Exhibit 10.37
EXECUTION COPY
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SECURITIES PURCHASE AGREEMENT
between
NEXSTAR BROADCASTING GROUP, L.L.C.
as Issuer,
and
BANCAMERICA CAPITAL INVESTORS I, L.P
as Purchaser
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Dated as of August 7, 2001
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS............................................................................................1
SECTION 1.01 Definitions...................................................................1
SECTION 1.02 Accounting Terms; Financial Statements.......................................15
ARTICLE II PURCHASE AND SALE....................................................................................16
SECTION 2.01 Purchase and Sale of Purchased Interests.....................................16
ARTICLE III CONDITIONS TO THE OBLIGATION OF THE PURCHASER TO CLOSE..............................................16
SECTION 3.01 Representations and Warranties...............................................16
SECTION 3.02 Compliance with this Agreement...............................................16
SECTION 3.03 No Material Adverse Change...................................................16
SECTION 3.04 No Adverse Proceedings.......................................................16
SECTION 3.05 Transaction Documents........................................................17
SECTION 3.06 Officer's Certificate........................................................17
SECTION 3.07 Secretary's Certificates.....................................................17
SECTION 3.08 Good Standing Certificates...................................................17
SECTION 3.09 Purchase Permitted by Applicable Laws........................................18
SECTION 3.10 Consents and Approvals.......................................................18
SECTION 3.11 Legal Opinions...............................................................18
SECTION 3.12 Disbursement Instructions....................................................18
SECTION 3.13 Other Assurances.............................................................18
SECTION 3.14 Fees.........................................................................18
SECTION 3.15 Policy Regarding Board Observers.............................................18
SECTION 3.16 Reorganization...............................................................18
ARTICLE IV CONDITIONS TO THE OBLIGATION OF THE COMPANY TO CLOSE.................................................18
SECTION 4.01 Representations and Warranties...............................................19
SECTION 4.02 Compliance with this Agreement...............................................19
SECTION 4.03 Payment of Purchase Price....................................................19
SECTION 4.04 Transaction Documents........................................................19
SECTION 4.05 Issuance Permitted by Requirements of Laws...................................19
SECTION 4.06 Consents and Approvals.......................................................19
SECTION 4.07 Other Assurances.............................................................19
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY.........................................................19
SECTION 5.01 Organization; Powers; Qualification; Capitalization..........................19
SECTION 5.02 Corporate Authorization; No Contravention....................................20
SECTION 5.03 Governmental Consents........................................................20
SECTION 5.04 Binding Effect...............................................................20
SECTION 5.05 Financial Statements.........................................................20
SECTION 5.06 Private Offering.............................................................21
SECTION 5.07 Debt Documents...............................................................21
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SECTION 5.08 No Material Adverse Effect...................................................21
SECTION 5.09 Adverse Proceedings, Etc.....................................................22
SECTION 5.10 Certain Fees.................................................................22
SECTION 5.11 Disclosure...................................................................22
SECTION 5.12 Transactions with Affiliates.................................................22
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE PURCHASER......................................................22
SECTION 6.01 Organization, Authorization; No Contravention................................22
SECTION 6.02 Governmental Consents........................................................22
SECTION 6.03 Binding Effect...............................................................23
SECTION 6.04 Accredited Investor; Purchase for Own Account................................23
SECTION 6.05 ERISA........................................................................23
SECTION 6.06 Broker's, Finder's or Similar Fees...........................................23
SECTION 6.07 Governmental Authorization; Third Party Consent..............................23
ARTICLE VII AFFIRMATIVE COVENANTS...............................................................................23
SECTION 7.01 Financial Statements.........................................................23
SECTION 7.02 Certificate; Other Information...............................................24
SECTION 7.03 Other Notices................................................................25
SECTION 7.04 FCC Information..............................................................25
SECTION 7.05 FCC Licenses and Regulatory Compliance.......................................25
SECTION 7.06 License Lapse................................................................25
SECTION 7.07 Maintenance of Corporate, Limited Liability Company or Partnership Existence,
etc..........................................................................26
SECTION 7.08 Maintenance of Property; Insurance...........................................26
SECTION 7.09 Compliance with Laws, etc....................................................26
SECTION 7.10 Books and Records; Inspection................................................26
SECTION 7.11 Use of Proceeds..............................................................26
SECTION 7.12 Amendment to Maturity Date...................................................27
ARTICLE VIII NEGATIVE COVENANTS.................................................................................27
SECTION 8.01 Business Conducted...........................................................27
SECTION 8.02 Certain Security Issuances...................................................27
SECTION 8.03 Limitation on Modifications of Charter Documents and Certain Other Agreements27
SECTION 8.04 Limitation on Certain Restrictions on Subsidiaries...........................28
SECTION 8.05 Consolidations, Mergers, Acquisitions, etc...................................28
SECTION 8.06 Transactions with Affiliates.................................................28
SECTION 8.07 Financial Covenants..........................................................29
SECTION 8.08 Restricted Payments..........................................................31
SECTION 8.09 Limitation on Restrictive Agreements.........................................32
SECTION 8.10 Changes to Board Observer Policy.............................................32
ARTICLE IX ANTI-DILUTION PROTECTION.............................................................................32
SECTION 9.01 Dilutive Issuances...........................................................32
SECTION 9.02 Other Adjustments............................................................33
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ARTICLE X REDEMPTION............................................................................................34
SECTION 10.01 Put Rights...................................................................34
SECTION 10.02 Call Rights..................................................................35
SECTION 10.03 Closing......................................................................35
ARTICLE XI EVENTS OF NONCOMPLIANCE..............................................................................36
SECTION 11.01 Events of Noncompliance......................................................36
SECTION 11.02 Remedies.....................................................................37
ARTICLE XII INDEMNIFICATION.....................................................................................38
SECTION 12.01 Indemnification..............................................................38
SECTION 12.02 Notification.................................................................38
ARTICLE XIII MISCELLANEOUS......................................................................................39
SECTION 13.01 Survival.....................................................................39
SECTION 13.02 Notices......................................................................39
SECTION 13.03 Successors and Assigns.......................................................40
SECTION 13.04 Remedies Cumulative..........................................................40
SECTION 13.05 Amendments, Waivers and Consents.............................................40
SECTION 13.06 Counterparts.................................................................41
SECTION 13.07 Headings.....................................................................41
SECTION 13.08 Governing Law................................................................41
SECTION 13.09 Jurisdiction.................................................................41
SECTION 13.10 Severability.................................................................41
SECTION 13.11 Rules of Construction........................................................41
SECTION 13.12 Entire Agreement.............................................................41
SECTION 13.13 Certain Expenses.............................................................41
SECTION 13.14 Publicity....................................................................42
SECTION 13.15 Further Assurances...........................................................42
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INDEX OF EXHIBITS AND SCHEDULES
Exhibit Description
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Exhibit A Form of Registration Agreement
Exhibit B Form of Subordination Agreement
Exhibit C Funds Flow Memorandum
Exhibit D Legal Opinion of Xxxxxxxx & Xxxxx
Exhibit E Legal Opinion of Xxxxx & Xxxxxx
Exhibit F Board Observer Policy
Schedules Description
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Schedule 5.01(a) Authorized and Issued Interests of the Company and Record
Owners of Such Interests
Schedule 5.01(b) Authorized and Issued Capital Stock of Company's
Subsidiaries and Record Owners of Such Stock
Schedule 5.01(c) Outstanding Warrants, Calls, Rights or Other
Commitments of the Company or its Subsidiaries
Schedule 5.08 Material Subsequent Events
Schedule 5.12 Transactions with Affiliates
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SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT is dated as of August 7, 2001,
between NEXSTAR BROADCASTING GROUP, L.L.C., a Delaware limited liability company
(the "Company"), and BANCAMERICA CAPITAL INVESTORS I, L.P., a Delaware limited
partnership (the "Purchaser" or "BACI").
Statement of Purpose
The Company proposes to issue certain membership Interests to the
Purchaser for an aggregate purchase price of $40,000,000 in order to provide
funds for the refinancing of existing debt, future acquisitions, the expansion
of the Company's operations, and for working capital and general corporate
purposes.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. As used in this Agreement, capitalized terms
used without definition herein shall have the respective meanings set forth in
the LLC Agreement (defined below) and the following terms have the meanings
indicated in this Section 1.01:
"ABRY" means, collectively, ABRY II and ABRY III.
"ABRY II" means ABRY Broadcast Partners II, L.P., a Delaware limited
partnership.
"ABRY III" means ABRY Broadcast Partners III, L.P., a Delaware limited
partnership.
"ABRY Capital Contribution Agreements" means (a) the Capital
Contribution Agreement, dated effective as of January 12, 2001, executed and
delivered by ABRY III, the Company and Nexstar Finance, in favor of the
administrative agent and the banks under the Senior Loan Agreement, as the same
may be amended or modified pursuant to Section 14(b) thereof, and (b) the ABRY
II Agreement referred to therein.
"ABRY Convertible Preferred Interests" means (a) the convertible
preferred interests of NFH II that are outstanding on the date hereof or issued
hereafter to ABRY or its Affiliates in accordance with the provisions hereof and
the limited liability company agreement of NFH II as in effect on the date
hereof and (b) any convertible preferred interests of Nexstar Finance Holdings
issued after the date hereof to ABRY or its Affiliates in accordance with the
provisions hereof and having terms and conditions substantially similar to, and
not materially more favorable to ABRY than, those set forth in the limited
liability company agreement of NFH II as in effect on the date hereof.
"Additional Preferred Interests" is defined in Section 8.02(a) of this
Agreement.
"Adverse Proceeding" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of the
Company or any of its respective Subsidiaries), at law or in equity, or before
or by any Governmental Authority, domestic or foreign (including any claims
relating to Environmental Laws), whether pending or, to the knowledge of the
Company or any of its respective Subsidiaries, threatened against or affecting
the Company or any of its respective Subsidiaries or any property of the Company
or any of its respective Subsidiaries.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. A Person shall be deemed to control another
Person if such Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such other Person, whether
through the ownership of voting securities, by contract or otherwise. In no
event shall the Purchaser be deemed to be an Affiliate of the Company for the
purposes of this Agreement.
"Agreement" means this Securities Purchase Agreement, including the
Schedules and Exhibits hereto, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"Antidilution Interests" has the meaning set forth in Section 9.02(a).
"Available Funds" means, with respect to any redemption of Interests
pursuant to Article IX, the amount of funds of the Company, if any, available
for such redemption without violation or breach of the Senior Loan Documents,
any other Contractual Obligation restricting the Company or any of its
Subsidiaries or Section 18-607 of the Delaware Limited Liability Company Act or
any similar provision of corporate, limited liability company or partnership
law.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Bastet/Mission" means Bastet Broadcasting, Inc. and Mission
Broadcasting of Wichita Falls, Inc.
"Bastet/Mission Entity" means Bastet/Mission and any Person that is a
direct or indirect Subsidiary of Bastet/Mission.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act. The terms "Beneficially Owns" and
"Beneficially Owned" have a corresponding meaning.
"Board of Directors" means, as to any Person, the board of directors of
such Person (or if such Person is a limited liability company, the manager or
board of managers of such Person), or similar governing body or any duly
authorized committee thereof.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in Charlotte, North Carolina or New York City are
authorized or required by law to close.
"Capital Expenditures" means, for any period and with respect to any
Person, the aggregate of all expenditures by such Person and its Subsidiaries
with respect to such period which should be capitalized according to GAAP on a
consolidated balance sheet of such Person and its Subsidiaries, including all
expenditures with respect to fixed or capital assets which should be so
capitalized and, without duplication, the amount of all Capital Lease
Obligations; it being understood that "Capital Expenditures" shall not include,
without duplication, payments made or accrued in respect of Film Obligations or
Consolidation Expenses.
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"Capital Lease Obligations" means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease that would at
that time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means (a) any capital stock, partnership, membership,
joint venture or other ownership or equity interest, participation or securities
(whether voting or nonvoting, whether preferred, common or otherwise, and
including any stock appreciation, contingent interest or similar right) and (b)
any option, warrant, security or other right (including debt securities or other
evidence of Indebtedness) directly or indirectly convertible into or exercisable
or exchangeable for, or otherwise to acquire directly or indirectly, any capital
stock, partnership, membership, joint venture or other ownership or equity
interest, participation or security described in clause (a) above.
"Capital Value" means, with respect to any Interest, any stated amount
which such Interest is entitled to receive upon liquidation of the Company or in
connection with distributions pursuant to Article IV of the LLC Agreement or any
successor provision.
"Change of Control" means the occurrence of any of the following:
(a) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the properties or assets
of the Company and its Subsidiaries taken as a whole, to any "person" (as that
term is used in Section 13(d)(3) of the Exchange Act) other than a Principal or
a Related Party of a Principal;
(b) the liquidation, dissolution of or the adoption of a plan relating
to the liquidation or dissolution of the Company, NFH II (except as permitted in
Section 7.07), Nexstar Finance Holdings or Nexstar Finance;
(c) the consummation of any transaction (including, without limitation,
any merger or consolidation) the result of which is that any "person" (as
defined above), other than the Principals and their Related Parties, becomes the
Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock
of the Company, NFH II (except as permitted in Section 7.07), Nexstar Finance
Holdings or Nexstar Finance measured by voting power rather than number of
shares or interests; or
(d) the first day on which a majority of the members of the Board of
Directors of the Company, NFH II (except as permitted in Section 7.07), Nexstar
Finance Holdings or Nexstar Finance are not Continuing Directors.
"Charter Documents" means, with respect to any Person, (a) the articles
or certificate of formation, incorporation or organization (or the equivalent
organizational documents) of such Person, (b) the bylaws, partnership agreement,
limited liability company agreement or regulations (or the equivalent governing
documents) of such Person and (c) each document setting forth the designation,
amount and relative rights, limitations and preferences of any class or series
of such Person's Capital Stock or of any rights in respect of such Person's
Capital Stock.
"Class A Interests" means the Class A-1 Interests and Class A-2
Interests of the Company as defined and otherwise described in the LLC
Agreement.
"Class B Interests" means the Class B-1 Interests and Class B-2
Interests of the Company as defined and otherwise described in the LLC
Agreement.
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"Class C Interests" means the Class C Interests of the Company as
defined and otherwise described in the LLC Agreement.
"Class D Interests" means the Class D-1 Interests and Class D-2
Interests of the Company as defined and otherwise described in the LLC
Agreement.
"Class D-2 Interests" means the Class D-2 Interests of the Company as
defined and otherwise described in the LLC Agreement.
"Closing" has the meaning set forth in Section 2.01.
"Closing Date" has the meaning set forth in Section 2.01.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any regulations promulgated thereunder.
"Common Interests" means the Class A Interests, the Class B Interests,
the Class C Interests and the Class D Interests.
"Compliance Certificate" means, as to any Person, a certificate of the
Chief Executive Officer, President, Chief Financial Officer or Vice President of
such Person, certifying that the Company and its Subsidiaries are in compliance
with all material terms and conditions of this Agreement, substantially in the
same form, to the extent applicable, as required under the Senior Loan
Documents.
"Consolidated Amortization Expense" means, for any period, for any
Person, the consolidated amortization expense (including goodwill) of such
Person and its Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP.
"Consolidated Depreciation Expense" means, for any period, for any
Person, the depreciation expense of such Person and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, for any Person,
the interest expense of such Person and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, including, without
duplication, total interest expense for such period (including interest
attributable to Capital Lease Obligations) with respect to all outstanding
Indebtedness of such Person and its Subsidiaries, capitalized interest and all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing, as such amounts may be increased or
decreased by the net income (or loss) from Interest Rate Protection Agreements
of such Person for such period.
"Consolidated Net Income" means, for any period, for any Person, the
net income (or loss) of such Person and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded, without duplication, (a) income of any Subsidiary of such Person which
is not a Wholly-Owned Subsidiary of such Person, except to the extent of the
amount of any dividends or other distributions actually paid by or to such
Person or any Wholly-Owned Subsidiary of such Person during such period, (b)
income of any other Person accrued prior to the date (i) any such other Person
becomes a Subsidiary of the Person whose net income is being determined, (ii)
any such other Person is merged into such Person whose net income is being
determined or any Subsidiary of such Person whose net income is being determined
or (iii) the assets of any such other Person are acquired by the Person whose
net income is being determined or by any Subsidiary of such Person whose net
income is being
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determined, (c) any after-tax gains and after-tax losses attributable to
extraordinary and non-recurring items, including Recovery Events and
Dispositions outside the ordinary course of business and any after-tax gains on
pension reversions received by such Person or its Subsidiaries, and (d) to the
extent included in calculating such Consolidated Net Income, non-cash revenue
and non-cash expenses earned or incurred by such Person or any of its
Subsidiaries.
"Consolidated Operating Cash Flow" means, for any period, for any
Person, (a) Consolidated Net Income of such Person for such period plus (b) (to
the extent deducted in calculating such Consolidated Net Income) the sum of,
without duplication, (i) Consolidated Depreciation Expense, (ii) Consolidated
Amortization Expense, (iii) Consolidated Interest Expense, (iv) income tax
expenses for such Person and its Subsidiaries (other than any such expense paid
or payable during such period in connection with extraordinary gains), and (v)
recurring and non-recurring non-cash losses and expenses (determined on a
consolidated basis) less (c) the sum of (i) Film Cash Payments accrued or
becoming due and payable during such period (without duplication) and (ii) (to
the extent included in calculating such Consolidated Net Income) non-cash
revenues, in each case calculated, if applicable, on a Pro Forma Basis (except
for purposes of calculating the Consolidated Unit Coverage Ratio) after giving
effect to (A) any sale or disposition of any Station as if the same were
consummated or became effective on the first day of such period and (B) any
purchase or acquisition of any Person or Station, or the entering into of any
Local Marketing Agreement, Joint Sales Agreement and/or Shared Services
Agreement pursuant to Section 8.05(a) as if the same were consummated or became
effective on the first day of such period, each as determined on a consolidated
basis in accordance with GAAP after eliminating all intercompany items;
provided, that in connection with any purchase or acquisition or the
commencement of the operation of any Station pursuant to any Local Marketing
Agreement, Joint Sales Agreement and/or Shared Services Agreement, Consolidated
Operating Cash Flow shall reflect adjustments thereto for anticipated changes in
network compensation for such period to be effected within 120 days after any
such acquisition or commencement, commissions for national representatives and
other items of revenue or expense (including as the result of a reduction in the
number of employees within 120 days after the date of any such acquisition,
purchase or commencement), in each case as approved pursuant to the Senior Loan
Agreement.
"Consolidated Total Leverage Ratio" means, on any date, the ratio of
(a) the sum of (i) all outstanding Indebtedness of the Company and its
Subsidiaries as of such date, determined on a Pro Forma Basis, (ii) the
aggregate Unpaid Series AA Preferred Return as of such date, (iii) the aggregate
Unreturned Series AA Preferred Interest Capital Value of all Series AA Preferred
Interests outstanding on such date (excluding, for the purposes of this
definition, any Series AA Preferred Interest Redemption Premium, as defined in
the LLC Agreement), and (iv) the unpaid Capital Value and any accrued but unpaid
return on any Additional Preferred Interests (excluding any redemption premium
amount) to (b) the Consolidated Operating Cash Flow of the Company and its
Subsidiaries for the applicable Measurement Period relating to such date.
"Consolidation Expenses" means, for any period and with respect to any
Person, the aggregate of all expenditures by such Person and its Subsidiaries
with respect to such period related to the consolidation of Stations.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company, as applicable, who (a) was a
member of such Board of Directors on the Closing Date; (b) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board at the time of such
nomination or election; or (c) was nominated by Principals beneficially owning
at least 20% of the Voting Stock of the Company.
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"Contractual Obligations" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
lease, loan agreement, indenture, mortgage, deed of trust or other instrument,
document or agreement to which such Person is a party or by which it or any of
its property is bound.
"Control Investment Affiliate" means any Person, any other Person which
(a) directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person and (b) is organized by such Person primarily
for the purpose of making equity or debt investments in one or more companies or
a Person controlled by such Person. For purposes of this definition, "control"
of a Person means the power, directly or indirectly, to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise.
"Debt Documents" means, collectively, the Senior Loan Documents, the
Discount Note Documents and the High Yield Note Documents.
"Discount Note Documents" means the Discount Note Indenture and each
other related loan or credit document as defined and referred to in the Discount
Note Indenture, as amended, restated, supplemented or otherwise modified from
time to time.
"Discount Note Indenture" means the Indenture dated as of May 17, 2001
among NFH II, Nexstar Finance Holdings, Inc., Nexstar Equity Corp., the
Guarantors named therein (including the Company) and United States Trust
Company, as Trustee, relating to the $36,988,000 aggregate principal amount 16%
Senior Subordinated Notes due 2009, as amended, restated, supplemented or
otherwise modified from time to time.
"Disposition" means the direct or indirect sale, assignment, lease (as
lessor), transfer, conveyance or other disposition (including, without
limitation, dispositions of or pursuant to Local Marketing Agreements, Joint
Sales Agreement or Shared Services Agreements or pursuant to Sale and Leaseback
Transactions; provided, that any Sale and Leaseback Transaction shall be on
terms and conditions satisfactory to the Required Holders), in a single
transaction or a series of related transactions, by any Nexstar Entity to any
Person (other than the Company or any Wholly-Owned Subsidiary of the Company) of
any assets or property of any Nexstar Entity, excluding (a) assets or property
disposed of in the ordinary course of business of such Nexstar Entity and (b)
inventory, Real Property or equipment no longer used or useful in the business
of such Nexstar Entity; provided, that in any event the term "Disposition" shall
mean and include sales, assignments, leases (as lessor), transfers, conveyances
or other dispositions (including, without limitation, pursuant to Local
Marketing Agreements, Joint Sales Agreements or Shared Services Agreements) of
principal divisions, or lines of business of, any Nexstar Entity including,
without limitation, any Station of any Nexstar Entity or the Capital Stock of
any Subsidiary of any Nexstar Entity. The terms "Dispose" and "Disposed of"
shall have correlative meanings.
"Distribution" means, with respect to any Person, that such Person has
authorized, declared or paid a dividend, redeemed, repurchased or returned any
equity capital to holders of its Capital Stock as such or made any other
distribution, payment or delivery of Capital Stock, property or cash to holders
of its Capital Stock as such, other than a distribution to holders of any class,
series or type of Capital Stock of shares, interests or units of that identical
class, series or type of Capital Stock.
"Environmental Law" means the Comprehensive Environmental Response,
Compensation and Liability Act, any so-called "Superfund" or any other
applicable Federal, state, local or other statute, law, ordinance, code, rule,
regulation, order or decree, as now or at any time hereafter in effect,
regulating,
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relating to, or imposing liability concerning the environment, the impact of the
environment on human health, or any hazardous or toxic waste, substance or
material or pollutant or contaminant.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations promulgated thereunder as from time to time in effect.
"Event of Noncompliance" means any of the events or circumstances
specified in Section 11.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"Fair Market Value Per Interest" means, as of the date for which
determination is required and for any class or series of Common Interests, the
amount that would be distributed with respect to each such Common Interest
pursuant to Section 4.1 of the LLC Agreement following an arm's length sale of
the Company on such date (including its ownership interest in all Persons) at
fair market value between a willing buyer and a willing seller, if the aggregate
proceeds of such sale (after the payment of all liabilities of the Company and
its Subsidiaries) were distributed pursuant to Section 4.1 of the LLC Agreement.
The Fair Market Value Per Interest shall be determined initially by the Board of
Directors of the Company in good faith within ten (10) Business Days of any
event for which such determination is required and such determination (including
the basis therefor) shall be promptly provided to each Holder. The Required
Holders shall have the right to object to any determination of Fair Market Value
Per Interest in connection with any determination for purposes of Article IX,
with respect to any issuance of Interests to ABRY or an Affiliate of ABRY, and
Article X (except in connection with a determination being made under Article X
in connection with (a) a Sale of the LLC, as defined in the Investors Agreement,
or (b) an Initial Public Offering) hereof; provided, that the Company's
determination shall be binding on the parties hereto unless the Required Holders
object thereto in writing within ten (10) Business Days of receipt thereof. In
the event the Company and the Required Holders cannot agree on the Fair Market
Value Per Interest within ten (10) Business Days of the date of the objection,
the Fair Market Value Per Interest shall be determined by a disinterested
appraiser selected by the Company from a list of three national or regional
investment banks or national accounting firms submitted in writing by the
Required Holders. The fees and expenses of such appraiser shall be paid by the
party whose determination was further from that of the appraiser. Any selection
of a disinterested appraiser shall be made in good faith within seven (7)
Business Days after the end of the last ten (10) Business Day period referred to
above and any determination of Fair Market Value Per Interest by a disinterested
appraiser shall be made within thirty (30) days of the date of selection.
"FCC" means the Federal Communications Commission.
"FCC License" means validly issued FCC licenses and authorizations as
are necessary for the Company and its Subsidiaries to operate their Stations.
"Film Cash Payments" means, for any period for any Person, the sum
(determined on a consolidated basis and without duplication) of all payments by
such Person and its Subsidiaries accrued or becoming due and payable during such
period (without duplication) in respect of Film Obligations; provided, that
amounts applied to the prepayment of Film Obligations owing under Prepayable
Film Contracts shall not be deemed to be Film Cash Payments.
"Film Obligations" means obligations in respect of the purchase, use,
license or acquisition of programs, programming materials, films, and similar
assets used in connection with the business and operations of the Company and
its Subsidiaries.
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"Fiscal Quarter" means each of the following quarterly periods: (a)
January 1 of each calendar year through and including March 31 of each calendar
year, (b) April 1 of each calendar year through and including June 30 of each
calendar year, (c) July 1 of each calendar year through and including September
30 of each calendar year and (d) October 1 through and including December 31 of
each calendar year.
"Fiscal Year" means a calendar year.
"Full Ratchet Issuance" means (a) the issuance of any Interests (or
other Capital Stock exercisable for or convertible into Common Interests) in
connection with the issuance of the Additional Preferred Interests, (b) the
conversion into Interests of, exchange for Interests of, or issuance of
Interests the proceeds of which are used to redeem or repay any ABRY Convertible
Preferred Interests that are (i) outstanding on the day after the Closing Date,
(ii) issued on or before the Purchaser's receipt of the Compliance Certificate
for the period ended September 30, 2002 or in connection with the cure, waiver
or other resolution of a default under any Debt Document occurring with respect
to the quarter ending September 30, 2002, or (iii) issued thereafter in
connection with the financing of an acquisition of a Station, to the extent that
the Interests issued upon or in connection with such conversion, exchange or
redemption would not have constituted a Permitted Acquisition Financing Issuance
if such Interests had been issued at the time of such acquisition.
"Funds Flow Memorandum" means the Funds Flow Memorandum, dated as of
the date hereof, setting forth the wire transfers and other payments to be made
on the Closing Date in connection with the transactions contemplated hereby.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the accounting profession), or in such
other statements by such other entity as may be in general use by significant
segments of the U.S. accounting profession, in effect on the date hereof.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, any central bank (or similar monetary, taxing, or
regulatory authority) thereof or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
any securities exchange and any self-regulatory organization (including the
National Association of Insurance Commissioners).
"Guaranty Obligation" means, as applied to any Person, any direct or
indirect liability of that Person with respect to any Indebtedness, lease,
dividend, letter of credit or other obligation (the "primary obligations") of
another Person (the "primary obligor"), including any obligation of that Person,
whether or not contingent, without duplication (a) to purchase, repurchase or
otherwise acquire such primary obligations or any property constituting direct
or indirect security therefor; (b) to advance or provide funds (i) for the
payment or discharge of any such primary obligation, or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency or any balance sheet item, level of income or financial
condition of the primary obligor; (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation; or (d) otherwise to assure or hold harmless the holder of any such
primary obligation against loss in respect thereof; in each case, including
arrangements ("non-recourse guaranty arrangements") wherein the rights and
remedies of the holder of the primary obligation are limited to repossession or
sale of certain property of such Person. The amount of any Guaranty Obligation
shall be deemed equal to the stated or determinable amount of the primary
obligation in respect of which such Guaranty Obligation is made (or if less, the
stated or
8
determinable amount of such Guaranty Obligation) or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof;
provided, that the amount of any non-recourse guaranty arrangement shall not be
deemed to exceed the fair value of the property which may be repossessed or sold
by the holder of the primary obligation in question.
"High Yield Note Documents" means the High Yield Note Indenture and
each other related loan or credit document as defined and referred to in the
High Yield Note Indenture, as amended, restated, supplemented or otherwise
modified from time to time.
"High Yield Note Indenture" means the Indenture dated as of March 16,
2001 among Nexstar Finance, L.L.C., Nexstar Finance, Inc., the Guarantors named
therein and United States Trust Company, as Trustee, relating to the up to
$250,000,000 aggregate principal amount 12% Senior Subordinated Notes, as
amended, restated, supplemented or otherwise modified from time to time.
"Holder" means BACI and each subsequent holder of any Purchased
Interests.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than (i)
trade payables entered into in the ordinary course of business pursuant to
ordinary terms and (ii) ordinary course purchase price adjustments); (c) all
reimbursement or payment obligations with respect to letters of credit or
non-contingent reimbursement or payment obligations with respect to bankers'
acceptances, surety bonds and similar documents; (d) all obligations evidenced
by notes, bonds, debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of property, assets or
businesses; (e) all indebtedness created or arising under any conditional sale
or other title retention agreement or sales of accounts receivable, in any such
case with respect to property acquired by the Person (even though the rights and
remedies of the seller or bank under such agreement in the event of default are
limited to repossession or sale of such property); (f) all Capital Lease
Obligations; (g) all net obligations with respect to Interest Rate Protection
Agreements; (h) all indebtedness referred to in clauses (a) through (g) above
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property
(including accounts and contracts rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness (in
which event the amount thereof shall not be deemed to exceed the fair value of
such property); and (i) all Guaranty Obligations in respect of obligations of
the kinds referred to in clauses (a) through (h) above.
"Initial Public Offering" means the sale in an underwritten initial
public offering registered under the Securities Act of common equity securities
of the Company or any of its successors that yields gross proceeds of at least
$30,000,000 to the Company or such successor (or any of their Affiliates) and
which, if any Indebtedness is then outstanding under the Senior Loan Agreement
results in a "Change of Control" (as defined in the Senior Loan Agreement).
"Insolvency Proceeding" means (a) any case, action or proceeding
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally; in each case undertaken under
U.S. federal, state or foreign law, including the Bankruptcy Code.
"Interest Rate Protection Agreement" means an interest rate swap, cap,
collar or similar arrangement entered into to hedge interest rate risk (and not
for speculative purposes).
9
"Interests" means the Preferred Interests and the Common Interests.
"Investors Agreement" means the Fourth Amended and Restated Investors,
dated the date hereof, by and among the Company, ABRY II, ABRY III, BACI,
Nexstar Equity Corp. and the executives listed therein, as amended, restated,
supplemented or otherwise modified from time to time.
"Joint Sales Agreement" means an agreement for the sale of commercial
or advertising time or any similar arrangement pursuant to which a Person
obtains the right to (a) sell at least a majority of the time for commercial
spot announcements, and/or resell to advertisers such time on, (b) provide the
sales staff for the sale of the advertising time or the collection of accounts
receivable with respect to commercial advertisements broadcast on, (c) set the
rates for advertising on and/or (d) provide the advertising material for
broadcast on, a television broadcast station the FCC License of which is held by
a Person other than an Affiliate of such Person.
"Leasehold" of any Person means all of the right, title and interest of
such Person as lessee or licensee in, to and under leases or licenses of land,
improvements and/or fixtures.
"License" means any authorization, permit, consent, franchise,
ordinance, registration, certificate, license, agreement or other right filed
with, granted by or entered into with a Governmental Authority or other Person
which permits or authorizes the use of an electromagnetic transmission frequency
or the construction or operation of a broadcast television station system or any
part thereof or any other authorization, permit, consent, franchise, ordinance,
registration, certificate, license, agreement or other right filed with, granted
by or entered into with a Governmental Authority or other Person which is
necessary for the lawful conduct of the business of constructing or operating a
broadcast television station.
"Lien" means, with respect to any property or asset (or any revenues,
income or profits therefrom) of any Person (in each case whether the same is
consensual or nonconsensual or arises by contract, operation of law, legal
process or otherwise), (a) any mortgage, lien, security interest, pledge,
attachment, levy or other charge or encumbrance of any kind thereupon or in
respect thereof or (b) any other arrangement under which the same is
transferred, sequestered or otherwise identified with the intention of
subjecting the same to, or making the same available for, the payment or
performance of any liability in priority to the payment of the ordinary,
unsecured creditors of such Person. For purposes of this Agreement, a Person
shall be deemed to own subject to a Lien any asset that it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, Capital Lease Obligation or other title retention agreement relating
to such asset.
"LLC Agreement" means the Fourth Amended and Restated Limited Liability
Company Agreement of the Company, dated as of the date hereof, as amended,
restated, supplemented or otherwise modified from time to time.
"Local Marketing Agreement" means a local marketing arrangement, time
brokerage agreement, management agreement or similar arrangement pursuant to
which a Person, subject to customary preemption rights and other limitations,
obtains the right to exhibit programming and sell advertising time during more
than fifteen percent (15%) of the air time of a television broadcast station
licensed to another Person.
"Management Loan" shall mean loans, not to exceed $3,000,000 in
aggregate principal amount, made by Bank of America, N.A. to Sook, the proceeds
of which loans that have been made were, and loans which may be made will be,
used by Sook in part to invest in the Company or to pay interest on any such
loan.
10
"Management Loan Guaranty" has the meaning specified in Section
8.06(d).
"Material Adverse Effect" means, relative to any occurrence of whatever
nature (including any adverse determination in any litigation, arbitration or
governmental investigation or proceeding), a material adverse effect on the
operations, business, assets, properties, condition (financial or otherwise) or
prospects of (a) the Nexstar Entities taken as a whole, (b) the ability of any
Nexstar Entity to perform its obligations under the Transaction Documents to
which it is a party or (c) the validity or enforceability of this Agreement or
any other Transaction Document or the rights and remedies of the Holders under
this Agreement or any of the other Transaction Documents.
"Measurement Period" means, with respect to any date, the most recently
ended twelve-month period for which financial statements have been or were
required to have been delivered to the Holder pursuant to Section 7.01(a), (b)
or (c) prior to such date.
"Minimum Tax Distribution Amount" means for any calendar year an amount
equal to (a) the aggregate amounts of Profits (as such term is defined in the
LLC Agreement) allocated to the Series AA Preferred Interests with respect to
such year, minus the aggregate amount of Losses (as such term is defined in the
LLC Agreement) allocated to the Series AA Preferred Interests with respect to
such year multiplied by (b) the highest applicable corporate tax rate with
respect to such year.
"Net Income" means, for any Measurement Period, the net income (or net
loss) of a Person and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Nexstar Entity" means the Company and any Person which is a direct or
indirect Subsidiary of the Company.
"Nexstar Finance" means Nexstar Finance, L.L.C., a Delaware limited
liability company.
"Nexstar Finance Holdings" means Nexstar Finance Holdings, L.L.C., a
Delaware limited liability company, formerly known as NBG, L.L.C.
"NFH II" means Nexstar Finance Holdings II, L.L.C., a Delaware limited
liability company, formerly known as Nexstar Finance Holdings, L.L.C.
"Permitted Acquisition Financing Issuances" means the issuance of
Capital Stock to finance the acquisition of a Station to the extent that
proceeds of such issuance of such Capital Stock do not exceed the total cash
purchase price actually paid by the Company or its Subsidiaries in connection
with such acquisition minus the product of: (a) the Company's pro-forma
Consolidated Total Leverage Ratio as approved under the Senior Loan Agreement
(ignoring, for purposes of such computation, the principal and interest or
return on the Preferred Interests) multiplied by (b) the pro-forma broadcast
flow of the target business, as set forth in the projections required to be
delivered under the Senior Loan Agreement in connection with such acquisition
and approved under the Senior Loan Agreement.
"Permitted Issuances" means (a) the issuance of Capital Stock to the
seller or sellers of any Station acquired by the Company or any of its
Subsidiaries; provided, that Capital Stock may not be issued as consideration
for an Acquisition from an Affiliate of the Company, any of its Subsidiaries or
ABRY, (b) the issuance of up to 50,000 Class C Interests or options therefor to
employees, directors and independent contractors of the Company and its
Subsidiaries approved by the Board of Directors of the NFH II, (c) the issuance
of Antidilution Interests pursuant to Article IX, (d) the issuance of the
Purchased Interests hereunder, (e) the issuance of Capital Stock representing,
or convertible into or exercisable for,
11
not more than 50,000 Points to financial institutions in connection with
commercial credit arrangements, or to strategic partners of the Company and (f)
Permitted Acquisition Financing Issuances.
"Person" means any natural person, corporation, firm, trust,
partnership, business trust, association, government, governmental agency or
authority, or any other entity, whether acting in an individual, fiduciary, or
other capacity.
"Potential Event of Noncompliance" means any event or circumstance
which, with the giving of notice, the lapse of time, or both, would (if not
cured or otherwise remedied during such time) constitute an Event of
Noncompliance.
"Preferred Interests" means (a) the Series AA Preferred Interests and
(b) the Additional Preferred Interests, if any.
"Prepayable Film Contract" means a contract evidencing a Film
Obligation in which the amount owed by a Person or any of its Subsidiaries under
such contract exceeds the remaining value of such contract to such Person or
such Subsidiary, as reasonably determined by such Person.
"Principals" means (a) ABRY and its Control Investment Affiliates, and
(b) the members of management of the Company or any Subsidiaries of the Company,
in each case, together with any spouse or immediate family member (including
adoptive children), estate, heirs, executors, personal representatives and
administrators of such Person.
"Pro Forma Basis" means, with respect to any calculation to be made on
such basis (including calculations to be made with respect to Section 8.07) to
determine compliance with any provision of this Agreement on such basis or to
prepare any financial statements or financial projections to be prepared on such
basis, such calculation being made as of a specified date and/or for the
applicable Measurement Period relating to such specified date (or other
specified period or date as required in connection with such calculation) or
such financial statements or financial projections being prepared (in accordance
with GAAP) using the financial information of the specified date and/or the
applicable Measurement Period relating to such specified date (or other
specified period or date as required in connection with such preparation), after
giving effect to the relevant transactions the effect of which is required to be
given as stated herein (and all financial statement effects arising therefrom)
as if such transaction occurred on the first day of such applicable Measurement
Period or other specified period or on the date being tested (as applicable) as
required in connection with such calculation or preparation of financial
statements or projections (the "Test Period"). Any calculation or preparation
pursuant to the foregoing shall be made in good faith by the Company and shall
be set forth in an officer's certificate furnished to the Holders showing such
calculation (and the methodology used) in reasonable detail (with supporting
schedules as to the results of operations of the assets acquired or Disposed
of), which calculation or preparation and methodology shall be (a) as approved
under the Senior Loan Agreement, to the extent required to be approved
thereunder, and (b) in all other cases, consistent in all material respects with
methodology used with respect to calculations required under the Senior Loan
Agreement.
"Purchased Common Interests" is defined in Section 2.01 of this
Agreement.
"Purchased Interests" is defined in Section 2.01 of this Agreement.
"Real Property" means, with respect to any Person, all of the right,
title and interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
12
"Recovery Event" means the receipt by any Nexstar Entity of any
insurance or other cash proceeds payable by reason of theft, loss, physical
destruction, condemnation or damage or any other similar event with respect to
any property or assets of any Nexstar Entity.
"Redemption Period" is defined in Section 8.02(a).
"Refinancing Indebtedness" means, Indebtedness incurred to refinance or
replace any Indebtedness outstanding on the date of such incurrence; provided,
that the principal amount of such Refinancing Indebtedness (a) does not exceed
the sum of the principal amount of the Indebtedness being refinanced or replaced
thereby, plus the amount of accrued and unpaid interest thereon, plus the
reasonable and customary fees and expenses incurred in connection with such
refinancing, and (b) matures on or before June 30, 2010.
"Registration Agreement" means the Registration Agreement dated the
date hereof by and between the Company and BACI, as amended, restated,
supplemented or otherwise modified from time to time.
"Related Party" means:
(a) any controlling stockholder, 80% (or more) owned Subsidiary, or
immediate family member (in the case of an individual) of any Principal; or
(b) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of any one or more Principals
and/or such other Persons referred to in the immediately preceding clause (a).
"Required Holders" means: (a) at any time when any Series AA Preferred
Interests are outstanding, the Holders of at least a majority of the outstanding
Series AA Preferred Interests; or (b) at any other time, the Holders of at least
a majority of the outstanding Purchased Common Interests.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of a court or of a
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Responsible Officer" means, the Company and each of its Subsidiaries,
its chief executive officer, its president, any vice-president, its chief
financial officer, controller, vice president-finance, treasurer or assistant
treasurer, or any other officer having substantially the same authority and
responsibility, in each case acting solely in such capacity and without personal
liability.
"Restricted Interests" means any (a) Preferred Interests having a
Capital Value or (b) any Common Interests having a right to receive
distributions relating to their Capital Value prior to or on parity with the
Purchased Common Interests.
"Sale and Leaseback Transaction" means any arrangement, directly or
indirectly, with any Person whereby a seller or transferor shall sell or
otherwise transfer any real or personal property and then or thereafter lease,
or repurchase under an extended purchase contract, conditional sales or other
title retention agreement, the same or similar property.
"Securities Act" means the Securities Act of 1933, as amended from time
to time and any successor statute.
13
"Senior Loan Agreement" means (a) the Amended and Restated Credit
Agreement dated as of June 14, 2001 among Nexstar Finance, L.L.C., as Borrower,
the Company and certain Subsidiaries of the Company, as guarantors, various
lenders, and Bank of America, N.A., as administrative agent, as amended,
restated, supplemented or otherwise modified from time to time, in accordance
with the provisions thereof and (b) any credit or similar agreement delivered or
entered into in connection with any replacement or refinancing of the
Indebtedness arising under the Senior Loan Agreement, in accordance with the
provisions hereof and thereof.
"Senior Loan Documents" means (a) the Senior Loan Agreement, (b) each
other related loan, credit or security document as defined and referred to in
the Senior Loan Agreement, as amended, restated, supplemented or otherwise
modified from time to time, in accordance with the provisions thereof, and (c)
any document delivered or entered into in connection with any replacement or
refinancing of the Indebtedness arising under the Senior Loan Agreement or other
Senior Loan Documents.
"Series AA Preferred Interest Maturity Date" means July 31, 2010.
"Series AA Preferred Interests" means the Series AA Preferred Interests
of the Company as defined and otherwise described in the LLC Agreement.
"Series AA Preferred Return" has the meaning ascribed to this term in
the LLC Agreement.
"Shared Services Agreement" means a shared services arrangement or
other similar arrangement pursuant to which two Persons owning separate
television broadcast stations agree to share the costs of certain services and
procurements which they individually require in connection with the ownership
and operation of one television broadcast station, whether through the form of
joint or cooperative buying arrangements or the performance of certain functions
relating to the operation of one television broadcast station by employees of
the owner and operator of the other television broadcast station, including, but
not limited to, the co-location of the studio, non-managerial administrative
and/or master control and technical facilities of such television broadcast
station and/or the sharing of maintenance, security and other services relating
to such facilities.
"Sook" means Xxxxx Xxxx, an individual residing on the Closing Date in
the State of Texas.
"Station" means, at any time, collectively, (a) each television
station owned by any Nexstar Entity on the Closing Date, (b) any television
station licensed by the FCC to any Nexstar Entity on, or at any time after, the
date hereof and (c) any television station that is the subject of a purchase,
acquisition, Local Marketing Agreement, Joint Sales Agreement or Shared Services
Agreement.
"Subordination Agreement" means the Subordination Agreement dated the
date hereof by and among the Company, NFH II, Nexstar Finance Holdings, Nexstar
Finance, ABRY and BACI, as amended, restated, supplemented or otherwise modified
from time to time.
"Subsidiary" means, as to any Person, (a) any corporation more than 50%
of whose Capital Stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries, and (b) any partnership, limited liability
company, association, joint venture or other entity in which such Person,
directly or indirectly through Subsidiaries, has more than a 50% equity interest
at the time. Additionally, for the purposes of this Agreement, the financial
position and results of the Bastet/Mission Entities shall be included as if they
were Wholly-Owned Subsidiaries of the Company and any television station owned
by
14
a Bastet/Mission Entity were a "Station" so long as Joint Sales Agreements,
Shared Services Agreements and/or Local Marketing Agreements between the
Bastet/Mission Entities and one or more Subsidiaries of the Company, covering
all of the television broadcast stations of the Bastet/Mission Entities, are in
full force and effect.
"Television Broadcasting Business" means a business substantially all
of which consists of the construction, ownership, operation, management,
promotion, extension or other utilization of any type of television broadcasting
system or any similar television broadcasting business, including the
syndication of television programming, the obtaining of a license or franchise
to operate such a system or business, and activities incidental thereto, such as
providing production services.
"Transaction Documents" means this Agreement, the LLC Agreement, the
Investors Agreement, the Registration Agreement, the Subordination Agreement,
the exhibits and schedules attached hereto and thereto and each other document
delivered or executed in connection with the transactions contemplated hereby.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"United States" and "U.S." each means the United States of America.
"Unpaid Series AA Preferred Return" has the meaning ascribed to this
term in the LLC Agreement.
"Unreturned Series AA Preferred Interest Capital Value" has the meaning
ascribed to this term in the LLC Agreement.
"Wholly-Owned Subsidiary" means, as to any Person, (a) any corporation
100% of whose Capital Stock (other than director's or other qualifying shares)
is at the time owned by such Person and/or one or more direct or indirect
Wholly-Owned Subsidiaries of such Person and (b) any partnership, limited
liability company, association or other entity in which such Person and/or one
or more direct or indirect Wholly-Owned Subsidiaries of such Person has a 100%
equity interest at such time; provided, that for purposes of this Agreement, NFH
II and Nexstar Finance Holdings shall each be deemed to be, indirectly, a
Wholly-Owned Subsidiary of the Company notwithstanding that the Company is not
the direct or indirect owner of the ABRY Convertible Preferred Interests
outstanding, if any; provided, further, that such ABRY Convertible Preferred
Interests are the only shares of Capital Stock of such entities that are not
owned, directly or indirectly by the Company.
SECTION 1.02 Accounting Terms; Financial Statements. All accounting
terms used herein not expressly defined in this Agreement shall have the
respective meanings given to them in accordance with sound accounting practice.
The term "sound accounting practice" means such accounting practice as, in the
opinion of the independent certified public accountants regularly retained by
the Company, conforms at the time to GAAP applied on a consistent basis except
for changes with which such accountants concur. If any changes in accounting
principles are hereafter occasioned by promulgation of rules, regulations,
pronouncements or opinions of or are otherwise required by, the Financial
Accounting Standards Board or the American Institute of Certified Public
Accountants (or successors thereto or agencies with similar functions), and any
of such changes results in a change in the method of calculation of, or affects
the results of such calculation of, any of the financial covenants, standards or
terms found herein, then the parties hereto agree to enter into and diligently
pursue negotiations in order to amend such financial covenants, standards or
terms so as to reflect fairly and equitably such changes, with the desired
result that the criteria for evaluating the Company's financial
15
condition and results of operations of the Company shall be the same after such
changes as if such changes had not been made; provided, that prior to any such
amendments, compliance with the financial covenants contained herein shall
continue to be determined in accordance with GAAP as in effect prior to such
change.
ARTICLE II
PURCHASE AND SALE
SECTION 2.01 Purchase and Sale of Purchased Interests. Subject to the
terms and conditions set forth in this Agreement, and in reliance upon the
representations and warranties set forth below, the purchase and sale of the
securities sold hereunder shall take place at the closing (the "Closing") to be
held at the offices of Xxxxxxxx & Xxxxx, New York, New York, at 10:00 a.m., on
August 7, 2001 or at such other time and place as the parties hereto may agree
in writing (the "Closing Date"). At the Closing, the Company shall deliver to
the Purchaser evidence of entry of Purchaser's ownership in the interest ledger
of the Company of (a) 40,000 Series AA Preferred Interests of the Company and
(b) 563,898.97 Class D-2 Interests, representing 9.25% of the total Points
allocable to all outstanding Common Interests of the Company (the "Purchased
Common Interests" and, together with the Series AA Preferred Interests purchased
hereunder, the "Purchased Interests") against delivery to the Company by the
Purchaser of an aggregate, combined purchase price therefor of $40,000,000 by
wire transfer of immediately available funds.
ARTICLE III
CONDITIONS TO THE OBLIGATION
OF THE PURCHASER TO CLOSE
The obligation of the Purchaser to purchase the respective Purchased
Interests, to pay the purchase price therefor at the Closing and to perform any
obligations hereunder shall be subject to the satisfaction as determined by the
Purchaser of the following conditions on or before the Closing Date:
SECTION 3.01 Representations and Warranties. The representations and
warranties of the Company contained in Article V hereof shall be true and
correct in all material respects on and as of the Closing Date as if made on and
as of such date.
SECTION 3.02 Compliance with this Agreement. The Company and each
Nexstar Entity shall have performed and complied with all of the agreements and
conditions set forth herein that are required to be performed or complied with
by the such Person on or before the Closing Date.
SECTION 3.03 No Material Adverse Change. No event, occurrence,
condition, change, development or effect shall exist or shall have occurred or
come to exist as of the Closing Date that, individually or in the aggregate, has
had or resulted in, or could reasonably be expected to become or result in, a
Material Adverse Effect.
SECTION 3.04 No Adverse Proceedings. No action, suit or proceeding
before any Governmental Authority shall have been commenced, no investigation by
any Governmental Authority shall have been commenced, and no action, suit or
proceeding by any Governmental Authority shall have been threatened against any
of the parties to this Agreement, any of the Nexstar Entities not party to this
Agreement, or any of the principals, officers, directors, partners or
interestholders of any of them, or any of their assets seeking to restrain,
prevent or challenge the transactions contemplated hereby or
16
questioning the validity or legality of any of such transactions or seeking
damages in connection with any of such transactions.
SECTION 3.05 Transaction Documents. The Purchaser shall have received
true, complete and correct copies of the Transaction Documents and such other
documents as it may reasonably request in connection with or relating to the
sale of the Purchased Interests and the transactions contemplated hereby, all in
form and substance satisfactory to the Purchaser, including, without limitation,
the following:
(a) the Certificate of Formation of the Company, certified by the
Secretary of State of the State of Delaware;
(b) a copy of the LLC Agreement of the Company executed by each member
of the Company required to effect the amendment and restatement thereof;
(c) a copy of the Investors Agreement, executed by the Company and each
member of the Company required to effect the amendment and restatement thereof;
(d) a copy of the Registration Agreement, attached hereto as Exhibit A,
executed by the Company;
(e) a copy of the Subordination Agreement, attached hereto as Exhibit
B, executed by the Company, NFH II, Nexstar Finance Holdings, Nexstar Finance
and ABRY; and
(f) a copy of the Funds Flow Memorandum, attached hereto as Exhibit C,
executed by the Company.
SECTION 3.06 Officer's Certificate. The Purchaser shall have received a
certificate dated as of the Closing Date from the Company, executed on its
behalf by the chief executive officer and chief financial officer or equivalent
officer of the Company, in form and substance satisfactory to the Purchaser, to
the effect that (a) all representations and warranties of the Company contained
in this Agreement are true, correct and complete in all material respects, (b)
the Company is not in violation of any of the covenants contained in this
Agreement, and (c) all conditions precedent to the Closing of this Agreement to
be performed by the Company have been duly performed in all material respects.
SECTION 3.07 Secretary's Certificates. The Purchaser shall have
received a certificate from the Company, and as applicable each other Nexstar
Entity, dated the Closing Date and signed by the Secretary or Assistant
Secretary of the Company or such Nexstar Entity certifying (a) that the attached
copies of the Company Formation Documents and resolutions of the Manager or
Board of Directors of such entity approving this Agreement and the transactions
contemplated hereby, are all true, complete and correct and remain unamended and
in full force and effect, (b) as to the incumbency and specimen signature of
each officer of such entity executing this Agreement and any other document
delivered in connection herewith on behalf of such entity and (c) as to the good
standing of the Company or such Nexstar Entity in the state of its organization
and in each other state in which the Company or such Nexstar Entity is
transacting business except where the failure to be in good standing would not
have a Material Adverse Effect.
SECTION 3.08 Good Standing Certificates. The Purchaser shall have
received certificates as of a recent date as to the existence, qualification and
good standing of the Company and each other Nexstar Entity under the laws of its
jurisdiction of organization and each jurisdiction where qualified to do
business.
17
SECTION 3.09 Purchase Permitted by Applicable Laws. The acquisition of
and payment for the Interests to be acquired by the Purchaser hereunder and the
consummation of the transactions contemplated hereby (a) shall not be prohibited
by any Requirement of Law and (b) shall not subject the Purchaser to any penalty
or, in its reasonable judgment, other onerous condition under or pursuant to any
Requirement of Law.
SECTION 3.10 Consents and Approvals. All consents, exemptions,
authorizations or other actions by, or notices to, or filings with, Governmental
Authorities and other Persons in respect of all Requirements of Law and with
respect to Contractual Obligations of the Company required in connection with
the execution, delivery or performance by the Company or enforcement against the
Company of this Agreement and the other Transaction Documents shall have been
obtained and be in full force and effect, and the Purchaser shall have been
furnished with appropriate evidence thereof, and all waiting periods shall have
lapsed without extension or the imposition of any conditions or restrictions.
SECTION 3.11 Legal Opinions. The Purchaser shall have received the
legal opinion of (a) Xxxxxxxx & Xxxxx addressing the matters set forth in
Exhibit D hereto and (b) Xxxxx & Xxxxxx addressing the matters set forth in
Exhibit E hereto.
SECTION 3.12 Disbursement Instructions. The Purchaser shall have
received written instructions from the Company directing the payment of the
purchase price and all fees and expenses to be paid in connection therewith on
the Closing Date.
SECTION 3.13 Other Assurances. The Company shall have delivered to the
Purchaser such other and further certificates, assurances and documents as the
Purchaser or its counsel may have reasonably requested in order to evidence the
accuracy of the representations and warranties thereof, the performance of the
covenants and agreements to be performed at or prior to the Closing thereby, and
the fulfillment of the conditions to the Purchaser's obligations.
SECTION 3.14 Fees. The Company shall have paid to the Purchaser (a) the
fees payable to BACI as set forth in the Commitment Letter dated June 14, 2001
by and between the Company and BACI and the term sheet attached thereto, and (b)
the fees and expenses to be paid pursuant to Section 13.13 of this Agreement, in
each case as set forth on the Funds Flow Memorandum.
SECTION 3.15 Policy Regarding Board Observers. Each Subsidiary of the
Company shall have validly adopted the policy attached hereto as Exhibit F (the
"Board Observer Policy"), regarding Board Observers (as such term is defined in
the Investors Agreement) at the meetings of the Boards of Directors of such
Subsidiaries.
SECTION 3.16 Reorganization. The Company and its Subsidiaries shall
have completed the Reorganization (as defined in the Discount Note Indenture) in
a manner acceptable to the Purchaser.
ARTICLE IV
CONDITIONS TO THE OBLIGATION
OF THE COMPANY TO CLOSE
The obligations of the Company to issue and sell to the Purchaser the
Purchased Interests and to perform its other obligations hereunder shall be
subject to the satisfaction as determined by the Company of the following
conditions on or before the Closing Date:
18
SECTION 4.01 Representations and Warranties. The representations and
warranties of the Purchaser contained in Article VI shall be true and correct in
all material respects on and as of the Closing Date as if made on and as of such
date.
SECTION 4.02 Compliance with this Agreement. The Purchaser shall have
performed and complied with all of its agreements and conditions set forth or
contemplated herein that are required to be performed or complied with by the
Purchaser on or before the Closing Date.
SECTION 4.03 Payment of Purchase Price. The Company shall have,
received via wire transfer of immediately available funds, the purchase price.
SECTION 4.04 Transaction Documents The Purchaser shall have executed
each of the Transaction Documents to which it is a party.
SECTION 4.05 Issuance Permitted by Requirements of Laws. The issuance
of the Purchased Interests to be issued by the Company hereunder and the
consummation of the transactions contemplated hereby (a) shall not be prohibited
by any Requirement of Law and (b) shall not subject the Company to any penalty
or, in its reasonable judgment, other onerous condition under or pursuant to any
Requirement of Law.
SECTION 4.06 Consents and Approvals. All consents, exemptions,
authorizations or other actions by, or notices to, or filings with, Governmental
Authorities and other Persons in respect of all Requirements of Law and
Contractual Obligations of the Purchaser required in connection with the
execution, delivery or performance by the Purchaser or enforcement against the
Purchaser of this Agreement shall have been obtained and be in full force and
effect, and the Company shall have been furnished with appropriate evidence
thereof, and all waiting periods shall have lapsed without extension or the
imposition of any conditions or restrictions.
SECTION 4.07 Other Assurances. The Purchaser shall have delivered to
the Company such other and further certificates, assurances and documents as the
Company or its counsel may have reasonably requested in order to evidence the
accuracy of the representations and warranties thereof, the performance of the
covenants and agreements to be performed at or prior to the Closing thereby, and
the fulfillment of the conditions to the Company's obligations.
ARTICLE V
REPRESENTATIONS AND
WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser, as of the
Closing Date and before and after giving effect to the transactions contemplated
by this Agreement and the other Transaction Documents, as follows:
SECTION 5.01 Organization; Powers; Qualification; Capitalization.
(a) Each of the Company and its Subsidiaries (i) is duly organized,
validly existing and in good standing under the laws of the jurisdictions
identified on Schedule 5.01(a) or 5.01(b), as the case may be, (ii) has all
requisite power and authority to own and operate its properties, to carry on its
business as now conducted and currently proposed to be conducted, to enter into
the Transaction Documents to which it is a party and to carry out the
transactions contemplated thereby, and (iii) is qualified to do business and in
good standing in every jurisdiction necessary to carry out its business and
operations,
19
except such jurisdictions where the failure to be so qualified or in good
standing has not had, and could not be reasonably expected to have, a Material
Adverse Effect. Schedule 5.01(a) correctly sets forth the number of issued
units, shares or interests of each class or series of Capital Stock of the
Company as of the Closing Date. Such issued and outstanding units, shares or
interests are owned of record by the Persons, and in the respective amounts, set
forth on Schedule 5.01(a).
(b) Other than set forth on Schedule 5.01(b), the Company has no direct
Subsidiaries or investments. Schedule 5.01(b) sets forth the authorized Capital
Stock of each Subsidiary, the respective issued and outstanding amounts thereof
and the record owners thereof. The issued and outstanding Capital Stock of each
Subsidiary of the Company has been duly authorized and validly issued and is
fully paid and non-assessable.
(c) Except as expressly provided on Schedule 5.01(c), as of the Closing
Date, there is no existing option, warrant, call, right, commitment or other
agreement to which the Company or any of its Subsidiaries is a party requiring,
and there is no security of the Company or any of its Subsidiaries outstanding
which upon conversion or exchange would require, the issuance by the Company or
any of its Subsidiaries of any additional membership interests or other Capital
Stock of the Company or any of its Subsidiaries or other Securities convertible
into, exchangeable for or evidencing the right to subscribe for or purchase, a
membership interest or other Capital Stock of the Company or any of its
Subsidiaries.
SECTION 5.02 Corporate Authorization; No Contravention. The execution,
delivery and performance by the Company of this Agreement and each other
Transaction Document to which it is a party and the transactions contemplated
hereby and thereby, including without limitation the issuance by the Company of
the Purchased Interests, (a) have been duly authorized by all necessary action
of the Company, (b) do not contravene the terms of the Company Formation
Documents, or the organizational documents of any Subsidiary of the Company, and
(c) will not violate, conflict with or result in any breach or contravention of,
or the creation of any Lien under, any Contractual Obligation or any Requirement
of Law.
SECTION 5.03 Governmental Consents. The execution, delivery and
performance by the Company of the Transaction Documents to which it is a party
and the consummation of the transactions contemplated thereby do not and will
not require the registration with, consent or approval of, or notice to, or
other action of, with or by, any Governmental Authority as of the Closing Date.
SECTION 5.04 Binding Effect. This Agreement and the other Transaction
Documents to which the Company is a party will, upon the due execution and
delivery thereof by the Company, constitute the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
their respective terms except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity relating to enforceability.
SECTION 5.05 Financial Statements. Any financial statements delivered
to the Purchasers in connection with its business due diligence related to the
transactions described in this Agreement and in the other Transaction Documents
were prepared in conformity with GAAP and fairly present, in all material
respects, the financial position, on a consolidated basis, of the Persons
described in such financial statements as at the respective dates thereof and
the results of operations and cash flows, on a consolidated basis, of the
entities described therein for each of the periods then ended, subject, in the
case of any such unaudited financial statements, to changes resulting from audit
and normal year-end adjustments. As of the date hereof, neither the Company nor
any of its Subsidiaries has any contingent liability or liability for taxes,
long-term lease or unusual forward or long-term commitment that is not reflected
in the Financial Statements or the notes thereto and which in any case is
material in relation to
20
the business, operations, properties, assets, condition (financial or otherwise)
or prospects of the Company and any of its Subsidiaries taken as a whole. On and
as of the Closing Date, any projections of the Company and its Subsidiaries
delivered to the Purchasers in connection with its business due diligence
related to the transactions described in this Agreement and in the other
Transaction Documents (the "Projections") are based on good faith estimates and
assumptions made by the management of the Company; provided, that the
Projections are not to be viewed as facts and that actual results during the
period or periods covered by the Projections may differ from such Projections
and that the differences may be material; provided further, as of the Closing
Date, management of the Company believe that the Projections are reasonable and
attainable.
SECTION 5.06 Private Offering. No form of general solicitation or
general advertising was used by the Company or its representatives in connection
with the offer or sale of the Purchased Interests. Assuming the truth of the
representations made in Article VI by the Purchaser, no registration of the
Interests pursuant to the provisions of the Securities Act or any state
securities or "blue sky" laws will be required by the offer, sale or issuance of
the Purchased Interests pursuant to this Agreement.
SECTION 5.07 Debt Documents.
(a) Senior Loan Documents. The Company has delivered to the Purchaser
true, complete and correct copies of the Senior Loan Documents together with all
amendments and modifications thereto. Such documents (including the schedules
and exhibits thereto) comprise a full and complete copy of all agreements
between the parties thereto with respect to the subject matter thereof and all
transactions related thereto, and there are no agreements or understandings,
oral or written, or side agreements not contained therein that relate to or
modify the substance thereof. Prior to the Closing Date, there has not been any
event of default or other default giving rise to a right of acceleration under
the Senior Loan Documents. Each of the representations and warranties set forth
in Article VI of the Senior Loan Agreement is true and correct as of the Closing
Date (except to the extent such representations expressly refer to an earlier
date, in which case they are true and correct as of such earlier date) and is
incorporated by reference herein as if fully set forth herein.
(b) Discount Note Documents. The Company has delivered to the Purchaser
true, complete and correct copies of the Discount Note Documents together with
all amendments and modifications thereto. Such documents (including the
schedules and exhibits thereto) comprise a full and complete copy of all
agreements between the parties thereto with respect to the subject matter
thereof and all transactions related thereto, and there are no agreements or
understandings, oral or written, or side agreements not contained therein that
relate to or modify the substance thereof. Prior to the Closing Date, there has
not been any event of default or other default giving rise to a right of
acceleration under the Discount Note Documents.
(c) High Yield Note Documents. The Company has delivered to the
Purchaser true, complete and correct copies of the High Yield Note Documents
together with all amendments and modifications thereto. Such documents
(including the schedules and exhibits thereto) comprise a full and complete copy
of all agreements between the parties thereto with respect to the subject matter
thereof and all transactions related thereto, and there are no agreements or
understandings, oral or written, or side agreements not contained therein that
relate to or modify the substance thereof. Prior to the Closing Date, there has
not been any event of default or other default giving rise to a right of
acceleration under the High Yield Note Documents.
SECTION 5.08 No Material Adverse Effect. Except as set forth on
Schedule 5.08, since April 30, 2001, no event or change has occurred that has
caused or evidences, or could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
21
SECTION 5.09 Adverse Proceedings, Etc. There are no Adverse
Proceedings, individually or in the aggregate, that could reasonably be expected
to have a Material Adverse Effect.
SECTION 5.10 Certain Fees. No broker's or finder's fee or commission
will be payable with respect hereto or any of the transactions contemplated
hereby.
SECTION 5.11 Disclosure. No representation or warranty of the Company
or any of its Subsidiaries contained in any Transaction Document or in any other
document, certificate or written statement furnished to the Purchaser by or on
behalf of the Company or any of its Subsidiaries for use in connection with the
transactions contemplated hereby, contains any untrue statement of a material
fact or omits to state a material fact (known to the Company, in the case of any
document not furnished by it) necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made. Any projections and pro forma financial information
contained in such materials are based upon good faith estimates and assumptions
believed by the Company to be reasonable at the time made, it being recognized
by the Purchaser that such projections as to future events are not to be viewed
as facts and that actual results during the period or periods covered by any
such projections may materially differ from the projected results. There are no
facts known (or which should upon the reasonable exercise of diligence be known)
to the Company (other than matters of a general economic nature) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect and that have not been disclosed herein or in such other
documents, certificates and statements furnished to the Purchaser for use in
connection with the transactions contemplated hereby.
SECTION 5.12 Transactions with Affiliates. Schedule 5.12 lists all
transactions, and all material agreements or instruments relating thereto,
entered into since January 1, 2001, or entered into before such date and which
is in effect on the date hereof, between the Company or any of its Subsidiaries
on the one hand and ABRY or any of its Affiliates on the other hand.
ARTICLE VI
REPRESENTATIONS AND
WARRANTIES OF THE PURCHASER
The Purchaser, as of the Closing Date, represents and warrants as
follows:
SECTION 6.01 Organization, Authorization; No Contravention. The
Purchaser (a) is duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it was formed, (b) has all requisite power and
authority to execute, deliver and perform its obligations under this Agreement
and each Transaction Document to which it is a party. The transactions
contemplated in this Agreement and each Transaction Document to which the
Purchaser is a party (i) have been duly authorized by all necessary action the
transactions, (ii) do not violate the terms of the Purchaser's organizational
documents or any amendment thereof and (iii) will not violate, conflict with or
result in any breach or contravention of, or the creation of any Lien (other
than under the Transaction Documents) upon any Purchased Interests under any
Requirement of Law.
SECTION 6.02 Governmental Consents. The execution, delivery and
performance by the Purchaser of the Transaction Documents to which it is a party
and the consummation of the transactions contemplated thereby do not and will
not require the registration with, consent or approval of, or notice to, or
other action of, with or by, any Governmental Authority as of the Closing Date.
22
SECTION 6.03 Binding Effect. Each Transaction Document to which it is a
party has been duly executed and delivered by the Purchaser, and constitutes the
legal, valid and binding obligation of the Purchaser enforceable against it in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles relating to enforceability.
SECTION 6.04 Accredited Investor; Purchase for Own Account. The
Purchaser is an "accredited investor" within the meaning of Regulation D under
the Securities Act. The Purchased Interests are being or will be acquired for
its own account and with no intention of distributing or reselling such
securities or any part thereof in any transaction that would be in violation of
the Securities Act or the securities laws of any state, without prejudice,
however, to the rights of the Purchaser at all times to sell or otherwise
dispose of all or any part of the Purchased Interests under an effective
registration statement under the Securities Act, or under an exemption from such
registration available under the Securities Act.
SECTION 6.05 ERISA. No part of the funds used by the Purchaser to
purchase the Interests hereunder constitutes assets of any employee benefit plan
(within the meaning of ERISA) or "plan" (as defined in Section 4975 of the
Code).
SECTION 6.06 Broker's, Finder's or Similar Fees. There are no brokerage
commissions, finder's fees or similar fees or commissions payable in connection
with the transactions contemplated hereby, or by any other Transaction Document
to which the Purchaser is a party, based on any agreement, arrangement or
understanding with the Purchaser or any action taken by the Purchaser.
SECTION 6.07 Governmental Authorization; Third Party Consent. Except as
contemplated by the Transaction Documents and except to the extent previously
and duly obtained or made and in full force and effect, no approval, consent,
compliance, exemption, authorization or other action by, or notice to, or filing
with, any Governmental Authority or any other Person in respect of any
Requirement of Law, and no lapse of a waiting period under a Requirement of Law,
is necessary or required in connection with the execution, delivery or
performance by the Purchaser or enforcement against the Purchaser of this
Agreement or the transactions contemplated hereby.
ARTICLE VII
AFFIRMATIVE COVENANTS
Until such time as there are no Series AA Preferred Interests
outstanding, the Company covenants and agrees with each Holder as follows;
provided, that the covenants set forth in Sections 7.01(a), 7.01(b), and 7.02(d)
shall survive for so long as any Purchased Interests remain outstanding;
provided, further, that the covenants set forth in Sections 7.01 and 7.02 shall
terminate upon the closing of an Initial Public Offering.
SECTION 7.01 Financial Statements. The Company shall deliver:
(a) to each Holder, as soon as available, but not later than 90 days
after the end of each Fiscal Year, a copy of the audited consolidated balance
sheet of the Company and its consolidated Subsidiaries as at the end of such
Fiscal Year and the related consolidated statements of income or operations,
members' equity and cash flows for such Fiscal Year, setting forth in each case
in comparative form the figures for the previous Fiscal Year and the figures
from the Financial Plan (as defined below) for the current Fiscal Year, and
accompanied by the opinion of PriceWaterhouseCoopers LLP or another
23
nationally-recognized independent public accounting firm which report shall
state that such consolidated financial statements present fairly, in all
material respects, the financial position for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except for
changes agreed upon by the Company on the one hand, and such auditors, on the
other hand, which are disclosed and described in such statements); such opinion
shall not be qualified or limited because of a restricted or limited examination
by such accountant of any material portion of the records of the Company or any
of its Subsidiaries;
(b) to each Holder, as soon as available, but not later than 45 days
after the end of each of the first three Fiscal Quarters of each Fiscal Year, a
copy of the unaudited consolidated balance sheet of the Company and its
Subsidiaries as of the end of each such Fiscal Quarter and the related
consolidated statements of income, members' equity and cash flows for the period
commencing on the first day and ending on the last day of such Fiscal Quarter,
setting forth in each case in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and the corresponding figures
from the Financial Plan for the current Fiscal Year, and certified to by a
Responsible Officer of the Company as being complete and correct and fairly
presenting in all material respects, in accordance with GAAP (except for the
absence of footnotes and subject to normal year-end adjustments), the financial
position and the results of operations of the Company and its Subsidiaries;
(c) to each Holder, as soon as available, but not later than 30 days
after the end of each month, a copy of the unaudited consolidated balance sheet
of the Company and its consolidated Subsidiaries as of the end of such month and
the related statements of income, members' equity and cash flows for the period
commencing on the first day and ending on the last day of such month, setting
forth in each case in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and the corresponding figures
from the Financial Plan for the current Fiscal Year, and certified by a
Responsible Officer of the Company as being complete and correct and fairly
presenting in all material respects, in accordance with GAAP (except for the
absence of footnotes and subject to normal year-end adjustments), the financial
position and the results of operations of the Company and its consolidated
Subsidiaries;
(d) to each Holder, as soon as practicable but not later than Friday of
each week, a copy of the Company's regular, internally-prepared sales pacing
report for the week ending on the immediately preceding Friday; and
(e) to each Holder, as soon as practicable but not later than 60 days
after the beginning of each Fiscal Year, a consolidated plan and financial
forecast for such Fiscal Year (a "Financial Plan"), including (i) a forecasted
consolidated balance sheet and forecasted consolidated statements of income and
cash flows of the Company and its Subsidiaries for each such Fiscal Year,
together with, to the extent required to be provided under the Senior Loan
Agreement, an explanation of the assumptions on which such forecasts are based
and (ii) forecasted consolidated statements of income and cash flows of the
Company and its Subsidiaries for each month of each such Fiscal Year, together
with, to the extent required under the Senior Loan Agreement, the assumptions on
which such forecasts are based stated in reasonable detail.
SECTION 7.02 Certificate; Other Information. The Company shall furnish:
(a) to each Holder, concurrently with the delivery of the financial
statements referred to in Sections 7.01(a) and (b), a Compliance Certificate
duly executed by a Responsible Officer of the Company;
24
(b) to each Holder, promptly after the same are sent, copies of all
financial statements and reports which any Nexstar Entity sends to its
shareholders, partners or members; and promptly after the same are filed, copies
of all financial statements and regular, periodical or special reports which any
Nexstar Entity may make to, or file with, the Securities and Exchange
Commission, other than filings on Form 11-K and S-8; and
(c) to each Holder of Series AA Preferred Interests, such additional
business, financial and other information with respect to the Company or any of
its Subsidiaries as such Holder, may from time to time reasonably request.
(d) to each Holder, so long as it holds any Purchased Interests, such
additional information with respect to the Company or any of its Subsidiaries as
is reasonably requested by such Holder from time to time in connection with (i)
the preparation of such Holder's tax returns relating to its investment in the
Company, (ii) with respect to any Holder that is a limited partnership or
limited liability company, any information required to be provided to its
limited partners or members, and (iii) with respect to any Holder that is an
Affiliate of a financial holding company (as defined in 12 U.S.C. ss. 1841), any
reporting or record-keeping requirements applicable to such an Affiliate.
SECTION 7.03 Other Notices. The Company shall deliver to each holder of
Series AA Preferred Interests: (a) written notice of, immediately upon becoming
aware thereof, the holder of any Capital Stock of the Company or any
Indebtedness of the Company or its Subsidiaries in excess of Five Million
Dollars ($5,000,000) giving notice or taking any action with respect to a
claimed default; (b) written notice of any material adverse change in the
property, business, operations, or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole; (c) copies of any material notice
delivered to any lender pursuant to the Senior Loan Agreement; and (d) written
notice of any event, occurrence, condition, change, development or effect shall
exist that, individually or in the aggregate, has resulted in, or could
reasonably be expected to become or result in, a Material Adverse Effect. Each
notice given under this Section 7.03 shall describe the subject matter thereof
in reasonable detail and shall set forth the action that the Company has taken
or proposes to take with respect thereto. The foregoing shall not limit the
Company's obligation to give other notices under this Agreement.
SECTION 7.04 FCC Information. As soon as possible and in any event
within five days after the receipt by any Nexstar Entity from the FCC or any
other Governmental Authority or filing or receipt thereof by any Nexstar Entity,
provide to each Holder (a) any citation, notice of violation or order to show
cause issued by the FCC or any Governmental Authority with respect to any
Nexstar Entity which is available to any Nexstar Entity, in each case which
could reasonably be expected to have a Material Adverse Effect and (b) if
applicable, a copy of any notice or application by any Nexstar Entity requesting
authority to or notifying the FCC of its intent to cease broadcasting on any
broadcast station for any period in excess of ten days.
SECTION 7.05 FCC Licenses and Regulatory Compliance. The Company shall,
and shall cause each of its Subsidiaries to, comply in all material respects
with all terms and conditions of all FCC Licenses covering the Stations of any
Nexstar Entity, all Federal, state and local laws, all rules, regulations and
administrative orders of the FCC and all state and local commissions or
authorities which are applicable to the Company and/or its Subsidiaries or the
operation of the Stations of any Nexstar Entity.
SECTION 7.06 License Lapse. As soon as possible and in any event within
five days after the receipt thereof by any Nexstar Entity, the Company will give
the Holder notice of any lapse, termination or relinquishment of any material
License, permit or other authorization from the FCC or other Governmental
Authority held by any Nexstar Entity or any failure of the FCC or other
25
Governmental Authority to renew or extend any such License, permit or other
authorization for the usual period thereof and of any complaint or other matter
filed with or communicated to the FCC or other Governmental Authority, of which
any Nexstar Entity has knowledge and in any such case which could reasonably be
expected to have a Material Adverse Effect.
SECTION 7.07 Maintenance of Corporate, Limited Liability Company or
Partnership Existence, etc7.07 . Except as permitted under the Senior Loan
Agreement, the Company shall, and shall cause each of its Subsidiaries to, cause
to be done at all times all things necessary to maintain and preserve the
corporate, limited liability company or partnership existence, as the case may
be, of each Nexstar Entity; provided, however, the Company shall be permitted to
liquidate or dissolve NFH II if such action (i) would not cause a default or an
event of default under the Senior Loan Documents, the High Yield Note Documents
or the Discount Note Documents, and (ii) could not reasonably be expected to
have a Material Adverse Effect or adversely affect the holders of the Series AA
Preferred Interests.
SECTION 7.08 Maintenance of Property; Insurance. The Company will, and
will cause each of its Subsidiaries to, keep all of the material property and
facilities that are useful and necessary in the business of the Nexstar Entities
in such condition as is sufficient for the operation of such business in the
ordinary course and will maintain, and cause each of its Subsidiaries to
maintain, such insurance as may be required by law and such other insurance, to
such extent and against such hazards and liabilities, as is customarily
maintained by companies similarly situated to the Nexstar Entities.
SECTION 7.09 Compliance with Laws, etc.. The Company will, and will
cause each of its Subsidiaries to, comply with the Requirements of Law of any
Governmental Authority, and the requirements of all Contractual Obligations,
other than the noncompliance with which could reasonably be expected to have a
Material Adverse Effect.
SECTION 7.10 Books and Records; Inspection. The Company will, and will
cause each of its Subsidiaries to, keep proper books and records reflecting all
of their business affairs and transactions in accordance with GAAP. The Company
will, and will cause its Subsidiaries to, permit the Holder, or any of their
respective representatives or agents, upon reasonable notice and at reasonable
times and intervals during ordinary business hours (or at any time if an Event
of Noncompliance has occurred and is continuing), to visit all of their offices,
discuss their financial matters with their officers and, subject to the right of
representatives of the Nexstar Entities to be present, independent accountants
(and hereby authorizes such independent accountants to discuss their financial
matters with the Holder or its representatives pursuant to the foregoing) and
examine and make abstracts or photocopies from any of their books or other
corporate records, all at the Company's expense for any charges imposed by such
accountants or for making such abstracts or photocopies, but otherwise at the
Holder's expense.
SECTION 7.11 Use of Proceeds. The Company will, or cause its
Subsidiaries to use, the proceeds of the sale of the Purchased Interests to (a)
pay the fees and expenses in connection with the transactions contemplated
hereby and (b) redeem ABRY Convertible Preferred Interests to the full extent of
any remaining proceeds after payment of the foregoing amounts; provided, that on
the Closing Date and immediately after the Closing hereunder, ABRY and Sook
shall purchase Common Interests of the Company resulting in cash proceeds to the
Company (i) in an amount sufficient to (A) redeem all ABRY Convertible Preferred
Interests remaining outstanding after giving effect to the payment in clause (b)
of this Section 7.11 and (B) repay $20,000,000 of Indebtedness outstanding under
the Senior Loan Agreement; provided, further, that the Company shall cause all
such proceeds to be applied to such redemptions and repayment on the Closing
Date as described in the Funds Flow Memorandum and (ii) which will extinguish
all "Commitment Amounts" set forth in Section 3.2 of the LLC Agreement.
26
SECTION 7.12 Amendment to Maturity Date. Upon written request from the
Required Holders delivered at any time after the repayment in full of all
Indebtedness outstanding under the Senior Loan Agreement, the Company shall
execute an amendment to this Agreement amending the Series AA Maturity Date to
be the earlier of the Series AA Maturity Date as then in effect or the date
which is one year after the repayment in full of all Indebtedness outstanding
under the Senior Loan Documents (other than an ABRY Capital Contribution
Agreement), the Discount Note Documents and the High Yield Note Documents.
ARTICLE VIII
NEGATIVE COVENANTS
The Company and each of its Subsidiaries agrees with the
Holder that, as long as any Series AA Preferred Interests remain outstanding:
SECTION 8.01 Business Conducted. Neither the Company nor any of its
Subsidiaries shall engage in any businesses which are not reasonably similar,
ancillary, complementary or related to the businesses in which the Company or
its Subsidiaries are engaged in on the date hereof except to such extent as
would not be material to the Company and its Subsidiaries, taken as a whole.
SECTION 8.02 Certain Security Issuances.
(a) Company Capital Stock. The Company shall not create or issue any
class or series of Capital Stock ranking pari passu with or senior to the Series
AA Preferred Interests with respect to the right to receive distributions from
the Company; provided, that during the period beginning on the date of receipt
of the Compliance Certificate for the period ending December 31, 2001 and ending
on date of receipt of the Compliance Certificate for the period ending September
30, 2002 but in no event later than November 15, 2002 (the "Redemption Period"),
the Company may issue up to $10,000,000 of Capital Stock ranking pari passu with
the Series AA Preferred Interests (the "Additional Preferred Interests") on
terms and conditions no less favorable to the Company than the terms of the
Series AA Preferred Interests, if (i) after giving effect to such issuance, the
Consolidated Total Leverage Ratio would be less than (A) with respect to any
issuance occurring on or prior to the date of receipt of the Compliance
Certificate for the period ending June 30, 2002 (but in no event later than
August 15, 2002), 8.00 to 1.00 or (B) with respect to any issuance thereafter,
7.50 to 1.00, and (ii) the Company uses the proceeds of such issuance solely for
the redemption of ABRY Convertible Preferred Interests outstanding on such date.
(b) Security Issuances to ABRY and Affiliates. The Company shall not
incur or suffer to exist any Indebtedness for borrowed money to ABRY or to any
Affiliate of ABRY. The Company shall not permit any of its Subsidiaries to issue
Capital Stock to ABRY or to any Affiliate of ABRY, except that NFH II and
Nexstar Finance Holdings may issue additional ABRY Convertible Preferred
Interests to ABRY, subject to the provisions of the Subordination Agreement.
(c) Subsidiary Capital Stock. The Company shall not permit any of its
Subsidiaries to issue any Capital Stock except to (i) a Wholly-Owned Subsidiary
of the Company, (ii) pursuant to Section 8.02(b) or (iii) in connection with the
creation of a bona fide joint venture with a third Person or Persons, none of
which is an Affiliate of ABRY, and to the extent permitted under the Senior Loan
Agreement.
SECTION 8.03 Limitation on Modifications of Charter Documents and
Certain Other Agreements. Neither the Company nor any of its Subsidiaries will
amend, modify or change: (a) any Charter Document or equivalent organizational
document (including, without limitation, by the filing or
27
modification of any certificate of designation); (b) the provisions of (i)
Section 8.10 of the Senior Loan Agreement as in effect on the date hereof, (ii)
Section 4.07 of the Discount Note Indenture as in effect on the date hereof,
(iii) Section 4.07 of the High Yield Note Indenture as in effect on the date
hereof, in each case, including any amendments, modifications or changes
(including through the operation of financial covenants or otherwise) that would
indirectly have an effect on such sections (or any successor provisions
thereto); or (c) any Transaction Document, unless in each case such amendment,
modification, change or other action contemplated by this Section 8.03 could not
reasonably be adverse to the interests of any Holder of Series AA Preferred
Interests in any material respect and would not treat any Holder of the
Purchased Common Interests in a manner different from the holders of Class A
Interests in any material respect.
SECTION 8.04 Limitation on Certain Restrictions on Subsidiaries.
Neither the Company nor any Subsidiary will, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any Lien or restriction
on the ability of any Subsidiary to (a) pay Distributions on its Capital Stock
that is owned by the Company or any of its Subsidiaries; (b) pay any
Indebtedness owed to the Company or any Subsidiary; (c) make loans or advances
to the Company or any Subsidiary; or (d) transfer any of its Properties to the
Company or any Subsidiary, except for such Liens or restrictions:
(i) existing under or by reason of (A) applicable law; (B)
this Agreement; (C) the Senior Loan Documents, Discount Note Documents or High
Yield Note Documents, substantially as such restrictions are in effect on the
date hereof; (D) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest; (E) customary provisions restricting
assignment of any licensing agreement entered into by the Company or any
Subsidiary in the ordinary course of business; and (F) restrictions on the
transfer of any equipment or other asset subject to a purchase money security
interest or similar Lien permitted under the Senior Loan Documents;
(ii) (A) expiring on or before March 31, 2010 or (B) relating
to Indebtedness that matures not later than March 31, 2010 and terminating upon
the payment in full thereof;
(iii) that do not encumber or restrict the ability of any
Subsidiary to make tax distributions to the Company or any other Subsidiary
beyond the extent to which the Company and its Subsidiaries are restricted from
making such tax distributions as of the Closing Date; or
(iv) that do not encumber or restrict the ability of any
Subsidiary to make distributions upon a Change of Control to the Company or any
other Subsidiary beyond the extent to which the Company and its Subsidiaries are
restricted from making such Change of Control distributions as of the Closing
Date.
SECTION 8.05 Consolidations, Mergers, Acquisitions, etc. The Company
will not, and will not suffer or permit any of its Subsidiaries to, wind up,
liquidate or dissolve themselves, consolidate or amalgamate with or merge into
or with any other Person, or purchase or otherwise acquire (or enter into any
agreement to purchase or otherwise acquire) any television broadcasting station
or any Person, or all or substantially all of the assets of any Person (or of
any principal line of business or division thereof) or convey, sell, transfer,
lease or otherwise dispose of all or substantially all of their respective
assets, either in one transaction or a series of related transactions, to any
other Person or Persons, except to the extent permitted under the Senior Loan
Documents and, after repayment in full of the obligations thereunder, as would
have been permitted under the Senior Loan Documents as last in effect.
SECTION 8.06 Transactions with Affiliates. The Company shall not, and
shall not permit any of its Subsidiaries to, make any payment to, or sell,
lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
28
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate (each, an "Affiliate Transaction"),
unless:
(a) the Affiliate Transaction is on terms that are no less favorable to
the Company or the relevant Subsidiary than those that would have been obtained
in a comparable transaction by the Company or such Subsidiary with an unrelated
Person; and
(b) the Company delivers to each Holder:
(i) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess of
$1.0 million, a resolution of the Board of Directors of NFH II certifying that
such Affiliate Transaction complies with this Section 8.06 and that such
Affiliate Transaction has been approved by a majority of the disinterested
members of the Board of Directors; and
(ii) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess of
$7.5 million, an opinion as to the fairness to the Holders of such Affiliate
Transaction from a financial point of view issued by an accounting, appraisal or
investment banking firm of national standing;
provided, that the following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to the provisions of the prior
paragraph:
(A) Guaranty Obligations of the Nexstar Entities with respect to the
Management Loan, in an amount not to exceed an aggregate principal amount of
$3,000,000 (the "Management Loan Guaranty");
(B) the transactions contemplated under Sections 7.11, 8.02(a) and
8.02(b), the ABRY Capital Contribution Agreements and the Subordination
Agreement;
(C) any employment agreement entered into by the Company or a
Subsidiary in the ordinary course of business of the Company or such Subsidiary;
(D) transactions between or among the Company and/or its Subsidiaries;
(E) loans, advances, payment of reasonable fees, indemnification of
directors, or similar arrangements to officers, directors, employees and
consultants who are not otherwise Affiliates of the Company; and
(F) transactions under any contract or agreement in effect on the date
hereof as the same may be amended, modified or replaced from time to time so
long as any amendment, modification, or replacement is no less favorable to the
Company and the Subsidiaries than the contract or agreement as in effect on the
date of this Agreement, subject to Section 8.08(c).
SECTION 8.07 Financial Covenants
(a) Incurrence of Indebtedness The Company will not, and will not
permit any of its Subsidiaries to, create, incur, issue, assume, or otherwise
become directly or indirectly liable with respect to any Indebtedness other than
Refinancing Indebtedness, if the Consolidated Total Leverage Ratio, on a Pro
Forma Basis after giving effect to such incurrence on the last day of the
applicable Measurement Period, would exceed the ratio set forth below:
29
Date of Incurrence Ratio
------------------ -----
Date hereof through and including 8.00 to 1.00
June 30, 2002
July 1, 2002 through and including 7.25 to 1.00
June 30, 2005
July 1, 2005 through and including 7.00 to 1.00
June 30, 2006
July 1, 2006 and thereafter 6.75 to 1.00
(b) Limitation on Capital Expenditures. The Company will not, and will
not permit any of its Subsidiaries to, make any Capital Expenditures during any
Fiscal Year which exceed, in the aggregate for the Company and its Subsidiaries,
the amount permitted under the Senior Loan Documents and, after repayment in
full of the obligations thereunder, as would have been permitted under the
Senior Loan Documents as last in effect.
(c) Minimum Consolidated Operating Cash Flow. As of the last day of
each Fiscal Quarter, the Company will not permit Consolidated Operating Cash
Flow for such Fiscal Quarter to be less than the sum of (a) the applicable
amount set forth below:
Quarter Ending Base Amount
-------------- -----------
September 30, 2001 $41,500,000
December 31, 2001 $36,500,000
March 31, 2002 $38,500,000
June 30, 2002 $42,000,000
September 30, 2002 $43,000,000
December 31, 2002 $45,000,000
March 31, 2003 $47,000,000
June 30, 2003 $47,000,000
September 30, 2003 $46,000,000
December 31, 2003 $45,000,000
March 31, 2004 $43,000,000
June 30, 2004 $44,000,000
September 30, 2004 $48,000,000
30
December 31, 2004 $52,000,000
March 31, 2005 $52,000,000
June 30, 2005 $52,000,000
September 30, 2005 $50,000,000
December 31, 2005 $48,000,000
Thereafter $49,000,000
plus (b) an amount equal to eighty-five percent (85%) of the aggregate amount
(determined on an annualized basis with respect to any adjustment for less than
a full year) of any increases to Consolidated Operating Cash Flow on a Pro Forma
Basis pursuant to clause (c)(ii)(B) of the definition thereof for all
acquisitions and other transactions described in such clause (c)(ii)(B) effected
by the Company or any of its Subsidiaries after the Closing Date and prior to
the last day of such Fiscal Quarter minus (d) for any sale or disposition of a
Station by the Company or any of its Subsidiaries after the Closing Date and
prior to the last day of such Fiscal Quarter, an amount calculated for each such
Station in accordance with clause (c)(ii)(A) of the definition of Consolidated
Operating Cash Flow herein, but only to the extent to which such amount has been
applied on a Pro Forma Basis to reduce Consolidated Operating Cash Flow in any
Fiscal Quarter.
SECTION 8.08 Restricted Payments.
(a) The Company shall not declare or pay any Distribution in respect of
any of its Capital Stock other than:
(i) Distributions in accordance with and subject to the
priorities set forth in Section 4.1(a) of the LLC Agreement;
(ii) Distributions for tax purposes as provided in Section
4.1(c) of the LLC Agreement; and
(iii) the repurchase, redemption or other acquisition or
retirement for value of any Capital Stock of the Company by any member
or former member of the Company's (or any of its Subsidiaries')
management, or by any of their respective directors, employees or
consultants; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Capital Stock may not exceed
the sum of (A) $750,000 in any calendar year (with unused amounts in
any calendar year being available to be so utilized in succeeding
calendar years) and (B) the net cash proceeds to the Company from any
issuance or reissuance of Capital Stock to members of management and
the net cash proceeds to the Company of any "keyman" life insurance
proceeds.
(b) The Company shall not permit any of its Subsidiaries to, declare or
pay any Distribution in respect of any of its Capital Stock except to the
Company or to a Wholly-Owned Subsidiary of the Company; provided, that NFH II or
Nexstar Finance Holdings may redeem ABRY Convertible Preferred Interests with
the proceeds of (i) the sale of Additional Preferred Interests issued in
compliance with Section 8.02(a) and (ii) Indebtedness incurred, in compliance
with Section 8.07(a), and applied to such redemption during the Redemption
Period.
31
(c) The Company shall not and shall not permit any of its Subsidiaries
to pay any management (or similar) fees or expenses to ABRY, unless so long as
no Potential Event of Noncompliance or Event of Noncompliance exists both before
and after giving effect to such payments, the Company and its Subsidiaries are
permitted to (i) pay such Person's share of the corporate overhead expenses of
ABRY Partners, LLC or its Affiliates in an aggregate amount for all such
overhead expenses not to exceed $50,000 in any Fiscal Year, and (ii) pay
management fees to ABRY Partners, LLC or its Affiliates, so long as the
aggregate amount of all such management fee payments does not to exceed $75,000
per Station per Fiscal Year and $300,000 in the aggregate for all Stations per
Fiscal Year (with unpaid amounts from any Fiscal Year available to be paid any
succeeding Fiscal Year), in each case as the amount of such corporate overhead
expenses and management fees may be increased annually based on the consumer
price index.
SECTION 8.09 Limitation on Restrictive Agreements. The Company shall
not and shall not permit its Subsidiaries to extend, or agree to extend, the
maturity date of any Indebtedness outstanding on the Closing Date to be later
than, or after the Closing Date incur any Indebtedness with a maturity date
later than, June 30, 2010. Except for Contractual Obligations in effect on the
Closing Date neither the Company nor any of its Subsidiaries shall, enter into
any Contractual Obligation (including any amendment to any Contractual
Obligation in effect on the Closing Date) which would expressly restrict or
prohibit the ability of the Company to make:
(a) (i) tax distributions pursuant to Section 4.1(c) of the
LLC Agreement; or
(ii) redemption payments upon a Change of Control in
respect of the Series AA Preferred Interests or the Purchased
Common Interests, in each case, beyond the extent to which the
Company is restricted from making such payments as of the
Closing Date; or
(b) any other payment in respect of the Series AA Preferred
Interests or Purchased Common Interests beyond the extent to which the Company
is restricted from making such payments as of the Closing Date;
unless such restrictions under this Section 8.09 either (i) expire prior to June
30, 2010 or (ii) relate to Indebtedness that matures not later than June 30,
2010 and terminate upon the payment in full thereof.
SECTION 8.10 Changes to Board Observer Policy. The Company shall not
and shall not permit its Subsidiaries to amend, alter, change or repeal the
Board Observer Policy after the date hereof unless (i) independent outside FCC
counsel to the Company shall determine that the participation by the Board
Observers (as defined in the Investors Agreement) in accordance with the terms
of the Board Observer Policy shall result in the Person holding the right to
appoint such Board Observers owning an "attributable interest" as defined by the
FCC, (ii) such determination is based on a formal action by the FCC occurring
after the date hereof, and (iii) FCC counsel selected by the Required Holders
reasonably concurs with such determination.
ARTICLE IX
ANTI-DILUTION PROTECTION
The Company hereby covenants and agrees with each Holder for so long as
any Purchased Common Interests remain outstanding:
SECTION 9.01 Dilutive Issuances.
32
(a) Limitation on Dilutive Issuances. Except for Permitted
Issuances, the Company shall not (i) issue or agree to issue any Restricted
Interests or any security convertible into or exercisable for Restricted
Interests unless the consideration per Restricted Interest therefor (plus any
amount payable upon the conversion or exercise of any such security) is at least
equal to the Capital Value per Restricted Interest immediately prior to such
issuance (if Restricted Interests or securities convertible into or exercisable
for Restricted Interests are issued together with Interests or securities that
are not Restricted Interests or convertible into or exercisable for securities
that are not Restricted Interests, then for purposes of this Section 9.01 the
consideration received will first be deemed to have been received in respect of
such Restricted Interests or securities convertible into or exercisable for such
Restricted Interests) or (ii) issue or sell any additional Capital Stock for a
consideration (including any amount payable upon exercise or conversion of any
such security) per Interest less than the Fair Market Value Per Interest of such
Capital Stock or the respective Interests underlying such Capital Stock (that is
not itself an Interest), unless prior to the date of such issuance the Company
and the Required Holders have agreed upon an appropriate anti-dilution
adjustment to the Series AA Preferred Interest Capital Value or the points
allocable to the Class D-2 Interests or have agreed upon an issuance of
additional Interests to the Holders to protect the Holders from dilution due to
such issuance or sale ("Antidilution Interests").
(b) Other Action Affecting Common Interests. In case at any
time or from time to time the Company shall take any action relating to any
class or series of Common Interests other than the Class D-2 Interests
(including, without limitation, the granting of stock appreciation rights,
phantom stock rights or other rights with equity features), then, unless in the
opinion of the Board such action will not have a material adverse effect upon
the rights of any Holder of Purchased Common Interests (taking into
consideration, if necessary, any prior actions which the Board of Directors
deemed not to materially adversely affect the rights of such Holder), the
Company shall issue Antidilution Interests in such manner and at such time as
the Board may in good faith determine to be equitable in the circumstances.
(c) Notice. Whenever the Company desires to issue Interests,
or any other Capital Stock other than pursuant to a Permitted Issuance, unless
otherwise agreed by the Required Holders, the Company shall deliver written
notice of such Issuance to each Holder not less than five business days prior to
the date of such issuance, setting forth a description of the basis on which the
Board determined, as applicable, the Fair Market Value Per Interest of the
Common Interests in question, the fair market value of any evidences of
Indebtedness, shares of stock, other securities, warrants, other subscription or
purchase rights, or other property and the equitable nature of any adjustment
under this Section 9.01 or the number of Antidilution Interests, if any, that
the Company proposes to issue to each Holder.
(d) No Dilution or Impairment. The Company will not, by
amendment of the LLC Agreement or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, equity exchange, dissolution or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms of this Section 9.01, and will at all times in good faith
assist in the carrying out of all such terms and in taking of all such action as
may be necessary or appropriate to protect the rights of the Holder of each
Common Interest purchased hereunder against dilution or other impairment.
SECTION 9.02 Other Adjustments. Upon any Full Ratchet Issuance, the
Company shall issue to the Holders of Purchased Common Interests an aggregate
number of Class D-2 Interests as Antidilution Interests such that:
(i) the percentage obtained by dividing (A) the aggregate
number of Points allocable to the Purchased Common
Interests outstanding immediately prior to such Full
Ratchet Issuance by (B) the aggregate number of
Points allocable to all Common Interests then
outstanding immediately prior to such Full Ratchet
Issuance;
33
would be equal to:
(ii) the percentage obtained by dividing (A) the aggregate
number of Points allocable to (I) the Purchased
Common Interests outstanding immediately prior to
such Full Ratchet Issuance and (II) the Antidilution
Interests issued pursuant to this Section 9.02 by (B)
the aggregate number of Points allocable to all
Common Interests outstanding after giving effect to
such Full Ratchet Issuance and the issuance of the
foregoing Antidilution Interests.
Upon the issuance thereof, all Antidilution Interests shall be deemed to be
Purchased Common Interests for all purposes under this Agreement (other than the
foregoing computations in this Section 9.02).
ARTICLE X
REDEMPTION
SECTION 10.01 Put Rights.
(a) Redemption Option. Upon the earliest to occur of (i) (A) the Series
AA Preferred Interest Maturity Date, or (B) an Initial Public Offering, each
Holder shall have the right, but not the obligation, to cause the Company to
redeem all or any portion of the Series AA Preferred Interests or (ii) a Change
of Control, each Holder shall have the right, but not the obligation, to cause
the Company to redeem all or any portion of its Purchased Interests, in each
case on the terms and subject to the conditions of this Section 10.01 by giving
written notice thereof (the "Redemption Notice"). The Redemption Notice shall
specify the number of Purchased Interests to be redeemed. In the event the
Company or any of its Subsidiaries or any members of the Company propose to
effect any Change of Control or an Initial Public Offering, to the extent
permissible by law, the Company shall give each Holder written notice thereof
not later than thirty (30) days prior to the proposed date of consummation of
such transaction. Upon the Company's receipt of a Redemption Notice from a
Holder, subject to the availability of Available Funds to effect such redemption
as provided in Section 10.01(c), the Company shall be obligated to redeem all or
such portion of each Holder's Purchased Interests subject to the Redemption
Notice at the closing therefor described in Section 10.03, provided, that with
respect to any redemption pursuant to Section 10.01(a)(ii), Section 4.15 of the
High Yield Note Indenture and Section 4.15 of the Discount Note Indenture have
been complied with prior thereto or concurrently therewith.
(b) Redemption Price. The redemption price for the Purchased Interests
redeemed by the Company pursuant to this Section 10.01 (the "Redemption Price")
shall be equal to (i) with respect to each Purchased Common Interest, the Fair
Market Value per Interest of the Purchased Common Interests; and (ii) with
respect to each Series AA Preferred Interest, the sum of the Unreturned Series
AA Preferred Interest Capital Value of such Preferred Interest plus all Unpaid
Series AA Preferred Return accrued thereon through the date of redemption.
(c) Available Funds. Payment of the Redemption Price under this Section
10.01 shall only be out of Available Funds. In the event Available Funds are
insufficient to pay the purchase price for the entire amount of Purchased
Interests for which redemption has been requested, then each Holder having
elected redemption may elect pursuant to written notice given to the Company:
(i) that such Holder's redemption rights pursuant to the Redemption Notice shall
remain exercised and the redemption shall be deferred until any of the first
five (5) Business Days after there are sufficient Available Funds to effect such
redemption; provided, that, as and to the extent that there are sufficient
Available Funds to effect such redemption, the Company shall promptly make
partial payments of the Redemption Price to such Holder, in which case there
shall be a series of redemptions, each of which shall take place not more than
34
five (5) Business Days after there are sufficient Available Funds to effect such
redemption to an extent that would permit such partial payments of the
Redemption Price in increments of not less than Five Hundred Thousand Dollars
($500,000) or (ii) that the exercise of the redemption rights pursuant to
Section 10.01(a) shall be rescinded in whole or in part at the option of such
Holder with the result that such Holder may require the Company to redeem its
Purchased Interests at any time thereafter in accordance with the provisions of
this Section 10.01 until one year after the date such Holder gives notice to
rescind the exercise of such redemption rights.
SECTION 10.02 Call Rights.
(a) Liquidity Event Call. Upon the occurrence of (i) an Initial Public
Offering or (ii) a Change of Control, the Company shall have the right, but not
the obligation, to purchase all or any part of the Series AA Preferred Interests
held by the Holders at a purchase price equal to the sum of the Unreturned
Series AA Preferred Interest Capital Value of such Preferred Interests plus all
Unpaid Series AA Preferred Return accrued thereon through the date of redemption
out of Available Funds.
(b) General Call Right. In the absence of (i) an Initial Public
Offering or (ii) a Change of Control and at any time following the Closing Date,
the Company shall have the right, but not the obligation, to purchase all or any
part of the Series AA Preferred Interests held by the Holders at a purchase
price equal to the sum of the Unreturned Series AA Preferred Interest Capital
Value of such Preferred Interests plus all Unpaid Series AA Preferred Return
accrued thereon through the date of redemption out of Available Funds.
(c) Optional Redemption. Any call for redemption to the extent of
Available Funds of the Series AA Preferred Interests held by the Holders
pursuant to this Section 10.02 shall be made, by giving written notice to the
Holders of the Series AA Preferred Interests to be redeemed no less than ten
(10) days prior to the date fixed for redemption, which notice shall specify the
number of such Preferred Interests to be redeemed. If less than all the Series
AA Preferred Interests held by the Holders are to be redeemed, the notice of
redemption shall identify the Series AA Preferred Interests held by the Holders
and portion thereof to be redeemed. Notice of call for redemption having been
given as aforesaid, the amount to be redeemed shall on the date designated in
such notice become due and payable unless such notice is revoked. From and after
such date, unless the Company shall default in payment of the Redemption Price
therefor when so due and payable, the Series AA Preferred Return on such
Preferred Interests shall cease to accrue.
(d) Pro Rata Allocation. Any redemption by the Company of less than all
of the Series AA Preferred Interests pursuant to this Section 10.02 shall be
allocated among each Holder of Series AA Preferred Interests, pro rata, based on
the number of Series AA Preferred Interests held thereby.
SECTION 10.03 Closing.The closing for the redemption or purchase of the
Interests under Section 10.01 or 10.02 shall take place on such date as the
parties to the redemption or purchase may mutually agree in writing; provided,
that the closing occurs no later than thirty (30) days after the date (i)
subject to Section 10.01(c), of the final determination of the purchase price in
the case of a redemption or purchase pursuant to Section 10.01, or (ii) the
Company has exercised its right to purchase all or part of the Series AA
Preferred Interests under 10.02. The closing of such redemption or purchase
shall take place at the principal place of business of the Company at 10:00
a.m., local time, or at such other place and time as the parties to such
redemption or purchase may mutually agree in writing. At the closing:
(a) the party redeeming or selling all or part of its Purchased
Interests (the "Selling Holder") shall execute and deliver to the Company such
documents, certificates and other papers as the Company
35
may reasonably require to effect the transfer and conveyance by assignment of
absolute title to the Company of that portion of the Selling Holder's Purchased
Interests being redeemed or purchased (the "Redeemed Interest") free and clear
of all Liens created by such Selling Holder, and the Selling Holder shall so
represent and warrant;
(b) the Company shall purchase the Redeemed Interest by delivering to
the Holder electing redemption the full amount of the purchase price as
determined under Section 10.01 or 10.02, as applicable, and the Company shall
execute and deliver to the Holder electing redemption such documents,
certificates and other papers to effect such transactions as the Holder electing
redemption may reasonably require;
(c) both the Company and the Selling Holder shall present to the other
such evidence of the authority of such Person and its agent or representative,
if any, to enter into such transaction as such other party may reasonably
request; and
(d) both the Company and the Selling Holder shall covenant to execute
all such documents and take all such further action as may be necessary to
effect the provisions of, and transactions described in and contemplated by, the
applicable provisions of this Article X.
ARTICLE XI
EVENTS OF NONCOMPLIANCE
SECTION 11.01 Events of Noncompliance. An "Event of Noncompliance"
shall occur hereunder upon:
(a) any failure to make (i) any redemption payment pursuant to Article
X (notwithstanding the proviso in Section 10.01(a)) on any of the Purchased
Interests when due, whether upon demand or otherwise or (ii) distributions under
Section 4.1(c) of the LLC Agreement in respect of the Series AA Preferred
Interests on or prior to March 15 of any Fiscal Year, in an amount not less than
the Minimum Tax Distribution Amount;
(b) the Company shall fail to comply with any of the covenants set
forth in Article VIII or Article IX;
(c) default shall occur in any material manner in the observance or
performance by the Company of any of the other covenants and agreements
contained in this Agreement or any of the other Transactions Documents, and such
default shall continue (provided, that for purposes of determining whether an
Event of Noncompliance is continuing for purposes of (i) Section 1 of the
Investors Agreement and (ii) the computation of the Series AA Preferred Return
as set forth in the LLC Agreement, ninety (90) days after the date of such
written notice, any default relating solely to a failure to provide a notice
required to be provided by any Transaction Document shall be deemed to be cured
upon the provision of such notice even if such notice is delivered after the
time by which such Transaction Document required such notice to be delivered)
for a period of sixty (60) days after the earlier to occur of (A) the date on
which any Holder notifies the Company of any such default and (B) the date on
which the Company discovers, or reasonably should have discovered, any such
default;
(d) any Transaction Document shall terminate (other than in accordance
with its terms or with the written consent of the Required Holders) or become
void or unenforceable without the written consent of the Required Holders;
36
(e) the Company or any Subsidiary (i) fails to make any payment or
dividend, as applicable, in respect of any Indebtedness having an aggregate
principal amount of $5,000,000 or more when due (whether by scheduled maturity,
required prepayment, required redemption or repurchase, acceleration, demand, or
otherwise) and such failure continues after the applicable grace or notice
period, if any, specified in the document relating thereto on the date of such
failure; or (ii) fails to perform or observe any other condition or covenant, or
any other event shall occur or condition exist, under any agreement or
instrument relating to such Indebtedness such Indebtedness, and such failure
continues after the applicable grace or notice period, if any, specified in the
document relating thereto on the date of such failure if the effect of such
failure, event or condition referred to in this clause (ii) is to cause, such
Indebtedness to be declared to be redeemed, repurchased or due and payable prior
to its stated maturity;
(f) the Company or any of its Subsidiaries (i) shall commence any
Insolvency Proceeding with respect to itself; or (ii) shall take any action to
effectuate or authorize any of the foregoing;
(g) (i) any involuntary Insolvency Proceeding is commenced or filed
against Company or any of its Subsidiaries or any writ, judgment, warrant of
attachment, execution or similar process, shall be issued or levied against a
substantial part of the Company's or any of its Subsidiaries' properties, and
any such proceeding or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be released,
vacated or fully bonded, within 60 days after commencement, filing or levy; (ii)
the Company or any of its Subsidiaries shall admit the material allegations of a
petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or
(iii) the Company or any of its Subsidiaries shall acquiesce in the appointment
of a receiver, trustee, custodian, conservator, liquidator, mortgagee in
possession (or agent therefor), or other similar Person for itself or a
substantial portion of its property or business;
(h) one or more non-interlocutory judgments, orders or decrees shall be
entered against the Company or any of its Subsidiaries involving in the
aggregate a liability (not covered by independent third-party insurance) as to
any single or related series of transactions, incidents or conditions, of
$5,000,000 or more, and the same shall remain unsatisfied, unvacated and
unstayed pending appeal for a period of 60 days after the entry thereof;
(i) the Company shall file a certificate of dissolution under
applicable state law or shall be liquidated, dissolved or wound-up or shall
commence or have commenced against it any action or proceeding for dissolution,
winding-up or liquidation, or shall take any action in furtherance thereof; or
(j) any order, judgment or decree shall be entered against the Company
or any of its Subsidiaries decreeing the dissolution or split up of the Company
or any of its Subsidiaries and such order shall remain undischarged or unstayed
for a period in excess of thirty (30) days; or
(k) any of the Company's Subsidiaries shall fail to have all required
authorizations and licenses (including FCC Licenses), the failure of which
individually or in the aggregate would have a Material Adverse Effect.
SECTION 11.02 Remedies. If any Event of Noncompliance occurs and is
continuing, in addition to all rights and remedies available at law or in
equity, the Series AA Preferred Return shall be subject to increase as set forth
in the LLC Agreement and the Holders shall have certain rights set forth in the
Investors Agreement.
37
ARTICLE XII
INDEMNIFICATION
SECTION 12.01 Indemnification. In addition to all other sums due
hereunder or provided for in this Agreement, the Company shall indemnify and
hold harmless the Purchaser and its Affiliates and its officers, directors,
agents, employees, subsidiaries, partners and controlling persons (the "Related
Parties" of a Purchaser, and together with the Purchaser, each, an "Indemnified
Party") to the fullest extent permitted by law, from and against any and all
losses, claims, damages (excluding consequential damages; provided, that damages
relating to the diminution in value of any Purchased Interest shall not be
deemed to be consequential damages), expenses (including reasonable fees,
disbursements and other charges of counsel) or other liabilities (collectively,
"Losses") resulting from or arising out of any breach of any representation or
warranty, covenant or agreement of the Company in any Transaction Document, or
any legal, administrative or other actions (including actions brought by the
Company or any equity holders of the Company or derivative actions brought by
any Person claiming through or in the Company's name), proceedings or
investigations (whether formal or informal), based upon, relating to or arising
out of any Transaction Document or the transactions contemplated hereby and
thereby, or any Indemnified Party's role therein or in the transactions
contemplated thereby; provided that the Company shall not be liable under this
Section 12.01 to an Indemnified Party: (a) for any amount paid in settlement of
claims without the Company's prior written consent, (b) to the extent that it is
judicially determined that such Losses resulted primarily from the willful
misconduct or gross negligence of such Indemnified Party or any of its Related
Parties or (c) to the extent that it is judicially determined that such Losses
resulted primarily from the material breach by such Indemnified Party or any of
its Related Parties of any representation, warranty, covenant or other agreement
of such Indemnified Party or any of its Related Parties contained herein or in
the other Transaction Documents; and provided, further, that if and to the
extent that such indemnification is unenforceable for any reason, the Company
shall make the maximum contribution to the payment and satisfaction of such
Losses which shall be permissible under applicable laws. In connection with the
obligation of the Company to indemnify for expenses as set forth above, the
Company shall, upon presentation of appropriate invoices containing reasonable
detail, reimburse each Indemnified Party for all such expenses (including
reasonable fees, disbursements and other charges of counsel) as they are
incurred by such Indemnified Party; provided, that without limiting the
Company's indemnity obligations hereunder, the Company shall not be required to
reimburse such expenses in connection with any legal action brought by the
Company or the Purchaser (or any of their Related Parties) against the Purchaser
(or any of their Related Parties) or the Company, respectively; provided,
further, that if an Indemnified Party is reimbursed hereunder for any expenses,
such reimbursement of expenses shall be refunded to the extent it is judicially
determined that the Losses in question resulted primarily from (i) the willful
misconduct or gross negligence of such Indemnified Party or any of its Related
Parties or (ii) the material breach by such Indemnified Party or any of its
Related Parties of any representation, warranty, covenant or other agreement of
such Indemnified Party or any of its Related Parties contained herein or in any
Transaction Document.
SECTION 12.02 Notification. Each Indemnified Party under this Article
XII will, promptly after the receipt of notice of the commencement of any
action, investigation, claim or other proceeding against such Indemnified Party
in respect of which indemnity may be sought from the Company under this Article
XII, notify the Company in writing of the commencement thereof. The omission of
any Indemnified Party so to notify the Company of any such action shall not
relieve the Company from any liability which it may have to such Indemnified
Party (a) other than pursuant to this Article XII or (b) under this Article XII
unless, and only to the extent that, such omission results in the Company's
forfeiture of substantive rights or defenses or the Company is otherwise
irrevocably prejudiced in defending such proceeding. In case any such action,
claim or other proceeding shall be brought against any Indemnified Party and it
shall notify the Company of the commencement thereof, the
38
Company shall be entitled to assume the defense thereof at its own expense, with
counsel reasonably satisfactory to the Indemnified Party. Notwithstanding the
Company's election to appoint counsel to represent the Indemnified Parties in an
action, each Indemnified Party shall have the right to employ separate counsel
(including local counsel), and the Indemnifying Parties shall bear the
reasonable fees, costs and expenses of such separate counsel (and local counsel)
if (i) the use of counsel chosen by the Company to represent the Indemnified
Parties would present such counsel with a conflict of interest, (ii) the
defendants in any such action include both an Indemnified Party and the Company
and any such Indemnified Party shall have reasonably concluded that there may be
legal defenses available to it and/or other Indemnified Parties which are
different from or additional to those available to the Company, (iii) the
Company shall not have employed counsel satisfactory to such Indemnified Party
to represent such Indemnified Party within a reasonable time after notice of the
institution of such action or (iv) the Company shall have authorized the
Indemnified Party to employ separate counsel at the expense of the indemnifying
party. The Company agrees that it will not, without the prior written consent of
the Required Holders, settle, compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding relating to the matters
contemplated hereby (if any Indemnified Party is a party thereto or has been
actually threatened to be made a party thereto) unless such settlement,
compromise or consent includes an unconditional release of the Purchaser and
each other Indemnified Party from all liability arising or that may arise out of
such claim, action or proceeding. The Company shall not be liable for any
settlement of any claim, action or proceeding effected against an Indemnified
Party without the prior written consent of the Company. The rights accorded to
Indemnified Parties hereunder shall be in addition to any rights that any
Indemnified Party may have at common law, by separate agreement or otherwise.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01 Survival. All of the representations, warranties and
agreements made herein shall survive the execution and delivery of this
Agreement, any investigation by or on behalf of the Purchaser, acceptance of the
Purchased Interests and payment therefor, or termination of this Agreement.
SECTION 13.02 Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopy,
overnight courier service or personal delivery:
(a) if to the Company:
Nexstar Broadcasting Group, LLC
000 Xxxxxxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Attention: President
with copies (which will not constitute notice to the
Company) to:
ABRY Partners, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Telecopy No.: (000) 000-0000
39
and to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx
Telecopy No.: (000) 000-0000
(b) if to the Purchaser:
BancAmerica Capital Investors I, L.P.
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx III
Telecopy No.: (000) 000-0000
with a copy, which shall not constitute notice, to:
Kennedy, Covington, Xxxxxxx & Xxxxxxx, L.L.P.
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(c) if to an other Holder, to the address provided in
writing by such Holder to the Company.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial overnight courier service; five (5) Business
Days after being deposited in the mail, postage prepaid, if mailed; and when
receipt is acknowledged, if telecopied.
SECTION 13.03 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
parties hereto. Subject to applicable securities laws, the Purchaser may assign
any of its rights under this Agreement. The Company may not assign any of its
rights under this Agreement without the prior written consent of the Required
Holders. Except as provided in Article XII, no Person other than the parties
hereto and their successors and permitted assigns is intended to be a
beneficiary of any of the Transaction Documents.
SECTION 13.04 Remedies Cumulative. No failure or delay on the part of
the Company or the Purchaser in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. Except as expressly set
forth in this Agreement, the remedies provided for herein are cumulative and are
not exclusive of any remedies that may be available to the Company or the
Purchaser at law, in equity or otherwise.
SECTION 13.05 Amendments, Waivers and Consents. No modification or
amendment of any provision of this Agreement shall be effective against the
Holders or the Company unless such modification or amendment is made or given in
writing and signed by the Company and the Required
40
Holders. Any consent to any departure of the Company from the terms of any
provision of this Agreement, shall be effective only if it is made or given in
writing and signed by the Company and the Required Holders. Any such
modification, amendment or consent shall be effective only in the specific
instance and for the specific purpose for which made or given
SECTION 13.06 Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
SECTION 13.07 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 13.08 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW OF SUCH STATE.
SECTION 13.09 Jurisdiction. Each party to this Agreement hereby
irrevocably agrees that any legal action or proceeding arising out of or
relating to this Agreement or any agreements or transactions contemplated hereby
may be brought in the courts of the State of North Carolina or the State of New
York or of the United States of America for the Western District of North
Carolina or of the United States of America for the Southern District of New
York and hereby expressly submits (on a non-exclusive basis) to the
non-exclusive personal jurisdiction and venue of such courts for the purposes
thereof and expressly waives any claim of improper venue and any claim that such
courts are an inconvenient forum. Each party hereby irrevocably consents to the
service of process of any of the aforementioned courts in any such suit, action
or proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the address set forth in Section 13.02, such service to
become effective 10 days after such mailing.
SECTION 13.10 Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
SECTION 13.11 Rules of Construction. Unless the context otherwise
requires, "or" is not exclusive, and references to sections or subsections refer
to sections or subsections of this Agreement. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or plural, as the
context may require.
SECTION 13.12 Entire Agreement. This Agreement, together with the
exhibits and schedules hereto and the other Transaction Documents, is intended
by the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and therein.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein or therein. This Agreement, together with
the exhibits hereto, and the other Transaction Documents supersede all prior
agreements and understandings between the parties with respect to such subject
matter.
SECTION 13.13 Certain Expenses. The Company agrees to pay or reimburse
(a) Purchaser for all reasonable out-of-pocket costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) in connection with
(i) the negotiation, preparation, execution and delivery of this Agreement and
the Transaction Documents and the consummation of the transactions
41
contemplated thereby and (ii) any amendment, modification or waiver of any of
the terms of this Agreement or the Transaction Documents; and (b) each Holder
for (i) all costs and expenses of such Holder (including, without limitation,
reasonable attorney's fees and expenses) in connection with any default
hereunder and any enforcement proceedings resulting therefrom; and (ii)
transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this Agreement or
the Transaction Documents or any other document referred to herein or therein.
SECTION 13.14 Publicity. Except as may be required by applicable law,
none of the parties hereto shall issue a publicity release or announcement or
otherwise make any public disclosure concerning this Agreement or the
transactions contemplated hereby, without prior approval by the other parties
hereto (which approval will not be unreasonably withheld). If any announcement
is required by law to be made by any party hereto, prior to making such
announcement such party will deliver a draft of such announcement to the other
parties and shall give the other parties an opportunity to comment thereon.
SECTION 13.15 Further Assurances. Each of the parties shall execute
such documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations, or other actions by, or
giving any notices to, or making any filings with, any Governmental Authority or
any other Person) as may be reasonably required or desirable to carry out or to
perform the provisions of this Agreement.
42
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective officers hereunto duly authorized as
of the date first above written.
NEXSTAR BROADCASTING GROUP, LLC
By: /s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: President & Chief Executive Officer
BANCAMERICA CAPITAL INVESTORS I, L.P.
By: BANCAMERICA CAPITAL MANAGEMENT I, L.P.,
its general partner
By: BACM I GP, LLC, its general partner
By: /s/ Xxxxxx X. Xxxxxxxx III
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx III
Title: Managing Director
