nominee may thereafter exercise (x)
all voting, corporate and other rights pertaining to such Pledged Securities at
any meeting of shareholders of the relevant Issuer or Issuers or otherwise and
(y) any and all rights of conversion, exchange and subscription and any other
rights, privileges or options pertaining to such Pledged Securities as if it
were the absolute owner thereof (including, without limitation, the right to
exchange at its discretion any and all of the Pledged Securities upon the
merger, consolidation, reorganization, recapitalization or other fundamental
change in the corporate structure of any Issuer, or upon the exercise by any
Grantor or the Administrative Agent of any right, privilege or option pertaining
to
<PAGE> 31
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such Pledged Securities, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Securities with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Administrative Agent may determine), all without liability
except to account for property actually received by it, but the Administrative
Agent shall have no duty to any Grantor to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in so
doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of any
Pledged Securities pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Administrative Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Securities directly to the Administrative Agent.
6.4 PROCEEDS TO BE TURNED OVER TO ADMINISTRATIVE AGENT. In addition to
the rights of the Administrative Agent and the Secured Parties specified in
Section 6.1 with respect to payments of Receivables, if an Event of Default
shall occur and be continuing, all Proceeds received by any Grantor consisting
of cash, checks and other near-cash items shall be held by such Grantor in trust
for the Administrative Agent and the Secured Parties, segregated from other
funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be
turned over to the Administrative Agent in the exact form received by such
Grantor (duly indorsed by such Grantor to the Administrative Agent, if
required). All Proceeds received by the Administrative Agent hereunder shall be
held by the Administrative Agent in a Collateral Account maintained under its
sole dominion and control. All Proceeds while held by the Administrative Agent
in a Collateral Account (or by such Grantor in trust for the Administrative
Agent and the Secured Parties) shall continue to be held as collateral security
for all the Obligations and shall not constitute payment thereof until applied
as provided in Section 6.5.
6.5 APPLICATION OF PROCEEDS. At any time after the occurrence and
during the continuance of an Event of Default, at the Administrative Agent's
election, the Administrative Agent may apply all or any part of Proceeds held in
any Collateral Account in payment of the Obligations in accordance with Section
6.9, and any part of such funds which the Administrative Agent elects not so to
apply and deems not required as collateral security for the Obligations shall be
paid over from time to time by the Administrative Agent to the Borrower or to
whomsoever may be lawfully entitled to receive the same. Any balance of such
Proceeds remaining after the Obligations shall have been paid in full, no
Letters of Credit shall be outstanding and the Commitments shall have terminated
shall be paid over to the Borrower or to whomsoever may be lawfully entitled to
receive the same.
<PAGE> 32
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6.6 CODE AND OTHER REMEDIES. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Secured Parties, may
exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the Code or any other applicable law. Without limiting the generality of the
foregoing, the Administrative Agent, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon any Grantor or any other
Person (all and each of which demands, defenses, advertisements and notices are
hereby waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do any
of the foregoing), in one or more parcels at public or private sale or sales, at
any exchange, broker's board or office of the Administrative Agent or any
Secured Party or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. The Administrative Agent
or any Secured Party shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption in any Grantor, which right or equity is hereby waived and
released. Each Grantor further agrees, at the Administrative Agent's request, to
assemble the Collateral and make it available to the Administrative Agent at
places which the Administrative Agent shall reasonably select, whether at such
Grantor's premises or elsewhere. The Administrative Agent shall apply the net
proceeds of any action taken by it pursuant to this Section 6.6, after deducting
all reasonable costs and expenses of every kind incurred in connection therewith
or incidental to the care or safekeeping of any of the Collateral or in any way
relating to the Collateral or the rights of the Administrative Agent and the
Secured Parties hereunder, including, without limitation, reasonable attorneys'
fees and disbursements, to the payment in whole or in part of the Obligations,
in accordance with Section 6.9, and only after such application and after the
payment by the Administrative Agent of any other amount required by any
provision of law, including, without limitation, Section 9-504(l)(c) of the
Code, need the Administrative Agent account for the surplus, if any, to any
Grantor. To the extent permitted by applicable law, each Grantor waives all
claims, damages and demands it may acquire against the Administrative Agent or
any Secured Party arising out of the exercise by them of any rights hereunder.
If any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition.
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6.7 REGISTRATION RIGHTS. (a) If the Administrative Agent shall
determine to exercise its right to sell any or all of the Pledged Securities
pursuant to Section 6.6, and if in the opinion of the Administrative Agent it is
necessary or advisable to have the Pledged Securities, or that portion thereof
to be sold, registered under the provisions of the Securities Act, the relevant
Grantor will cause the Issuer thereof to (i) execute and deliver, and cause the
directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as may
be, in the opinion of the Administrative Agent, necessary or advisable to
register the Pledged Securities, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering of
the Pledged Securities, or that portion thereof to be sold, and (iii) make all
amendments thereto and/or to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Each Grantor agrees to
cause such Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the Administrative Agent shall designate
and to make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the provisions
of Section 11(a) of the Securities Act.
(b) Each Grantor recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Securities, by reason
of certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged
Securities for the period of time necessary to permit the Issuer thereof to
register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if such Issuer would agree to do so.
(c) Each Grantor agrees to use its best efforts to do or cause to be
done all such other acts as may be necessary to make such sale or sales of all
or any portion of the Pledged Securities pursuant to this Section 6.7 valid and
binding and in compliance with any and all other applicable Requirements of Law.
Each Grantor further agrees that a breach of any of the covenants contained in
this Section 6.7 will cause irreparable injury to the Administrative Agent and
the Secured Parties, that the Administrative Agent and the Secured Parties have
no adequate remedy at law in respect of such breach and, as a
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consequence, that each and every covenant contained in this Section 6.7 shall be
specifically enforceable against such Grantor, and such Grantor hereby waives
and agrees not to assert any defenses against an action for specific performance
of such covenants except for a defense that no Event of Default has occurred
under the LIN Credit Agreement.
6.8 WAIVER; DEFICIENCY. Each Grantor waives and agrees not to assert
any rights or privileges which it may acquire under Section 9-112 of the Code.
Each Grantor shall remain liable for any deficiency if the proceeds of any sale
or other disposition of the Collateral are insufficient to pay its Obligations
and the fees and disbursements of any attorneys employed by the Administrative
Agent or any Secured Party to collect such deficiency.
6.9 APPLICATION OF PROCEEDS. The Administrative Agent shall apply the
proceeds of any collection or sale of the Collateral, as well as any Collateral
consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by the
Administrative Agent (in its capacity as such hereunder, under the LIN
Credit Agreement or any other Loan Document or under the IHB Credit
Agreement or any other IHB Loan Document) in connection with such
collection or sale or otherwise in connection with this Agreement or any of
the Obligations, including all court costs and the fees and expenses of its
agents and legal counsel, the repayment of all advances made by the
Administrative Agent hereunder, under the LIN Credit Agreement or any other
Loan Document or under the IHB Credit Agreement or any other IHB Loan
Document on behalf of any Grantor and any other costs or expenses incurred
in connection with the exercise of any right or remedy hereunder, under the
LIN Credit Agreement or any other Loan Document or under the IHB Credit
Agreement or any other IHB Loan Document;
SECOND, to the payment in full of the Obligations (the amounts so
applied to be distributed pro rata among the Secured Parties pro rata in
accordance with the amounts of the Obligations owed to them on the date of
any such distribution); and
THIRD, to the Grantors, their successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
The Administrative Agent shall have absolute discretion as to the time
of application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Administrative Agent
(including pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of the Administrative Agent or of the officer making
the sale shall be a sufficient discharge to the
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purchaser or purchasers of the Collateral so sold and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Administrative Agent or such officer or be
answerable in any way for the misapplication thereof.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 ADMINISTRATIVE AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT, ETC. (a)
Each Grantor hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of such Grantor and in the name of such Grantor or in its
own name, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action to the extent permitted by law and to execute any
and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement, and, without limiting the generality
of the foregoing, each Grantor hereby gives the Administrative Agent the power
and right, on behalf of such Grantor, without notice to or assent by such
Grantor, to do any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Receivable or with respect to any other Collateral and file any claim or
take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the Administrative Agent for the purpose of
collecting any and all such moneys due under any Receivable or with respect
to any other Collateral whenever payable;
(ii) in the case of any Copyright, Patent or Trademark, execute,
deliver and have recorded, any and all agreements, instruments, documents
and papers as the Administrative Agent may request to evidence the
Administrative Agent's and the Secured Parties' security interest in such
Copyright, Patent or Trademark and the goodwill and general intangibles of
such Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the
premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in Section 6.6
or 6.7, any endorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral; and
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(v) (1) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Administrative Agent or as the Administrative
Agent shall direct; (2) ask or demand for, collect, and receive payment of
and receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral; (3)
sign and indorse any invoices, freight or express bills, bills of lading,
storage or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with any of the
Collateral; (4) commence and prosecute any suits, actions or proceedings at
law or in equity in any court of competent jurisdiction to collect the
Collateral or any portion thereof and to enforce any other right in respect
of any Collateral; (5) defend any suit, action or proceeding brought
against such Grantor with respect to any Collateral; (6) settle, compromise
or adjust any such suit, action or proceeding and, in connection therewith,
give such discharges or releases as the Administrative Agent may deem
appropriate; (7) assign any Copyright, Patent or Trademark (along with the
goodwill of the business to which any such Copyright, Patent or Trademark
pertains), throughout the world for such term or terms, on such conditions,
and in such manner, as the Administrative Agent shall in its sole
discretion determine, and (8) generally, sell, transfer, pledge and make
any agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Administrative Agent were the
absolute owner thereof for all purposes, and do, at the Administrative
Agent's option and such Grantor's expense, at any time, or from time to
time, all acts and things which the Administrative Agent deems necessary to
protect, preserve or realize upon the Collateral and the Administrative
Agent's and the Secured Parties' security interests therein and to effect
the intent of this Agreement, all as fully and effectively as such Grantor
might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the
Administrative Agent agrees that it will not exercise any rights under the power
of attorney provided for in this Section 7.1(a) unless an Event of Default shall
have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
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(c) The expenses of the Administrative Agent incurred in connection
with actions undertaken as provided in this Section 7.1, together with interest
thereon at a rate per annum equal to the rate per annum at which interest would
then be payable under the LIN Credit Agreement on past due Loans that are or
would be ABR Loans (whether or not any ABR Loans are then outstanding), from the
date of payment by the Administrative Agent to the date reimbursed by the
relevant Grantor, shall be payable by such Grantor to the Administrative Agent
on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
7.2 DUTY OF ADMINISTRATIVE AGENT. The Administrative Agent's sole duty
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Administrative Agent deals
with similar property for its own account. Neither the Administrative Agent, any
Secured Party nor any of their respective officers, directors, employees or
agents shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of any Grantor or any
other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof. The powers conferred on the Administrative Agent
and the Secured Parties hereunder are solely to protect the Administrative
Agent's and the Secured Parties' interests in the Collateral and shall not
impose any duty upon the Administrative Agent or any Secured Party to exercise
any such powers. The Administrative Agent and the Secured Parties shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to any Grantor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.
7.3 EXECUTION OF FINANCING STATEMENTS. Pursuant to Section 9-402 of
the Code and any other applicable law, each Grantor authorizes the
Administrative Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of such Grantor in such form and in such offices as the Administrative
Agent reasonably determines appropriate to perfect the security interests of the
Administrative Agent under this Agreement. A photographic or other reproduction
of this Agreement shall be sufficient as a financing statement or other filing
or recording document or instrument for filing or recording in any jurisdiction.
7.4 AUTHORITY OF ADMINISTRATIVE AGENT. Each Grantor acknowledges that
the rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by
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the Administrative Agent of any option, voting right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this
Agreement shall, as between the Administrative Agent and the Secured Parties, be
governed by the LIN Credit Agreement or the IHB Credit Agreement, as applicable,
and by such other agreements with respect thereto as may exist from time to time
among them, but, as between the Administrative Agent and the Grantors, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Secured Parties with full and valid authority so to act or refrain from
acting, and no Grantor shall be under any obligation, or entitlement, to make
any inquiry respecting such authority.
SECTION 8. MISCELLANEOUS
8.1 AMENDMENTS IN WRITING. Subject to the terms of the LIN Credit
Agreement and the IHB Credit Agreement, the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified by a
written instrument executed by each affected Grantor and the Administrative
Agent, PROVIDED that, subject to the terms of the LIN Credit Agreement and the
IHB Credit Agreement, any provision of this Agreement imposing obligations on
any Grantor may be waived by the Administrative Agent and the Secured Parties in
a written instrument executed by the Administrative Agent.
8.2 NOTICES. All notices, requests and demands to or upon the
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in Section 10.2 of the LIN Credit Agreement; PROVIDED that any such
notice, request or demand to or upon any Guarantor shall be addressed to such
Guarantor at its notice address set forth on SCHEDULE 1.
8.3 NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE REMEDIES. Neither the
Administrative Agent nor any Secured Party shall by any act (except by a written
instrument pursuant to Section 8.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Secured Party, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Administrative Agent or any Secured Party of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which the Administrative Agent or such Secured Party would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
<PAGE> 39
36
8.4 ENFORCEMENT EXPENSES, INDEMNIFICATION. (a) Each Guarantor agrees
to pay or reimburse each Secured Party and the Administrative Agent for all its
costs and expenses incurred in collecting against such Guarantor under the
guarantees contained in Section 2 or otherwise enforcing or preserving any
rights under this Agreement and the other Loan Documents to which such Guarantor
is a party, including, without limitation, the reasonable fees and disbursements
of counsel to the Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the Administrative Agent
and the Secured Parties harmless from, any and all liabilities with respect to,
or resulting from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by
this Agreement.
(c) Each Guarantor agrees to pay, and to save the Administrative Agent
and the Secured Parties harmless from any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement to the
same extent the Borrower would be required to do so pursuant to Section 9.7 of
the LIN Credit Agreement or Section 9.7 of the IHB Credit Agreement, as
applicable.
(d) The agreements in this Section 8.4 shall survive repayment of the
Obligations and all other amounts payable under the LIN Credit Agreement and the
other Loan Documents and under the IHB Credit Agreement and the other IHB Loan
Documents.
8.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
Administrative Agent and the Secured Parties and their successors and assigns;
PROVIDED that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent.
<PAGE> 40
37
8.6 SET-OFF. In addition to any rights and remedies of the
Administrative Agent and the Secured Parties provided by law, the Administrative
Agent and each Secured Party shall have the right, without prior notice to any
Grantor, any such notice being expressly waived by each Grantor to the extent
permitted by applicable law, upon any amount becoming due and payable by any
Grantor hereunder (whether at the stated maturity, by acceleration or otherwise)
to set off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Secured Party or any branch or agency thereof to or for
the credit or the account of such Grantor. The Administrative Agent and each
Secured Party agrees promptly to notify the relevant Grantor and (if applicable)
the Administrative Agent after any such set off and application made by the
Administrative Agent or such Secured Party, PROVIDED that the failure to give
such notice shall not affect the validity of such setoff and application.
8.7 COUNTERPARTS. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower, IHB and the
Administrative Agent.
8.8 SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.9 INTEGRATION. This Agreement, the other Loan Documents, the IHB
Credit Agreement and the other IHB Loan Documents represent the entire agreement
of the Grantors, the Administrative Agent and the Secured Parties with respect
to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties of the Administrative Agent or any
Secured Party relative to subject matter hereof and thereof not expressly set
forth or referred to herein, in the other Loan Documents, in the IHB Credit
Agreement or in the other IHB Loan Documents.
8.10 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.11 SUBMISSION TO JURISDICTION; WAIVERS. Each Grantor hereby
irrevocably and unconditionally:
<PAGE> 41
38
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents or to the IHB
Credit Agreement and the other IHB Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to such Grantor at its
address referred to in Section 8.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section 8.11 any special, exemplary, punitive or consequential damages.
8.12 ACKNOWLEDGMENTS. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement, the other Loan Documents, the IHB Credit Agreement
and the other IHB Loan Documents;
(b) neither the Administrative Agent nor any Secured Party has any
fiduciary relationship with or duty to any Grantor arising out of or in
connection with this Agreement, any of the other Loan Documents, the IHB Credit
Agreement or the other IHB Loan Documents, and the relationship between
Administrative Agent and Secured Parties, on one hand, and the Grantors, on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby, by the other Loan Documents,
by the IHB Credit Agreement or by the other IHB Loan Documents or otherwise
exists by virtue
<PAGE> 42
39
of the transactions contemplated hereby among the Secured Parties or among the
Grantors and the Secured Parties.
8.13 WAIVERS OF JURY TRIAL. EACH GRANTOR, THE ADMINISTRATIVE AGENT AND
THE LIN LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT, THE IHB CREDIT AGREEMENT AND THE OTHER IHB LOAN DOCUMENTS AND FOR ANY
COUNTERCLAIM THEREIN.
8.14 SECTION HEADINGS. The Section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
8.15 ADDITIONAL GRANTORS. Each Subsidiary of the Borrower that is
required to become a party to this Agreement pursuant to Section 6.10 of the LIN
Credit Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of an Assumption Agreement in the form
of Annex I hereto.
8.16 RELEASES. (a) At such time as the Loans, the Reimbursement
Obligations and the other Obligations shall have been paid in full, the
Commitments have been terminated and no Letters of Credit shall be outstanding,
the Collateral shall be released from the Liens created hereby, and this
Agreement and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Grantor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Grantors. At the
request and sole expense of any Grantor following any such termination, the
Administrative Agent shall deliver to such Grantor any Collateral held by the
Administrative Agent hereunder, and execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Grantor in a transaction permitted by the LIN Credit
Agreement, then the Administrative Agent, at the request and sole expense of
such Grantor, shall execute and deliver to such Grantor all releases or other
documents reasonably necessary or desirable for the release of the Liens created
hereby on such Collateral. At the request and sole expense of the Borrower, a
Guarantor shall be released from its obligations hereunder in the event that all
the Capital Stock of such Guarantor shall be sold, transferred or otherwise
disposed of in a transaction permitted by the LIN Credit Agreement.
8.17 FCC COMPLIANCE. (a) Notwithstanding anything to the contrary
contained herein or in any other agreement, instrument, or document executed in
connection herewith, no party hereto shall take any actions hereunder that would
<PAGE> 43
40
constitute or result in a transfer or assignment of any Station License, permit
or authorization or a change of control over such Station License, permit or
authorization requiring the prior approval of the FCC without first obtaining
such prior approval of the FCC. In addition, the parties acknowledge that the
voting rights of the Pledged Stock shall remain with the relevant Grantor
thereof even upon the occurrence and during the continuance of an Event of
Default until the FCC shall have given its prior consent to the exercise of
stockholder rights by a purchaser at a public or private sale of such Pledged
Stock or the exercise of such rights by the Administrative Agent or by a
receiver, trustee, conservator or other agent duly appointed pursuant to
applicable law.
(b) If an Event of Default shall have occurred, each Grantor shall
take any action which the Administrative Agent may request in the exercise of
its rights and remedies under this Agreement in order to transfer or assign the
Collateral to the Administrative Agent or to such one or more third parties as
the Administrative Agent may designate, or to a combination of the foregoing. To
enforce the provisions of this Section 8.17, the Administrative Agent is
empowered to seek from the FCC and any other Governmental Authority, to the
extent required, consent to or approval of any involuntary transfer of control
of any entity whose Collateral is subject to this Agreement for the purpose of
seeking a bona fide purchaser to whom control ultimately will be transferred.
Each Grantor agrees to cooperate with any such purchaser and with the
Administrative Agent in the preparation, execution and filing of any forms and
providing any information that may be necessary or helpful in obtaining the
FCC's consent to the assignment to such purchaser of the Collateral. Each
Grantor hereby agrees to consent to any such voluntary or involuntary transfer
after and during the continuation of an Event of Default and, without limiting
any rights of the Administrative Agent under this Agreement, to authorize the
Administrative Agent to nominate a trustee or receiver to assume control of the
Collateral, subject only to required judicial, FCC or other consents required by
Governmental Authorities, in order to effectuate the transactions contemplated
by this Section 8.17. Such trustee or receiver shall have all the rights and
powers as provided to it by law or court order, or to the Administrative Agent
under this Agreement. Each Grantor shall cooperate fully in obtaining the
consent of the FCC and the approval or consent of each other Governmental
Authority required to effectuate the foregoing.
(c) Without limiting the obligations of any Grantor hereunder in any
respect, each Grantor further agrees that if such Grantor, upon or after the
occurrence of an Event of Default, should fail or refuse for any reason
whatsoever, without limitation, including any refusal to execute any application
necessary or appropriate to obtain any governmental consent necessary or
appropriate for the exercise of any right of the Administrative Agent hereunder,
such Grantor agrees that such application may be executed on such Grantor's
behalf by the clerk of any court of competent jurisdiction without notice to
such Grantor pursuant to court order.
<PAGE> 44
41
(d) In connection with this Section 8.17, the Administrative Agent
shall be entitled to rely in good faith upon an opinion of outside FCC counsel
of the Administrative Agent's choice with respect to any such assignment or
transfer, whether or not the advice rendered is ultimately determined to have
been accurate.
<PAGE> 45
42
IN WITNESS WHEREOF, each of the undersigned has caused this Amended
and Restated Guarantee and Collateral Agreement to be duly executed and
delivered as of the date first above written.
LIN TELEVISION CORPORATION
By: ______________________
Name:
Title:
LIN HOLDINGS CORP.
By: ______________________
Name:
Title:
EACH OF THE OTHER SIGNATORIES LISTED
ON SCHEDULE 7 ATTACHED HERETO
By: ______________________
Name:
Title:
<PAGE> 46
43
THE CHASE MANHATTAN BANK, as
Administrative Agent
By: _______________________
Name:
Title:
<PAGE> 47
SCHEDULE 1
NOTICE ADDRESS OF EACH GUARANTOR
<PAGE> 48
SCHEDULE 2
DESCRIPTION OF PLEDGED STOCK
DESCRIPTION OF PLEDGED DEBT SECURITIES
<PAGE> 49
SCHEDULE 3
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
UNIFORM COMMERCIAL CODE FILINGS
[List each office where a financing statement is to be filed]
COPYRIGHT; PATENT AND TRADEMARK FILINGS
[List all filings]
ACTIONS WITH RESPECT TO PLEDGED STOCK AND PLEDGED DEBT SECURITIES
<PAGE> 50
SCHEDULE 4
JURISDICTION OF ORGANIZATION
AND LOCATION OF CHIEF EXECUTIVE OFFICE
GRANTOR JURISDICTION
------- ------------
Location for all Grantors:
<PAGE> 51
SCHEDULE 5
LOCATION OF INVENTORY AND EQUIPMENT
GRANTOR LOCATIONS
------- ---------
<PAGE> 52
SCHEDULE 6
COPYRIGHTS AND COPYRIGHT LICENSES
PATENTS AND PATENT LICENSES
TRADEMARKS AND TRADEMARK LICENSES
<PAGE> 53
SCHEDULE 7
SIGNATORIES
<PAGE> 1
Exhibit 10.29
OPTION AGREEMENT
OPTION AGREEMENT, dated December 10, 1999 by and between Gary R. Chapman,
having an address at 79 Ridge Road, Bristol, Rhode Island 02809 ("GRC"), and LIN
Television Corporation, a Delaware corporation with an address at 4 Richmond
Square, Providence, Rhode Island 02906 ("LIN").
WITNESSETH:
WHEREAS, GRC owns 100 shares of common stock, par value $.01 per share, of
WWLP Holdings, Inc., a Delaware corporation ("WWLP HOLDINGS"), constituting all
of the issued and outstanding capital stock of WWLP Holdings; and
WHEREAS, WGRC, Inc., a Delaware corporation ("WGRC"), an indirect wholly
owned subsidiary of WWLP Holdings, has entered into an Asset Exchange Agreement,
dated December 10, 1999, by and among WGRC, Benedek Broadcasting Corporation and
Benedek License Corporation (the "ASSET EXCHANGE AGREEMENT"), and LIN has
guaranteed the obligations of WGRC under such Asset Exchange Agreement; and
WHEREAS, WWLP Holdings and its subsidiaries have entered into certain
financing arrangements with The Chase Manhattan Bank in connection with the
transactions contemplated by the Asset Exchange Agreement (the "CHASE
FINANCING"), and LIN has provided (i) a guaranty of the obligations of WWLP,
Inc., a Delaware corporation and a direct wholly owned subsidiary of WWLP
Holdings, and (ii) a deficiency payment agreement relating to the obligations of
WGRC, in connection with the Chase Financing; and
WHEREAS, LIN has provided cash collateral in support of WGRC's letter of
credit to Benedek issued as a deposit under the Asset Exchange Agreement, and
LIN has entered into an escrow agreement in connection therewith; and
WHEREAS, to induce LIN to enter into the arrangements described above, GRC
has agreed to grant to LIN an option to purchase all issued and outstanding
shares of Common Stock of WWLP Holdings;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
Section 1. PURCHASE OPTION. GRC hereby grants to LIN or its permitted
assignee the option (the "PURCHASE OPTION") to purchase all of the issued and
outstanding shares of capital stock of WWLP Holdings now or hereafter held by
GRC (the "SHARES"), for the purchase price set forth in Section 3 of this
Agreement. The Purchase Option shall be exercisable at LIN's sole election at
any time during the period (the "OPTION PERIOD") beginning on the Closing Date
(as defined in the Asset Exchange
<PAGE> 2
Agreement) and ending at midnight, E.S.T., on the first anniversary of such
Closing Date. To exercise the Purchase Option, LIN must provide written notice
of exercise to GRC at his address set forth above prior to expiration of the
Option Period. The date on which GRC receives such notice is referred to herein
as the "Exercise Date." The Option Period may be extended on terms to be
mutually agreed by the parties hereto, acting in good faith.
Section 2. REGULATORY APPROVALS; OPTION CLOSING DATE.
(a) Each of the parties hereto shall use its reasonable best efforts and
shall cooperate in preparing and filing (i) appropriate notifications under the
Hart-Scott-Rodino Antirust Improvements Act of 1976, as amended (the "HSR Act")
and (ii) an application (the "FCC Application") with the Federal Communications
Commission (the "FCC") to obtain the FCC's consent to the transfer of control to
LIN (or its subsidiary) of all FCC permits and authorizations that are required
to be held in connection with the operation of the television station WWLP (TV)
(the "FCC Consent"), as soon as practicable following the Exercise Date.
(b) The Closing hereunder shall be held on a date (the "Option Closing
Date") specified by LIN that is not later than ten (10) days following the date
on which (i) all periods provided by statute or FCC regulations for filing any
requests for administrative or judicial review, reconsideration, or appeal or
stay of the FCC Consent, or for the FCC to set aside the FCC Consent on its own
motion, have expired and (ii) the waiting period under the HSR Act applicable to
the purchase and sale of the Shares shall have expired or been terminated.
Section 3. PURCHASE PRICE. The purchase price payable by LIN to GRC for the
Shares on the Option Closing Date shall be $100.
Section 4. REPRESENTATIONS AND WARRANTIES OF LIN.
(a) LIN is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and is duly qualified to do
business as a foreign corporation where such qualification is necessary, except
for those jurisdictions where the failure to be so qualified would not,
individually or in the aggregate, have a material adverse effect on LIN's
ability to perform its obligations under this Agreement. LIN has the full
corporate power and authority to enter into and perform the terms of this
Agreement and to carry out the transactions contemplated hereby.
(b) The execution and delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby, have been duly and validly
authorized by all necessary actions of LIN (none of which actions has been
modified or rescinded and all of which actions are in full force and effect),
including approval of its board of directors. This Agreement has been duly
executed and delivered by LIN and constitutes a valid and binding agreement and
obligation of LIN, enforceable against LIN in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws of general applicability
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<PAGE> 3
relating to or affecting creditors' rights generally and by the application of
general principles of equity.
(c) The execution and delivery by LIN of this Agreement does not, and the
consummation by LIN of the transactions contemplated hereby and compliance by
LIN with the provisions hereof will not, result in any violation of, or default
(with or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any obligation or the loss
of a benefit under, or result in the creation of any lien upon any of the
properties or assets of LIN under, (i) any provision of the certificate of
incorporation or by-laws of LIN, (ii) any loan or credit agreement, note, bond,
mortgage, indenture, lease or other material contract or agreement, or any
material permit, concession, franchise or license applicable to LIN or (iii)
assuming all the consents, filings and registrations referred to in Section 2
are made and obtained, any law, statute, governmental regulation or order (a
"Law"), the violation of which would reasonably be expected to result in a
material adverse effect on LIN's ability to perform its obligations under this
Agreement.
(d) Except as contemplated by Section 2 of this Agreement, no filing or
registration with, or authorization, consent or approval of, any governmental
authority is required in connection with the execution and delivery of this
Agreement by LIN or is necessary for the consummation of the transactions
contemplated by this Agreement by LIN.
Section 5. REPRESENTATIONS AND WARRANTIES OF GRC.
(a) GRC has the legal capacity, power and authority to enter into and
perform the terms of this Agreement and to carry out the transactions
contemplated hereby.
(b) This Agreement has been duly executed and delivered by GRC and
constitutes a valid and binding agreement and obligation of GRC, enforceable
against GRC in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights generally and
by the application of general principles of equity.
(c) The execution and delivery by GRC of this Agreement does not, and the
consummation by GRC of the transactions contemplated hereby and compliance by
GRC with the provisions hereof will not, result in any violation of, or default
(with or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any obligation or the loss
of a benefit under, any other material agreement to which GRC is a party.
(d) Except as contemplated by Section 2 of this Agreement, no filing or
registration with, or authorization, consent or approval of, any governmental
authority is required by in connection with the execution and delivery of this
Agreement by GRC or
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<PAGE> 4
is necessary for the consummation of the transactions contemplated by this
Agreement by GRC.
(e) Schedule 5(e) to this Agreement sets forth, with respect to each of
WWLP Holdings, WWLP and WGRC, (i) the number of shares of authorized capital
stock of such corporation, (ii) the number of shares of capital stock of such
corporation outstanding, and (iii) the name of each holder of shares of capital
stock of such corporation. Each of WWLP Holdings and its subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, and has all requisite corporate power and authority to
conduct its business as currently proposed to be conducted. Except as reflected
on Schedule 5(e), WWLP Holdings has no subsidiaries and does not own, directly
or indirectly, any shares of capital stock or other security of, or any material
investment in, any other entity.
(f) Except for obligations incurred in connection with their respective
incorporation, and the negotiation and execution of the Asset Exchange
Agreement, the letter of credit contemplated thereby, an Assignment and
Assumption Agreement entered into in connection with the Asset Exchange
Agreement, and commitments in connection with the Chase Financing, neither WGRC,
WWLP, nor WWLP Holdings has incurred any obligation or liability or engaged in
any business or activity of any kind.
Section 6. CONTROL OF WWLP HOLDING'S OPERATIONS. Notwithstanding any other
provision of this Agreement, prior to the Option Closing Date, control of
WWLP(TV)'s television broadcast operations shall remain with GRC. GRC and LIN
acknowledge and agree that neither LIN nor any of its employees, affiliates,
agents or representatives, directly or indirectly, shall, or have any right to
control, direct or otherwise supervise, or attempt to control, direct or
otherwise supervise, such broadcast and other operations, it being understood
that supervision of all programs, equipment, operations and other activities of
such broadcast and other operations shall be the sole responsibility, and at all
times prior to the Option Closing Date remain within the complete control and
discretion of GRC.
Section 7. REASONABLE BEST EFFORTS. Upon the terms and subject to the
conditions set forth in this Agreement, including, without limitation, exercise
of the Purchase Option, each of the parties agrees to use its reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other parties in doing, all things
reasonably necessary, proper or advisable, in each case under all Laws, to
consummate and make effective, in the most expeditious manner practicable
following the Exercise Date, the transactions contemplated by this Agreement,
including (i) the obtaining of all necessary actions, waivers, consents,
licenses and approvals from governmental authorities and the making of all
necessary registrations and filings (including filings with governmental
authorities) and the taking of all reasonable steps as may be necessary to
obtain an approval, waive or license from, or to avoid an action or proceeding
by, and governmental authority, (ii) the defending of any lawsuit or other legal
proceedings, whether judicial or administrative, challenging this Agreement,
including seeking to have any stay or temporary restraining order entered by any
court or other governmental authority vacated or reversed and (iii) the
execution
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<PAGE> 5
and delivery of any additional instruments reasonably necessary to consummate
the transactions contemplated by this Agreement.
Section 8. CONDUCT OF BUSINESS. During the period from the date hereof to
the Option Closing Date, GRC, shall, and shall cause WWLP Holdings and its
subsidiaries to, taking into account any matters that may arise that are
attributable to the pendency of the transactions contemplated by the Asset
Exchange Agreement, conduct the business of WWLP Holdings and its subsidiaries
and, when applicable, the business of WWLP(TV), only in the ordinary course,
consistent with past practice. In addition, from and after the date hereof to
the Option Closing Date, GRC shall not permit WWLP Holdings and its subsidiaries
to, without the prior written consent of LIN (which consent shall not be
unreasonably withheld or delayed):
(a) amend its Certificate of Incorporation, By-Laws or other comparable
charter or organizational documents or merge with or into or consolidate with
any other person;
(b) issue, sell, pledge, dispose of or encumber, or authorize or propose
the issuance, sale, pledge, disposition or encumbrance of, any shares of, or
securities convertible or exchangeable for, or options, puts, warrants, calls,
commitments or rights of any kind to acquire, any of its capital stock or
subdivide or in any way reclassify any shares of its capital stock or change or
agree to change in any manner the rights of its outstanding capital stock;
(c) declare, set aside or pay any dividend or other distribution with
respect to any shares of any class or series of capital stock of WWLP Holdings;
split, combine or reclassify any shares of any class or series of capital stock
of WWLP Holdings or its subsidiaries; or redeem, purchase or otherwise acquire
directly or indirectly any shares of any class or series of capital stock of
WWLP Holdings, or any instrument or security which consists of or includes a
right to acquire such shares;
(d) organize any new subsidiary or acquire any capital stock of, or equity
or ownership interest in, any other entity;
(e) adopt a plan of complete or partial liquidation, dissolution, merger,
consolidation, restructuring, recapitalization or other reorganization of WWLP
Holdings or any of its subsidiaries;
(f) take any action that would or is reasonably likely to materially impair
the ability of GRC or LIN to consummate the Purchase Option in accordance with
the terms hereof or materially delay such consummation; and
(g) authorize any of, or commit or agree to take any of, the actions
referred to in paragraphs (a) through (f) above.
Section 9. RESTRICTIONS ON TRANSFER OF SHARES, PROXIES AND
NON-INTERFERENCE. Beginning on the date hereof and ending on the last date of
the Option Period, GRC shall not, directly or indirectly, (i) offer for sale,
sell, transfer, tender,
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<PAGE> 6
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of his Shares or any interest therein; (ii) grant any
proxies or powers of attorney, deposit any Shares into a voting trust or enter
into a voting agreement with respect to any Shares; or (iii) take any action
that would make any representation or warranty of GRC contained herein untrue or
incorrect or have the effect of preventing or disabling GRC from performing his
obligations under this Agreement.
Section 10. PARTIES IN INTEREST. This Agreement shall be binding upon an
inure solely to the benefit of each party hereto and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other Person any
rights, benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
Section 11. ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, such remedy being in addition to any
other remedy to which any party is entitled at law or in equity.
Section 12. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with the laws of the State of New York, regardless of
the laws that might otherwise govern under the applicable principles of
conflicts of law.
Section 13. EXPENSES AND TRANSFER TAXES. LIN shall pay all expenses
incurred in connection with this Agreement and in the preparation for the
consummation of the transactions provided for herein. Without limiting the
generality of the foregoing, LIN shall pay (a) any sales (including, without
limitation, bulk sales), use, documentary, stamp, gross receipts, registration,
transfer, conveyance, excise, recording, license and other similar Taxes and
fees ("Transfer Taxes") applicable to, imposed upon or arising out of the
transactions contemplated hereby whether now in effect or hereinafter adopted
and regardless of which party such Transfer Tax is imposed upon, (b) any FCC
filing fees incurred in connection with the assignment of the FCC licenses
relating to WWLP(TV), and (c) any fees and expenses incurred in connection with
any HSR Filings.
Section 14. BENEFIT AND ASSIGNMENT. Except as hereinafter specifically
provided in this Section 14, no party hereto shall assign this Agreement, in
whole or in part, whether by operation of law or otherwise, without the prior
written consent of the other party hereto; and any purported assignment contrary
to the terms hereof shall be null, void and of no force and effect. LIN may
assign all of its rights and obligations hereunder to any direct or indirect
wholly owned subsidiary of its, provided that no such assignment shall relieve
LIN of any of its obligation under this Agreement. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns as permitted hereunder.
6
<PAGE> 7
Section 15. ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior oral or written agreement, commitments or understandings with respect to
such matters. No amendment, modification or discharge of this Agreement shall be
valid or binding unless set forth in writing and duly executed by the party or
parties against whom enforcement of the amendment, modification or discharge is
sought.
Section 16. SEVERABILITY. If any party of any provision of this Agreement
or any other contract, agreement, document or writing given pursuant to or in
connection with this Agreement shall be invalid or unenforceable under
applicable law, such party shall be ineffective to the extent of such invalidity
or unenforceability only, without in any way affecting the remaining parts of
such provisions or the remaining provisions of said contract, agreement,
document or writing.
[SIGNATURES BEGIN ON NEXT PAGE]
7
<PAGE> 8
IN WITNESS WHEREOF, each of the parties hereto has, or has caused, this
Agreement to be duly executed and delivered as of the day and year first above
written.
_________________________
Gary R. Chapman
LIN TELEVISION CORPORATION
By: ______________________
Name:
Title:
8
<PAGE> 1
EXHIBIT 10.30
MANAGEMENT SERVICES AGREEMENT
THIS AGREEMENT ("Agreement"), made the 31st day of March, 2000, by and
between WGRC, LLC, a Delaware limited liability company authorized to do
business in the Commonwealth of Massachusetts, hereinafter referred to as
"Licensee" and LIN Television Corporation, a Delaware corporation, hereinafter
referred to as "Service Agent."
WHEREAS, Licensee is the licensee of television broadcast station WWLP,
Springfield, Massachusetts (the "Station") pursuant to authorization granted by
the Federal Communications Commission ("FCC") in application file number
BALCT-19991217ABS, granted March 22, 2000; and
WHEREAS, Licensee desires to enter into this Agreement with Service
Agent whereby Service Agent will agree to provide certain management services
with respect to the Station, subject to (i) the direction and control of the
Licensee, (ii) the specific terms and conditions of the Agreement, and (iii) the
rules and regulations of the FCC; and
WHEREAS, the parties hereto wish to set forth the terms and conditions
of the relationship herein.
NOW, THEREFORE, in consideration of the mutual covenants herein
expressed and other lawful and valuable consideration, the parties hereto agree
as follows:
1. RETENTION OF SERVICE AGENT. Subject to the terms and conditions
hereof, the Licensee hereby retains the Service Agent to be the sole provider of
management services for the Station, and the Service Agent accepts and assumes
said engagement.
2. TERM. This Agreement shall commence on the date on which Licensee
consummates its acquisition of the license and assets of the Station pursuant to
prior FCC
<PAGE> 2
approval. The term of the Agreement shall be eighteen (18) months; provided
however, that Licensee may, at its sole discretion and upon written notice given
to Service Agent not less than sixty (60) days prior to the end of the initial
term, elect to renew the Agreement for one additional eighteen (18) month term.
3. COMPENSATION FOR MANAGEMENT SERVICES. As compensation for the
management services provided hereunder, Licensee shall pay Service Agent as
follows:
Initial term $125,000 per year
Renewal term (if any) $150,000 per year
Payment shall be due on the first business day of the calendar month to which
the payment applies and may be pro-rated for any calendar month that does not
fall entirely within the term of the Agreement.
4. LICENSEE DIRECTION AND CONTROL. All actions taken by the Service
Agent pursuant to this Agreement shall be subject to the supervision, direction
and control of the Licensee.
5. LICENSEE'S EMPLOYEES. The Licensee shall employ the General Manager
of the Station and at least one other Station employee, who shall report
directly to the Licensee.
6. MANAGEMENT SERVICES. Subject to the qualifications and restrictions
stated elsewhere in this Agreement, the Service Agent shall manage all aspects
of the business and day-to-day operation of the Station in accordance with sound
business practice in the commercial television industry and with all applicable
rules and regulations of the FCC and other governmental authorities. In
exercising its responsibilities hereunder, the Service Agent shall, among other
things:
2
<PAGE> 3
(a) assist the Licensee in the development of an annual
operating budget, an annual capital expenditure budget, and any changes in such
budgets as may from time to time be deemed necessary or prudent;
(b) make recommendations to the Licensee concerning Station
programming and advertising policies, personnel policies, program format
changes, the acquisition and broadcast of new programming, and the cancellation,
termination, or significant modification of existing programming, all of which
matters shall require the prior approval of the Licensee before being
implemented;
(c) administer the sale of commercial advertising on the
Station and the collection and receipt of revenues therefrom;
(d) provide all bookkeeping, accounting, office administration
services, and engineering services appropriate to the operation of a commercial
television station;
(e) insure that the Station's transmission facilities and
other assets are properly insured and are maintained in good working order
consistent with sound engineering and business practice;
(f) act on behalf of the Station in dealing with third-party
vendors and in making expenditures that are necessary or appropriate in the
ordinary course of the Station's business; provided, however, that the Service
Agent shall have no authority to execute contracts for the Licensee; and
provided further that the signature of an authorized employee of the Licensee
shall be required on a check for any expenditure that (i) is not in the ordinary
course of business or (ii) exceeds the sum of $25,000;
(g) insure that the Station is operated in compliance with all
applicable rules and regulations of the FCC;
3
<PAGE> 4
(h) prepare for the Licensee's approval and submission to the
FCC all written applications, reports, correspondence, and other submissions to
the FCC that are necessary or appropriate to the conduct of the Station's
operation and to Licensee's compliance with its obligations as a licensee of the
FCC; and
(i) take all steps necessary or appropriate to carry out the
foregoing responsibilities in a commercially reasonable manner.
7. SERVICE AGENT'S EMPLOYEES. No employee of the Service Agent assigned
exclusively to perform services for the Licensee under this Agreement shall be
hired for or terminated from such assignment without the Licensee's prior
approval. All employees of the Service Agent who are engaged in providing
services to the Licensee shall report to the General Manager of the Station with
respect to their Station-related activities.
8. STATION ACCOUNTS. All receipts and expenditures related to the
operation of the Station, except for salary, benefit, and other personnel
expenses for the Service Agent's employees, shall be deposited to and drawn from
the Station's accounts and not the Service Agent's accounts. Employees of the
Service Agent who are approved for signature authority by the Licensee may be
authorized signatories on the Station's accounts (subject to the restriction
provided in paragraph 6(f)).
9. ASSIGNMENT. Neither the Licensee nor the Service Agent shall assign
this Agreement or any of its rights hereunder without the prior written consent
of the other party, except that the Service Agent may assign the Agreement to an
entity under common control with the Service Agent.
4
<PAGE> 5
10. TERMINATION.
(A) Breach. If either party hereto shall commit a material breach of
this Agreement, the other party shall give written notice setting forth the
details of the breach to the other party. The party charged with a breach shall
have thirty (30) days after receipt of such written notice to cure unless there
is a dispute as to the claim made or unless the breach cannot be cured within
such thirty (30) day period. In the event that the breach is not cured, cannot
be cured or is disputed, the dispute shall be submitted promptly by the parties
to the American Arbitration Association for determination in accordance with its
rules. The Association's determination shall be binding upon both parties.
(B) Insolvency. If at any time during the term of this Agreement either
party shall file voluntarily or involuntarily a petition in bankruptcy or
insolvency or for reorganization or for the appointment of a receiver or trustee
and such petition is not discharged within thirty (30) days after filing; or if
either party makes an assignment for the benefit of creditors or petitions for
or enters into an arrangement or permits this Agreement to be taken under any
writ of attachment or execution; then the other party shall have the right to
terminate this Agreement upon ten (10) days' written notice.
(C) Termination.
(1) The Licensee may terminate this Agreement at will at any
time upon ten (10) days written notice to Service Agent.
(2) This Agreement shall automatically terminate upon
consummation of a sale of the Station to any party pursuant to a long-form FCC
application for assignment of license or transfer of control.
5
<PAGE> 6
11. RELATIONSHIP. Nothing herein contained shall be deemed to have
created or be construed as having created a joint venture or partnership
relationship between the Licensee and Service Agent. At all times during the
performance of its duties and obligations arising hereunder, the Service Agent
shall be deemed to be acting as an independent contractor.
12. MISCELLANEOUS.
(A) Any and all notices, consents or directives by either party
intended for the other shall be sent by registered or certified mail, return
receipt requested, to the address that each party shall designate in writing to
the other for such purposes.
(B) This Agreement may not be amended or modified except by a writing
executed by each of the parties.
(C) This Agreement shall be governed by the laws of the State of
Delaware.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day
and year first above written.
WGRC, LLC,
by
WGRC, INC., its sole managing member
By: ______________________________
Gary R. Chapman
President
LIN TELEVISION CORPORATION
By: ______________________________
Denise M. Parent
Vice President - Deputy General Counsel
6
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM LIN
HOLDINGS CORP. CONSOLIDATED STATEMENTS OF OPERATIONS AND CONSOLIDATED BALANCE
SHEET AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH LIN HOLDINGS
CORP. QUARTERLY REPORT ON FORM 10-Q DATED MARCH 31, 1999.
</LEGEND>
<CIK> 0001062707
<NAME> LIN HOLDINGS CORP.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-1999
<CASH> 11,123
<SECURITIES> 0
<RECEIVABLES> 45,180
<ALLOWANCES> 1,554
<INVENTORY> 0
<CURRENT-ASSETS> 77,951
<PP&E> 188,278
<DEPRECIATION> 35,094
<TOTAL-ASSETS> 2,053,402
<CURRENT-LIABILITIES> 62,853
<BONDS> 543,931
0
0
<COMMON> 0
<OTHER-SE> 477,410
<TOTAL-LIABILITY-AND-EQUITY> 2,053,402
<SALES> 0
<TOTAL-REVENUES> 59,274
<CGS> 0
<TOTAL-COSTS> 54,983
<OTHER-EXPENSES> 19,804
<LOSS-PROVISION> (55)
<INTEREST-EXPENSE> 19,774
<INCOME-PRETAX> (15,513)
<INCOME-TAX> (7,053)
<INCOME-CONTINUING> (22,566)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (34,026)
<EPS-BASIC> 0
<EPS-DILUTED> 0
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM LIN
TELEVISION CORPORATION CONSOLIDATED STATEMENTS OF OPERATIONS AND CONSOLIDATED
BALANCE SHEET AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH LIN
TELEVISION CORPORATION QUARTERLY REPORT ON FORM 10-Q DATED MARCH 31, 1999.
</LEGEND>
<CIK> 0000931058
<NAME> LIN TELEVISION CORPORATION
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
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<CASH> 11,123
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<COMMON> 0
<OTHER-SE> 712,634
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<TOTAL-REVENUES> 59,274
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