EXHIBIT 10.4
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
LIMITED CONSENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
LIMITED CONSENT (this "Amendment"), dated as of November 14, 2001, among NEXSTAR
FINANCE, L.L.C., a Delaware limited liability company (the "Borrower"), NEXSTAR
BROADCASTING GROUP, L.L.C., a Delaware limited liability company (the "Ultimate
Parent"), the other Parent Guarantors (as such term is defined in the
hereinafter described Credit Agreement) parties to this Amendment, the several
Banks (as such term is defined in the hereinafter described Credit Agreement)
parties to this Amendment, and BANK OF AMERICA, N.A., as Administrative Agent
for the Banks (in such capacity, the "Administrative Agent").
R E C I T A L S:
A. The Borrower, the Ultimate Parent, the other Parent Guarantors, the
Administrative Agent, Barclays Bank PLC, as Syndication Agent, First Union
National Bank, as Documentation Agent, and the several Banks parties thereto
entered into that certain Amended and Restated Credit Agreement dated as of June
14, 2001 (as the same may be amended, modified, restated, supplemented, renewed,
extended, increased, rearranged and/or substituted from time to time, the
"Credit Agreement"). Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement.
B. The Borrower has advised the Lenders that the Parent Guarantors and the
Borrower do not anticipate to be in compliance with the financial covenant set
forth in Section 8.09(a) of the Credit Agreement with respect to the Measurement
Period ended September 30, 2001 (such anticipated noncompliance is hereinafter
referred to as the "Financial Covenant Default").
C. Pursuant to Section 9.02 of the Credit Agreement, if at the end of any
Fiscal Quarter there exists an Event of Default with respect to Section 8.09(a),
the Borrower may, prior to the date upon which financial statements for such
Fiscal Quarter are required to be delivered pursuant to Section 7.01, cure such
Event of Default by receiving equity contributions from XXXX X.X. II, XXXX X.X.
III and/or Sook (and/or other Persons exercising preemptive rights in connection
with an equity issuance to one or more of them), or a payment pursuant to an
ABRY Capital Contribution Agreement, and applying the proceeds therefrom to
repay Loans and/or to reduce Commitments so that the Consolidated Total Leverage
Ratio, calculated on a Pro Forma Basis after giving effect to any such equity
contributions and repayments, as of the last day of the Fiscal Quarter for which
such Event of Default occurred, do not exceed the ratio set forth in Section
8.09(a).
D. The Administrative Agent has requested that XXXX X.X. III make a cash
equity contribution of $5,000,000 in immediately available funds to the Ultimate
Parent as required by Section 2(a) of the ABRY Capital Contribution Agreement.
E. In satisfaction of Section 2(a) of the ABRY Capital Contribution
Agreement and in order to cure the Financial Covenant Default pursuant to
Section 9.02 of the Credit Agreement, XXXX X.X. II and/or XXXX X.X. III have
proposed purchasing Permitted Parent Preferred Equity (the "Additional Parent
Equity") for an aggregate cash purchase price of $15,000,000 in immediately
available funds on or before the Amendment Effective Date, $5,000,000 of the
proceeds of which shall be used to make a mandatory prepayment of Term Loans
pursuant to Section 2.07(h) of the Credit Agreement to be applied pursuant
Sections 2.07(k), 2.08(b) and 9.02 thereof, and $10,000,000 of the proceeds of
which shall be used to make a voluntary prepayment of Term Loans pursuant to
Section 2.06 of the Credit Agreement to be applied pursuant Sections 2.06(c),
2.08(b) and 9.02 thereof.
F. The consent of the Majority Banks is required in order to allow the
issuance of the Additional Parent Equity pursuant to Section 8.05(l) of the
Credit Agreement inasmuch as the Financial Covenant Default exists prior to such
issuance and pursuant Section 8.14(ii) of the Credit Agreement inasmuch as
certain amendments to the Charter Documents of the Ultimate Parent are required
to authorize the issuance of the Additional Parent Equity.
G. The Borrower and the Ultimate Parent have further advised the
Administrative Agent that they wish to effect the following transactions:
(i) the execution, delivery and performance by Nexstar Broadcasting
of Peoria, L.L.C. ("Nexstar Peoria") of an Outsourcing Agreement with
WYZZ, Inc. with respect to commercial television broadcast station WYZZ,
Peoria-Bloomington, Illinois, substantially in the form previously
provided by the Borrower to the Administrative Agent (the "Outsourcing
Agreement");
(ii) the guaranty by the Ultimate Parent of certain lease
obligations of Mission Broadcasting of Joplin, Inc., a Delaware
corporation ("Mission Joplin"), to SpectraSite Broadcast Towers, Inc. in
connection with the acquisition by Mission Joplin of commercial television
broadcast station KODE-TV, Joplin, Missouri (the "Station"), which
Guaranty Obligations shall be incurred pursuant to documentation
substantially in the form previously provided by the Borrower to the
Administrative Agent (such guaranties are hereinafter referred to
collectively as the "SpectraSite Lease Guaranties"); and
(iii) the execution, delivery and performance by Nexstar
Broadcasting of Joplin L.L.C. ("Nexstar Joplin") of a Shared Services
Agreement with Mission Joplin with respect to the Station substantially in
the form previously provided by the Borrowers to the Administrative Agent
(the "KODE SSA").
H. The written consent of Majority Banks is required prior to the
execution, delivery and performance of the Outsourcing Agreement and the KODE
SSA pursuant to Section 8.04(b) of the Credit Agreement inasmuch as the
Consolidated Total Leverage Ratio immediately prior to the consummation of such
transaction is greater than 5:00:1:00.
2
I. The amendment of Section 8.05 of the Credit Agreement is required prior
to the execution and delivery of the SpectraSite Lease Guaranties inasmuch as
the incurrence of the Guaranty Obligations thereunder is not otherwise permitted
pursuant to Section 8.05 .
J. The Borrower and the Ultimate Parent have requested that the Banks (i)
consent to the issuance of the Additional Parent Equity notwithstanding the
existence of the Financial Covenant Default, (ii) consent to the amendment of
the Charter Documents of the Ultimate Parent in order to permit such issuance,
(iii) consent to the execution, delivery and performance of the Outsourcing
Agreement and the KODE SSA, (iv) amend the Credit Agreement to permit the
execution and delivery of the SpectraSite Lease Guaranties, and (v) amend
certain financial covenants in order to assist the Credit Parties with future
compliance with such covenants, in each case as more fully described
hereinbelow.
K. The several Banks parties to this Amendment are willing to (i) consent
to the issuance of the Additional Parent Equity notwithstanding the existence of
the Financial Covenant Default, (ii) consent to the amendment of the Charter
Documents of the Ultimate Parent in order to permit such issuance, (iii) consent
to the execution, delivery and performance of the Outsourcing Agreement and the
KODE SSA, (iv) amend the Credit Agreement to permit the SpectraSite Lease
Guaranties, and (v) agree to the other amendments to the Credit Agreement set
forth herein, subject in each case to the performance and observance in full of
each of the covenants, terms and conditions, and in reliance upon all of the
representations and warranties of the Borrower and the Ultimate Parent, set
forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants, terms,
conditions, representations and warranties herein contained, the parties hereto
agree hereby as follows:
Section 1. AMENDMENTS. Subject to the covenants, terms and conditions set
forth herein and in reliance upon the representations and warranties of the
Borrower and the Parent Guarantors herein contained, the Borrower, the Parent
Guarantors and the several Banks parties to this Amendment hereby agree to amend
the Credit Agreement, effective as of the Amendment Effective Date (as
hereinafter defined) as follows:
(a) Section 1.01 is amended by deleting existing definition of "Applicable
Margin" and inserting the following in lieu thereof:
"Applicable Margin" means (i) with respect to Term A Loans (other
than Incremental Term Loans) and Revolving Loans (other than Incremental
Revolving Loans) which are Eurodollar Loans, the margin to be added at any
date to the Eurodollar Rate, which is equal to the applicable percentage
rate per annum set forth below, based upon the applicable Level in effect
for the Borrower on such date; (ii) with respect to Term A Loans (other
than Incremental Term Loans) and Revolving Loans (other than Incremental
Revolving Loans) which are Base Rate Loans, the margin to be added at any
date to the Base Rate, which is equal to the percentage per annum which is
1.625% less than the Applicable Margin for Eurodollar Loans then in effect
for the Borrower on such date, but in no event less than zero, (iii) with
respect to Term B Loans which are Eurodollar Loans, (x) while the
applicable Level in effect for the Borrower is Level VII,
3
4.250% , and (y) at all other times, 4.000%; (iv) with respect to Term B
Loans which are Base Rate Loans, 1.625% less than the Applicable Margin
for Term B Loans which are Eurodollar Loans then in effect for the
Borrower on such date, but in no event less than zero; and (iv) with
respect to Incremental Term Loans and Incremental Revolving Loans, the
Incremental Margin to be added to the Base Rate or Eurodollar Rate, as the
case may be, as agreed upon by the Borrower and the Bank or Banks
providing the Incremental Term Commitment and/or Incremental Revolving
Commitment relating thereto as provided in Section 2.16(a), or if not
agreed upon, as provided in Section 2.16(b).
===========================================
Level Applicable Percentage
Rate
===========================================
Level I 2.000%
-------------------------------------------
Level II 2.250%
-------------------------------------------
Level III 2.500%
-------------------------------------------
Level IV 2.750%
-------------------------------------------
Level V 3.000%
-------------------------------------------
Level VI 3.250%
-------------------------------------------
Level VII 3.500%
-------------------------------------------
(b) Section 1.01 is amended by inserting the following sentence at the end
of the existing definition of "Consolidated Operating Cash Flow":
"Notwithstanding the foregoing, the Consolidated Net Income of a
Person attributable from payments accrued to or received by such Person
under any Network Affiliation Agreements to which such Person is a party
shall include only payments actually received or currently receivable by
such Person under such agreements during such period (regardless of the
GAAP treatment thereof) for the purpose of calculating such Person's
Consolidated Operating Cash Flow for such period."
(c) Section 1.01 is amended by deleting the definition of "Level" and
inserting the following definition in lieu thereof:
"Level" means, as of any date of determination, the applicable Level
set forth below which is then in effect, as determined in accordance with
the following provisions of this definition. On the Effective Date and
continuing through and including November 13, 2001, the Level for purposes
of calculating the Applicable Margin shall be deemed to be Level VI, after
November 13, 2001, through and including the day immediately preceding the
first Adjustment Date occurring after September 30, 2001, the Level for
4
purposes of calculating the Applicable Margin shall be deemed to be Level
VII and for each period thereafter beginning on an Adjustment Date and
ending on the day immediately preceding the next succeeding Adjustment
Date, the Level for purposes of calculating the Applicable Margin shall be
the applicable Level set forth below opposite the Consolidated Total
Leverage Ratio determined as at the end of the last Fiscal Quarter ended
prior to the first day of such period. If by any Adjustment Date, the
Borrower has failed to deliver a Compliance Certificate for the then most
recently completed Fiscal Quarter, the Applicable Margin for the next
succeeding period commencing on such Adjustment Date and ending on the
second Business Day after such Compliance Certificate is actually
delivered shall be computed as if the Consolidated Total Leverage Ratio
were at Level VII.
================================================================================
Level Consolidated Total Leverage Ratio
================================================================================
I Less than or equal to 4.50 to 1.00
--------------------------------------------------------------------------------
II Greater than 4.50 to 1.00 but less than or equal to 5.00 to 1.00
--------------------------------------------------------------------------------
III Greater than 5.00 to 1.00 but less than or equal to 5.50 to 1.00
--------------------------------------------------------------------------------
IV Greater than 5.50 to 1.00 but less than or equal to 6.00 to 1.00
--------------------------------------------------------------------------------
V Greater than 6.00 to 1.00 but less than or equal to 6.50 to 1.00
--------------------------------------------------------------------------------
VI Greater than 6.50 to 1.00 but less than or equal to 6.75 to 1.00
--------------------------------------------------------------------------------
VII Greater than 6.75 to 1.00
--------------------------------------------------------------------------------
(d) Section 1.01 is amended by inserting the following proviso at the end
of the existing definition of "Loan Documents" immediately prior to the period:
"provided, that, for the purposes of Sections 9.02 and 11.01 of this
Agreement, the term "Loan Documents" shall not include any Interest Rate
Protection Agreement with any Bank or any Affiliate of any Bank"
(e) Section 2.08 (a)(i) is amended by deleting the date "March 31, 2002"
from the fifth line thereof and inserting the date "June 30, 2003" in lieu
thereof.
(f) Section 2.08 (a)(ii) is amended by deleting the date "March 31, 2002"
from the fifth line thereof and inserting the date "June 30, 2002" in lieu
thereof.
(g) Section 8.05 is further amended by (i) deleting the word "and" from
the end of clause (p), (ii) deleting the period from the end of clause (q) and
inserting a semicolon and the word "and" in lieu thereof, and (iii) adding a new
clause (r) that reads as follows:
"(r) Guaranty Obligations of the Ultimate Parent with respect to
lease obligations under those certain Site Agreements dated as of August
24, 2000 between SpectraSite Broadcast Towers, Inc. and Mission
Broadcasting of Joplin, Inc. (as assignee of GOCOM Broadcasting of Joplin,
LLC) relative to "Towers 19, 20 and 21, Joplin,
5
Missouri" described therein, provided, that such Guaranty Obligations are
incurred pursuant to documentation in form and substance satisfactory to
the Administrative Agent."
(h) Section 8.09(a) is deleted in its entirety and the following is
inserted in lieu thereof:
"(a) Consolidated Total Leverage Ratio. The Consolidated Total
Leverage Ratio shall not at any time during any period set forth below
exceed the ratio set forth opposite such period below:
Period Ratio
---------------------------------------------- ------------------
Effective Date through and including
September 29, 2001 6.75 to 1.00
September 30, 2001 through and including
June 29, 2002 7.75 to 1.00
June 30, 2002 through and including
September 29, 2002 7.25 to 1.00
September 30, 2002 through and including
December 30, 2002 6.50 to 1.00
December 31, 2002 through and including
March 30, 2003 6.00 to 1.00
March 31, 2003 through and including
June 29, 2003 5.50 to 1.00
June 30, 2003 through and including
June 29, 2004 5.25 to 1.00
June 30, 2004 through and including
September 29, 2004 5.00 to 1.00
September 30, 2004 through and including
December 30, 2004 4.75 to 1.00
December 31, 2004 and thereafter 4.00 to 1.00"
(i) Section 8.09(b) is deleted in its entirety and the following is
inserted in lieu thereof:
"(b) Consolidated Senior Leverage Ratio. The Consolidated Senior
Leverage Ratio shall not at any time during any period set forth below
exceed the ratio set forth opposite such period below:
Period Ratio
---------------------------------------------- ----------------
Effective Date through and including
September 29, 2001 4.00 to 1.00
September 30, 2001 through and including
June 29, 2002 3.75 to 1.00
6
Period Ratio
---------------------------------------------- ----------------
June 30, 2002 through and including
September 29, 2002 3.50 to 1.00
September 30, 2002 through and including
March 30, 2003 3.25 to 1.00
March 31, 2003 through and including
June 29, 2003 2.75 to 1.00
June 30, 2003 and thereafter 2.50 to 1.00
(j) Section 8.09(c) is deleted in its entirety and the following is
inserted in lieu thereof:
"(c) Consolidated Interest Coverage Ratio. The Consolidated Interest
Coverage Ratio shall not at any time during any period set forth below be
less than the ratio set forth opposite such period below:
Period Ratio
---------------------------------------------- ----------------
Effective Date through and including
June 29, 2002 1.50 to 1.00
June 30, 2002 through and including
March 30, 2003 1.40 to 1.00
March 31, 2003 through and including
September 29, 2004 1.50 to 1.00
September 30, 2004 through and including
March 30, 2006 1.75 to 1.00
March 31, 2006 through and including
March 30, 2007 2.00 to 1.00
March 31, 2007 and thereafter 2.25 to 1.00"
(k) Section 11.07(a) is amended by deleting the final sentence and
inserting the following in lieu thereof:
"The Borrower and the Administrative Agent hereby grant the consent
required by the immediately preceding sentence with respect to any
assignment that any Bank may from time to time make to any Affiliate or
any Related Fund of such Bank or any assignment that any Bank may from
time to time to any other Bank or any Affiliate or Related Fund of any
other Bank provided that the Borrower and the Administrative Agent are
each given at least three (3) Business Days' written notice prior to the
effective date of such assignment."
The amendments set forth in this Section 1 are limited to the extent
specifically set forth above and no other terms, covenants or provisions of the
Credit Agreement are intended to be effected hereby.
7
Section 2. LIMITED CONSENT. Subject to the covenants, terms and conditions
set forth in this Amendment, and in reliance upon the representations and
warranties of the Borrower and the Parent Guarantors herein contained, the
several Banks parties to this Amendment hereby consent to the following:
(a) the issuance of the Additional Parent Equity notwithstanding the
existence of the Financial Covenant Default immediately prior to such issuance,
provided, that (i) such issuance otherwise complies with all of the other
requirements of Section 8.05(l) of the Credit Agreement (including, without
limitation, the requirements that the Additional Parent Equity satisfy the
definition of Permitted Parent Preferred Equity and that the Net Issuance
Proceeds be applied in accordance with the Section 2.07(f) to the extent
applicable), (ii) $5,000,000 of the proceeds of the Additional Parent Equity
shall be immediately used to make a mandatory prepayment of Term Loans pursuant
to Section 2.07(h) of the Credit Agreement to be applied pursuant Sections
2.07(k), 2.08(b) and 9.02 thereof, and (iii) $10,000,000 of the proceeds of the
Additional Parent Equity shall be immediately used to make a voluntary
prepayment of Term Loans pursuant to Section 2.06 of the Credit Agreement to be
applied pursuant Sections 2.06(c), 2.08(b) and 9.02 thereof;
(b) the amendment of the Charter Documents of the Ultimate Parent in order
to authorize the issuance of the Permitted Parent Preferred Equity, provided,
that such amendment is made pursuant to documentation in form and substance
satisfactory to the Administrative Agent, in its sole discretion;
(c) the execution, delivery and performance of the Outsourcing Agreement
by Nexstar Peoria, which consent is granted pursuant to and in satisfaction of
the consent requirements set forth in Section 8.04(b) of the Credit Agreement,
provided, that (i) the Borrower and the execution, delivery and performance of
the Outsourcing Agreement otherwise comply in all respects with all other
requirements set forth in such Section 8.04(b) and all other requirements set
forth elsewhere in the Credit Agreement or in any of the other Loan Documents,
(ii) the execution and delivery of the Outsourcing Agreement and commencement of
performance of services thereunder occur on or before the date that is 3 months
after the Amendment Effective Date, and (iii) any revisions to the Outsourcing
Agreement from the form previously provided by the Borrower to the
Administrative Agent, and any additional agreements or instruments executed in
connection therewith, shall be in form and substance satisfactory to the
Administrative Agent, in its sole discretion;
(d) the execution, delivery and performance of the KODE SSA by Nexstar
Joplin, which consent is granted pursuant to and in satisfaction of the consent
requirements set forth in Section 8.04(b) of the Credit Agreement, provided,
that (i) the Borrower and the execution, delivery and performance of the KODE
SSA otherwise comply in all respects with all other requirements set forth in
such Section 8.04(b) and all other requirements set forth elsewhere in the
Credit Agreement or in any of the other Loan Documents, and (ii) any revisions
to the KODE SSA from the form previously provided by the Borrower to the
Administrative Agent, and any additional agreements or instruments executed in
connection therewith, shall be in form and substance satisfactory to the
Administrative Agent, in its sole discretion; and
8
(e) the execution, delivery and performance by the parties thereto of the
Third Amendment to Credit Agreement and Limited Consent dated as of even date
herewith relative to the Bastet/Mission Credit Agreement (the "Bastet/Mission
Amendment"), and all transactions described therein.
The consents set forth in this Section 2 are limited to the extent specifically
set forth above and no other terms, covenants or provisions of the Credit
Agreement are intended to be effected hereby.
Section 3. CONDITIONS PRECEDENT. The parties hereto agree that this
Amendment and the consents and amendments contained herein shall not be
effective until the satisfaction of each of the following conditions precedent:
(a) Execution and Delivery of this Amendment. The Administrative Agent
shall have received a copy of this Amendment executed and delivered by each of
the applicable Credit Parties and by all Banks necessary for the effectiveness
of each of the amendments and consents set forth herein pursuant to Section
11.01 of the Credit Agreement.
(b) Representations and Warranties. Each of the representations and
warranties made in this Amendment shall be true and correct on and as of the
Amendment Effective Date as if made on and as of such date, both before and
after giving effect to this Amendment.
(c) Reduction of Loan Commitments. The Borrower shall have permanently
reduced the Aggregate Revolving Commitment by at least $15,000,000 in the
aggregate pursuant to Section 2.05(a) of the Credit Agreement.
(d) Equity Contributions and Compliance Certificate. (i) XXXX X.X. II
and/or XXXX X.X. III shall have purchased the Permitted Parent Preferred Equity
for an aggregate cash purchase price of at least $15,000,000 in immediately
available funds, $5,000,000 of the proceeds of which shall have been used to
make a mandatory prepayment of Term Loans pursuant to Section 2.07(h) of the
Credit Agreement and applied pursuant Sections 2.07(k), 2.08(b) and 9.02
thereof, and $10,000,000 of the proceeds of which shall have been used to make a
voluntary prepayment of Term Loans pursuant to Section 2.06 of the Credit
Agreement and applied pursuant Sections 2.06(c), 2.08(b) and 9.02 thereof, and
(ii) the Ultimate Parent and the Borrower shall have executed and delivered to
the Administrative Agent a certificate executed by a Responsible Officer
containing calculations in detail satisfactory to the Administrative Agent
demonstrating that, after giving effect to the equity contributions and
repayments described in clause (i) hereof on a Pro Forma Basis as of the last
day of the Fiscal Quarter ended September 30, 2001, no Event of Default exists
under Section 8.09(a) of the Credit Agreement with respect to such Fiscal
Quarter or any other covenant thereof.
(e) Fees and Expenses. The Administrative Agent shall have received for
its own account and for the account of each Bank party to this Amendment, an
amendment fee for each Bank party to this Amendment (collectively, the
"Amendment Fees") in an amount equal to the product of (i) 0.125%, multiplied
by, (ii) the sum of the amount of such Bank's Revolving Commitment, plus the
amount of such Lender's outstanding Term A Loans and outstanding
9
Term B Loans, as computed on the Amendment Effective Date after to giving effect
to any reductions to such Bank's Revolving Credit Commitment in satisfaction of
Section 3(c) and 3(d) above and any reductions to such Lender's outstanding Term
A Loans and Term B Loans, as applicable, occurring on the Amendment Effective
Date as a result of the satisfaction of the condition precedent described in
Section 3(c) and 3(d) above. The Amendment Fees shall be nonrefundable and shall
be deemed to have been earned in full when this Amendment has been executed and
delivered to the Administrative Agent by the Borrowers and Lenders constituting
the Majority Lenders, whether or not the Amendment Effective Date occurs. In
addition, the Borrowers shall pay the estimated fees, costs and out-of-pocket
expenses incurred by counsel to the Administrative Agent in connection with the
preparation, negotiation, execution and delivery of this Amendment, the
Bastet/Mission Amendment, and all transaction contemplated hereby and thereby.
(f) Effectiveness of Bastet/Mission Amendment. All conditions precedent to
the effectiveness to the Bastet/Mission Amendment shall have been satisfied in a
manner reasonably satisfactory to the Administrative Agent of such credit
facility.
Section 4. REPRESENTATIONS AND WARRANTIES. To induce the Administrative
Agent and the several Banks parties hereto to enter into this Amendment and to
agree to grant the consents and make the amendments contained herein and in the
Bastet/Mission Amendment, each of the Borrower and the Parent Guarantors
represents and warrants to the Administrative Agent and the Banks as follows:
(a) Authorization; No Contravention. The execution, delivery and
performance by the applicable Credit Parties of this Amendment have been duly
authorized by all necessary partnership, corporate or limited liability company
action, as applicable, and do not and will not (i) contravene the terms of any
Charter Documents of any Credit Party, (ii) conflict with or result in any
breach or contravention of, or the creation of any Lien under, any document
evidencing any Contractual Obligation to which any Credit Party is a party or
any order, injunction, writ or decree of any Governmental Authority to which any
Credit Party is a party or its property is subject, or (iii) violate any
Requirement of Law.
(b) Governmental Authorization. No approval, consent, exemption,
authorization or other action by, or notice to, or filing with or approvals
required under state blue sky securities laws or by any Governmental Authority
is necessary or required in connection with the execution, delivery, performance
or enforcement of this Amendment.
(c) No Default. No Default or Event of Default exists under any of the
Loan Documents. No Credit Party is in default under or with respect to (i) its
Charter Documents or (ii) any material Contractual Obligation of such Person.
The execution, delivery and performance of this Amendment shall not result in
any default under any Contractual Obligation of any Credit Party in any respect.
(d) Binding Effect. This Amendment and the Credit Agreement as amended
hereby constitute the legal, valid and binding obligations of the Credit Parties
that are parties thereto, enforceable against such Credit Parties in accordance
with their respective terms, except as
10
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles of general applicability.
(e) Representations and Warranties. The representations and warranties set
forth in the Credit Agreement and the other Loan Documents are true and correct
in all material respects on and as of the Amendment Effective Date, both before
and after giving effect to the amendments contemplated in this Amendment, as if
such representations and warranties were being made on and as of the Amendment
Effective Date.
Section 5. MISCELLANEOUS
(a) Ratification and Confirmation of Loan Documents. Except for the
specific consents and amendments expressly set forth in this Amendment, the
terms, provisions, conditions and covenants of the Credit Agreement and the
other Loan Documents remain in full force and effect and are hereby ratified and
confirmed, and the execution, delivery and performance of this Amendment shall
not in any manner operate as a waiver of, consent to or amendment of any other
term, provision, condition or covenant of the Credit Agreement or any other Loan
Document. Without limiting the generality of the foregoing, the consents set
forth in Section 2 of this Amendment shall be limited precisely as set forth
above, and nothing in this Amendment shall be deemed (i) to constitute a waiver
of compliance or consent to noncompliance by any of the Credit Parties with
respect to any other term provision, condition or covenant of the Credit
Agreement or other Loan Documents; (ii) to prejudice any right or remedy that
the Administrative Agent or the Banks may now have or may have in the future
under or in connection with the Credit Agreement or any other Loan Document; or
(iii) to constitute a waiver of compliance or consent to noncompliance by any of
the Credit Parties with respect to the terms, provisions, conditions and
covenants of the Credit Agreement made the subject hereof.
(b) Fees and Expenses. The Borrower and the Parent Guarantors jointly and
severally agree to pay on demand all reasonable costs and expenses of the
Administrative Agent in connection with the preparation, reproduction,
execution, and delivery of this Amendment and any other documents prepared in
connection herewith, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent.
(c) Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
(d) APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
(e) Counterparts and Amendment Effective Date. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such
11
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment shall become effective when each of the
conditions precedent set forth in Section 3 of this Amendment have been
satisfied (the "Amendment Effective Date").
(f) Affirmation of Guarantees. Notwithstanding that such consent is not
required thereunder, each of the Parent Guarantors and the other Guarantors
hereby consent to the execution and delivery of this Amendment and the
Bastet/Mission Amendment and reaffirm their respective obligations under each of
the Guaranty Agreements to which such Guarantors are parties.
(g) Confirmation of Loan Documents and Liens. As a material inducement to
the Banks to agree to grant the consents set forth herein, to amend the Credit
Agreement as set forth herein and to enter into the Bastet/Mission Amendment,
the Borrowers and the Guarantors hereby (i) acknowledge and confirm the
continuing existence, validity and effectiveness of the Loan Documents to which
they are parties, including, without limitation the Guaranty Agreements, the
Security Documents, and the Liens granted under the Security Documents, (ii)
agrees that the execution, delivery and performance of this Amendment and the
Nexstar Amendment shall not in any way release, diminish, impair, reduce or
otherwise adversely affect such Loan Documents and Liens and (iii) acknowledges
and agrees that the Liens granted under the Security Documents secure payment of
the Obligations under the Loan Documents in the same priority as on the date
such Liens were created and perfected, and the performance and observance by the
Borrowers and the other Credit Parties of the covenants, agreements and
conditions to be performed and observed by each under the Credit Agreement, as
amended hereby, and the Bastet Mission Credit Agreement, as amended by the
Bastet/Mission Amendment.
(h) FINAL AGREEMENT. THIS AMENDMENT, TOGETHER WITH THE CREDIT AGREEMENT
AND OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
12
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers
effective as of the Amendment Effective Date.
BORROWER:
NEXSTAR FINANCE, L.L.C.
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President, Finance
PARENT GUARANTORS:
NEXSTAR BROADCASTING GROUP, L.L.C.
NEXSTAR BROADCASTING OF
NORTHEASTERN PENNSYLVANIA, INC.
NEXSTAR BROADCASTING OF JOPLIN, INC.
NEXSTAR BROADCASTING OF ERIE, INC.
NEXSTAR BROADCASTING OF
BEAUMONT/PORT XXXXXX, INC.
NEXSTAR BROADCASTING OF WICHITA FALLS, INC.
NEXSTAR BROADCASTING OF ROCHESTER, INC.
NEXSTAR BROADCASTING OF ABILENE, INC.
ERC HOLDINGS, INC.
NEXSTAR MIDWEST HOLDINGS, INC.
NEXSTAR BROADCASTING OF CHAMPAIGN, INC.
NEXSTAR BROADCASTING OF PEORIA, INC.
NEXSTAR BROADCASTING OF
MIDLAND-ODESSA, INC.
NEXSTAR BROADCASTING OF LOUISIANA, INC.
NEXSTAR FINANCE HOLDINGS, L.L.C.
NEXSTAR FINANCE HOLDINGS II, L.L.C.
NEXSTAR FINANCE HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President, Finance
ADMINISTRATIVE AGENT AND BANKS:
BANK OF AMERICA, N.A.,
as Administrative Agent and as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BARCLAYS BANK PLC,
as a Bank
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
FIRST UNION NATIONAL BANK,
as a Bank
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as a Bank
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
CIBC INC.,
as a Bank
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Director
ELC (Cayman) Ltd. 1999 - II
ELC (Cayman) Ltd. 1999 - III
ELC (Cayman) Ltd. 2000 - I
APEX (IDM) CDO I, Ltd.
XXXXX CLO Ltd. 2000-I,
as a Bank
By: /s/ Xxxx X. Xxxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Senior Vice President
OTHER GUARANTORS (for purposes of Section 5(f) and 5(g) hereof):
NEXSTAR BROADCASTING OF ABILENE, L.L.C.
NEXSTAR BROADCASTING OF BEAUMONT/ PORT XXXXXX, L.L.C.
NEXSTAR BROADCASTING OF CHAMPAIGN, L.L.C.
ENTERTAINMENT REALTY CORPORATION
NEXSTAR BROADCASTING OF ERIE, L.L.C.
NEXSTAR BROADCASTING OF JOPLIN, L.L.C.
NEXSTAR BROADCASTING OF LOUISIANA, L.L.C.
NEXSTAR BROADCASTING OF MIDLAND-ODESSA, L.L.C.
NEXSTAR BROADCASTING OF THE MIDWEST, INC.
NEXSTAR BROADCASTING GROUP, INC.
NEXSTAR BROADCASTING OF NORTHEASTERN PENNSYLVANIA, L.L.C.
NEXSTAR FINANCE, INC.
NEXSTAR BROADCASTING OF PEORIA, L.L.C.
NEXSTAR BROADCASTING OF ROCHESTER, L.L.C.
NEXSTAR BROADCASTING OF WICHITA FALLS, L.L.C.
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Title: Vice President of Finance of each of the
above-named entities
BASTET BROADCASTING, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
MISSION BROADCASTING OF WICHITA FALLS, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
MISSION BROADCASTING OF JOPLIN, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
