EXHIBIT 10.52
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
NEXSTAR FINANCE, L.L.C.,
NEXSTAR BROADCASTING GROUP, L.L.C.
AND CERTAIN OF ITS SUBSIDIARIES
FROM TIME TO TIME PARTIES HERETO,
THE SEVERAL FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTIES HERETO,
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT,
BEAR XXXXXXX CORPORATE LENDING INC.
AS SYNDICATION AGENT
AND
ROYAL BANK OF CANADA,
GENERAL ELECTRIC CAPITAL CORPORATION
AND
XXXXXXX XXXXX CAPITAL,
A DIVISION OF XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES INC.
AS CO-DOCUMENTATION AGENTS
--------------------------
BANK OF AMERICA SECURITIES LLC,
AND
BEAR, XXXXXXX & CO. INC.
AS JOINT LEAD ARRANGERS
AND JOINT BOOK MANAGERS
-----------------------------
DATED AS OF FEBRUARY 13, 2003
-----------------------------
TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS.......................................................................... 2
1.01 DEFINED TERMS......................................................................... 2
1.02 OTHER DEFINITIONAL PROVISIONS......................................................... 43
1.03 ACCOUNTING PRINCIPLES................................................................. 45
1.04 CLASSES AND TYPES OF LOANS AND BORROWINGS............................................. 45
ARTICLE II. THE CREDIT FACILITIES............................................................... 46
2.01 AMOUNTS AND TERMS OF COMMITMENTS...................................................... 46
2.02 LOAN ACCOUNTS; NOTES.................................................................. 49
2.03 PROCEDURE FOR BORROWING............................................................... 49
2.04 CONVERSION AND CONTINUATION ELECTIONS FOR ALL BORROWINGS.............................. 51
2.05 REDUCTION AND TERMINATION OF COMMITMENTS.............................................. 52
2.07 MANDATORY PREPAYMENTS................................................................. 53
2.08 MATURITY AND AMORTIZATION OF LOANS.................................................... 57
2.09 FEES.................................................................................. 58
2.10 COMPUTATION OF FEES AND INTEREST...................................................... 59
2.11 INTEREST.............................................................................. 59
2.12 PAYMENTS BY THE BORROWER.............................................................. 60
2.13 PAYMENTS BY THE BANKS TO THE ADMINISTRATIVE AGENT..................................... 61
2.14 SHARING OF PAYMENTS, ETC.............................................................. 62
2.15 SECURITY DOCUMENTS AND GUARANTY AGREEMENTS............................................ 62
2.16 PROCEDURE FOR INCREMENTAL LOAN REQUESTS............................................... 63
ARTICLE III. LETTERS OF CREDIT.................................................................. 64
3.01 LETTER OF CREDIT SUBFACILITY.......................................................... 64
3.02 PROCEDURES FOR ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT................... 65
3.03 PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS........................................... 67
3.04 REPAYMENT OF PARTICIPATIONS........................................................... 68
3.05 ROLE OF THE ISSUING BANK.............................................................. 69
3.06 OBLIGATIONS ABSOLUTE.................................................................. 70
3.07 CASH COLLATERAL PLEDGE................................................................ 71
3.08 LETTER OF CREDIT FEES................................................................. 71
3.09 APPLICABILITY OF ISP98 AND UCP........................................................ 71
3.10 CONFLICT WITH LETTER OF CREDIT APPLICATION............................................ 72
ARTICLE IV. TAXES, YIELD PROTECTION AND ILLEGALITY.............................................. 72
4.01 TAXES................................................................................. 72
4.02 ILLEGALITY............................................................................ 76
4.03 INCREASED COSTS AND REDUCTION OF RETURN............................................... 76
4.04 FUNDING LOSSES........................................................................ 77
4.05 INABILITY TO DETERMINE RATES.......................................................... 78
i
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4.06 RESERVES ON EURODOLLAR LOANS.......................................................... 78
4.07 CERTIFICATES OF BANKS................................................................. 78
4.08 CHANGE OF LENDING OFFICE, REPLACEMENT BANK............................................ 78
4.09 SURVIVAL.............................................................................. 79
ARTICLE V. CONDITIONS PRECEDENT................................................................. 79
5.01 CONDITIONS TO THE EFFECTIVE DATE...................................................... 79
5.02 ADDITIONAL CONDITIONS TO THE EFFECTIVE DATE........................................... 82
5.03 CONDITIONS TO ALL BORROWINGS AND THE ISSUANCE OF ANY LETTERS OF CREDIT................ 83
ARTICLE VI. REPRESENTATIONS AND WARRANTIES...................................................... 84
6.01 EXISTENCE; COMPLIANCE WITH LAW........................................................ 84
6.02 CORPORATE, LIMITED LIABILITY COMPANY OR PARTNERSHIP AUTHORIZATION; NO CONTRAVENTION... 85
6.03 GOVERNMENTAL AUTHORIZATION............................................................ 85
6.04 BINDING EFFECT........................................................................ 85
6.05 LITIGATION............................................................................ 85
6.06 NO DEFAULT............................................................................ 86
6.07 ERISA COMPLIANCE...................................................................... 86
6.08 USE OF PROCEEDS; MARGIN REGULATIONS................................................... 86
6.09 OWNERSHIP OF PROPERTY; INTELLECTUAL PROPERTY.......................................... 87
6.10 TAXES................................................................................. 87
6.11 FINANCIAL STATEMENTS.................................................................. 88
6.12 SECURITIES LAW, ETC.; COMPLIANCE...................................................... 88
6.13 GOVERNMENTAL REGULATION............................................................... 88
6.14 ACCURACY OF INFORMATION............................................................... 88
6.15 HAZARDOUS MATERIALS................................................................... 88
6.16 FCC LICENSES.......................................................................... 89
6.17 SUBSIDIARIES; CAPITAL STOCK OF NEXSTAR FINANCE HOLDINGS............................... 90
6.18 SOLVENCY.............................................................................. 90
6.19 LABOR CONTROVERSIES................................................................... 90
6.20 SECURITY DOCUMENTS.................................................................... 90
6.21 NETWORK AFFILIATION AGREEMENTS........................................................ 91
6.22 CONDITION OF STATIONS................................................................. 91
6.23 SPECIAL PURPOSE ENTITIES.............................................................. 91
ARTICLE VII. AFFIRMATIVE COVENANTS.............................................................. 91
7.01 FINANCIAL STATEMENTS.................................................................. 91
7.02 CERTIFICATES; OTHER INFORMATION....................................................... 92
7.03 NOTICES............................................................................... 93
7.04 FCC INFORMATION....................................................................... 93
7.05 FCC LICENSES AND REGULATORY COMPLIANCE................................................ 94
7.06 LICENSE LAPSE......................................................................... 94
7.07 MAINTENANCE OF CORPORATE, LIMITED LIABILITY COMPANY OR PARTNERSHIP EXISTENCE, ETC..... 94
7.08 FOREIGN QUALIFICATION, ETC............................................................ 94
7.09 PAYMENT OF TAXES, ETC................................................................. 95
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7.10 MAINTENANCE OF PROPERTY; INSURANCE.................................................... 95
7.11 COMPLIANCE WITH LAWS, ETC............................................................. 95
7.12 BOOKS AND RECORDS..................................................................... 95
7.13 USE OF PROCEEDS....................................................................... 95
7.14 END OF FISCAL YEARS; FISCAL QUARTERS.................................................. 96
7.15 INTEREST RATE PROTECTION.............................................................. 96
7.16 ADDITIONAL SECURITY; FURTHER ASSURANCES............................................... 96
ARTICLE VIII. NEGATIVE COVENANTS................................................................ 97
8.01 CHANGES IN BUSINESS................................................................... 97
8.02 LIMITATION ON LIENS................................................................... 97
8.03 DISPOSITION OF ASSETS................................................................. 99
8.04 CONSOLIDATIONS, MERGERS, ACQUISITIONS, ETC............................................ 100
8.05 LIMITATION ON INDEBTEDNESS............................................................ 103
8.06 TRANSACTIONS WITH AFFILIATES.......................................................... 106
8.07 USE OF CREDITS; COMPLIANCE WITH MARGIN REGULATIONS.................................... 106
8.08 ENVIRONMENTAL LIABILITIES............................................................. 107
8.09 FINANCIAL COVENANTS................................................................... 107
8.10 RESTRICTED PAYMENTS................................................................... 109
8.11 ADVANCES, INVESTMENTS AND LOANS....................................................... 112
8.13 SALES OR ISSUANCES OF CAPITAL STOCK................................................... 114
8.14 NO WAIVERS, AMENDMENTS, OR RESTRICTIVE AGREEMENTS..................................... 115
ARTICLE IX. EVENTS OF DEFAULT................................................................... 115
9.01 EVENT OF DEFAULT...................................................................... 115
9.02 REMEDIES.............................................................................. 118
9.03 RIGHTS NOT EXCLUSIVE.................................................................. 119
9.04 APPLICATION OF FUNDS.................................................................. 119
ARTICLE X. THE ADMINISTRATIVE AGENT, THE ISSUING BANK, THE SYNDICATION AGENT,
THE LEAD ARRANGERS AND JOINT BOOK MANAGERS .......................................... 120
10.01 APPOINTMENT AND AUTHORIZATION......................................................... 120
10.02 DELEGATION OF DUTIES.................................................................. 121
10.03 LIABILITY OF AGENTS................................................................... 121
10.04 RELIANCE BY THE AGENTS................................................................ 122
10.05 NOTICE OF DEFAULT..................................................................... 122
10.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY THE AGENTS.............................. 122
10.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT............................................... 123
10.08 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY........................................... 124
10.09 SUCCESSOR ADMINISTRATIVE AGENT........................................................ 124
10.10 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM......................................... 125
10.11 COLLATERAL AND GUARANTY MATTERS....................................................... 125
10.12 OTHER AGENTS; ARRANGERS AND MANAGERS.................................................. 126
ARTICLE XI. MISCELLANEOUS....................................................................... 126
11.01 AMENDMENT AND WAIVERS................................................................. 126
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11.02 NOTICES............................................................................... 128
11.03 NO WAIVER; CUMULATIVE REMEDIES........................................................ 129
11.04 COSTS AND EXPENSES.................................................................... 129
11.05 INDEMNITY............................................................................. 130
11.06 SUCCESSORS AND ASSIGNS................................................................ 131
11.07 ASSIGNMENTS, PARTICIPATIONS, ETC...................................................... 131
11.08 CONFIDENTIALITY....................................................................... 134
11.09 SET-OFF............................................................................... 135
11.10 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC....................................... 135
11.11 COUNTERPARTS.......................................................................... 136
11.12 SEVERABILITY.......................................................................... 136
11.13 NO THIRD PARTIES BENEFITED............................................................ 136
11.14 GOVERNING LAW AND JURISDICTION; WAIVER OF TRIAL BY JURY............................... 136
11.15 EFFECTIVENESS......................................................................... 137
11.16 SURVIVAL OF REPRESENTATIONS AND WARRANTIES............................................ 138
SCHEDULE 1.01(A) LENDING OFFICES/NOTICE ADDRESSES
SCHEDULE 1.01(B) PRO FORMA ADJUSTMENTS TO CONSOLIDATED OPERATING CASH FLOW
SCHEDULE 1.01(C) DESCRIPTION OF PERMITTED REVOLVER REALLOCATION
SCHEDULE 2.01 COMMITMENTS
SCHEDULE 6.09 MORTGAGED PROPERTIES
SCHEDULE 6.16 FCC LICENSES
SCHEDULE 6.17 SUBSIDIARIES
SCHEDULE 6.21 NETWORK AFFILIATION AGREEMENTS
SCHEDULE 8.05(a) EXISTING INDEBTEDNESS
SCHEDULE 8.11(e) INVESTMENTS
EXHIBIT A Form of Assignment and Assumption
EXHIBIT B Form of Borrower Subordinated Convertible Promissory Note
EXHIBIT C Form of Closing Certificate
EXHIBIT D Form of Compliance Certificate
EXHIBIT E-1 Form of Confirmation Agreement for the Security Agreement
EXHIBIT E-2 Form of Confirmation Agreement for the Pledge and Security Agreement
EXHIBIT E-3 Form of Confirmation Agreement for the Guaranty Agreements
EXHIBIT F-1 Form of Global Assignment and Assumption (Nexstar)
EXHIBIT F-2 Form of Global Assignment and Assumption (Mission)
EXHIBIT G Form of Information Certificate
EXHIBIT H Form of Notice of Borrowing
EXHIBIT I Form of Notice of Conversion/Continuation
EXHIBIT J-1 Form of Parent Subordinated Convertible Promissory Note (prior to effective date of Mergers)
EXHIBIT J-2 Form of Parent Subordinated Convertible Promissory Note (upon effective date of Mergers)
EXHIBIT K-1 Form of Ratification and Assumption Agreement (Post-Mergers Ultimate Parent)
EXHIBIT K-2 Form of Ratification and Assumption Agreement (Nexstar Finance Holdings, Inc.)
EXHIBIT K-3 Form of Ratification and Assumption Agreement (Nexstar Finance, Inc.)
EXHIBIT L Form of Revolving Loan Note
EXHIBIT M Form of Solvency Certificate
EXHIBIT N Form of Term B Loan Note
v
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February
13, 2003, is among NEXSTAR FINANCE, L.L.C., a limited liability company
organized under the laws of the State of Delaware, NEXSTAR BROADCASTING GROUP,
L.L.C., a limited liability company organized under the laws of the State of
Delaware, certain of its Subsidiaries from time to time parties to this
Agreement, the several banks and other financial institutions or entities from
time to time parties hereto (the "Banks"), BANK OF AMERICA, N.A., as the
Administrative Agent for the Banks, BEAR XXXXXXX CORPORATE LENDING INC., as the
Syndication Agent and ROYAL BANK OF CANADA, GENERAL ELECTRIC CAPITAL CORPORATION
and XXXXXXX XXXXX CAPITAL, A DIVISION OF XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC., as the Co-Documentation Agents.
RECITALS
A. The Borrower, the Ultimate Parent, the Subsidiaries of the
Ultimate Parent parties thereto, the Administrative Agent, and the several banks
parties thereto entered into that certain Amended and Restated Credit Agreement
dated as of June 14, 2001 (as amended by that certain First Amendment to Amended
and Restated Credit Agreement and Limited Consent dated as of November 14, 2001,
and that certain Second Amendment to Credit Agreement, Limited Consent and
Limited Waiver dated as of June 4, 2002, the "Existing Nexstar Credit
Agreement").
B. Pursuant to a Global Assignment and Acceptance dated as of even
date herewith, the Banks parties to the Existing Nexstar Credit Agreement have
assigned certain of their rights and obligations under the Existing Nexstar
Credit Agreement to the several Banks parties to such Global Assignment and
Acceptance.
C. The parties wish to amend and restate the Existing Nexstar
Credit Agreement, which amendment and restatement is in extension and renewal,
and not in extinguishment or novation, of the indebtedness outstanding under the
Existing Nexstar Credit Agreement, as herein provided, it being acknowledged and
agreed by the Borrower, the Ultimate Parent and the other Parent Guarantors that
the Indebtedness under this Agreement constitutes an extension and renewal of
the outstanding indebtedness under the Existing Nexstar Credit Agreement, and
that all Liens and Guaranty Agreements that secure the repayment of outstanding
indebtedness under the Existing Nexstar Credit Agreement shall continue to
secure Indebtedness under this Agreement.
In consideration of the mutual agreements, provisions and covenants
contained herein, the parties agree that the Existing Nexstar Credit Agreement
shall be and hereby is amended and restated in its entirety as follows:
1
ARTICLE I.
DEFINITIONS
1.01 Defined Terms. All capitalized terms used and not otherwise
defined in this Agreement, including in the Preamble hereto, shall have the
meanings specified below:
"ABRY Fund" means XXXX X.X. II, XXXX X.X. III, XXXX X.X. IV, or any
investment entity controlled by, controlling, or under common control with XXXX
X.X. II, XXXX X.X. III and/or XXXX X.X. IV.
"XXXX X.X. II" means ABRY Broadcast Partners II, L.P., a limited
partnership organized under the laws of the State of Delaware.
"XXXX X.X. III" means ABRY Broadcast Partners III, L.P., a limited
partnership organized under the laws of the State of Delaware.
"XXXX X.X. IV" means ABRY Partners IV, L.P., a limited partnership
organized under the laws of the State of Delaware.
"Acquired Properties" means television station KACB licensed to San
Angelo, Texas and television station KRBC licensed to Abilene, Texas
(collectively, the "LIN Stations") and television station KARK licensed to
Little Rock, Arkansas and television station WDHN licensed to Dothan, Alabama
(station KARK and station WDHN are collectively referred to herein as the
"Xxxxxx Stations").
"Acquisition" means, with respect to any Person, the occurrence of any
of the following specified events: (i) any transaction or series of transactions
for the purpose of, or resulting in, directly or indirectly, any of the
following (including without limitation, any such transaction or transactions in
connection with a like-kind exchange or otherwise): (a) the acquisition by such
Person of all or substantially all of the assets of another Person, or of any
business or division of another Person, or any television broadcasting station,
(b) the acquisition by such Person of more than 50% of any class of Capital
Stock (or similar ownership interests) of any other Person, (c) a merger,
consolidation, amalgamation, or other combination by such Person with another
Person or (ii) the entering into of any Local Marketing Agreement, Joint Sales
Agreement and/or Shared Services Agreement, or other similar agreement by such
Person. The terms "Acquired" and "Acquisition of " shall have correlative
meanings.
"Acquisition Cash Flow Percentage" means on any date of determination,
with respect to any Pending Acquisition, that percentage the numerator of which
is the sum of (a) the aggregate amount of purchase consideration paid through
the date of determination in connection with such Pending Acquisition plus (b)
the Acquisition Set-Aside Amount for such Pending Acquisition (if any), and the
denominator of which is the aggregate amount of all related purchase or option
consideration paid, owed or to be owed by any Nexstar Entity or any Mission
Entity (other than adjustments to be determined on or after the date of closing
of such Pending Acquisition), including, without limitation, amounts to be owed
upon the exercise (if any) of any related purchase option (or similar purchase
contingencies or purchase options) in connection with such Pending Acquisition.
2
"Acquisition Set-Aside Amount" means, with respect to any Pending
Acquisition on any date of determination, and subject to the remainder of this
definition, that certain amount of cash of the Borrower deposited by the
Borrower in an interest bearing deposit account at Bank of America, under the
control of the Administrative Agent, such deposit account to be subject to a
first and prior Lien in favor of the Administrative Agent on behalf of the Banks
securing the Obligations. The Borrower agrees that, in order for any Acquisition
Set-Aside Amount to be taken into account in any calculation made under this
Agreement as provided for herein, (i) no more than one Acquisition Set-Aside
Amount (whether concurrent or consecutive, provided that the Borrower may
increase any existing Acquisition Set-Aside Amount until such time as the
Borrower removes any funds from any such Acquisition Set-Aside Amount) shall be
permitted to be established with respect to any one Pending Acquisition, and
(ii) all of the funds in each such Acquisition Set-Aside Amount shall remain on
deposit and under the control of the Administrative Agent until the earlier of
(a) consummation of the purchase by one or more Nexstar Entities or Mission
Entities of 100% of the Capital Stock of the Person, or 100% of the ownership of
the assets (as applicable), to be acquired in the related Pending Acquisition,
(b) delivery of evidence satisfactory to the Administrative Agent that the
related Pending Acquisition has been terminated or abandoned, or (c) receipt by
the Administrative Agent of a Compliance Certificate delivered pursuant to the
terms of Section 7.02(a), which such Compliance Certificate demonstrates that
the financial covenants certified thereby were computed as if the Acquisition
Set-Aside Amount related to such Pending Acquisition were the remaining
Acquisition Set-Aside Amount (if any) after giving effect to the proposed
removal of funds from such account. Notwithstanding the foregoing, the Borrower
shall be permitted to make no more than one withdrawal of funds pursuant to the
preceding clause (c) from any particular Acquisition Set-Aside Amount. Amounts
qualifying for treatment as "Acquisition Set-Aside Amounts" hereunder may not be
included by any Nexstar Entity or any Mission Entity in any calculation of "cash
on hand" or similar calculation.
"Additional Security Documents" has the meaning specified in Section
7.16(a).
"Adjusted Working Capital" means for any Person, (i) the current assets
of such Person (excluding cash and Cash Equivalents) minus (ii) the current
liabilities of such Person (excluding the current portion of any long-term
Indebtedness (including Capital Lease Obligations), and excluding deferred
income tax liabilities, of such Person), each as determined on a consolidated
basis.
"Adjustment Date" means, with respect to any calculation of the
Applicable Margin following any Fiscal Quarter of the Borrower, the earlier of
(i) the date which is 45 days after the end of such Fiscal Quarter (or, in the
case of the fourth Fiscal Quarter of any Fiscal Year of the Borrower, the date
which is 90 days after the end of such Fiscal Quarter) and (ii) the date which
is two Business Days after the Borrower has delivered a Compliance Certificate
to the Administrative Agent with respect to such Fiscal Quarter.
"Administrative Agent" means Bank of America, N.A. in its capacity as
Administrative Agent for the Banks hereunder, and any successor to such agent.
3
"Administrative Agent's Payment Office" means the address for payments
set forth on the signature page hereto in relation to the Administrative Agent
or such other address as the Administrative Agent may from time to time specify
in accordance with Section 11.02.
"Affiliate" means, with respect to any Person, any other Person (i)
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person or (ii) that directly or indirectly owns more
than 5% of any class of the capital stock of, or equity interests in, 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.
"Agent-Related Persons" means the Agents, together with their Affiliates
(including, in the case of (i) Bank of America in its capacity as the
Administrative Agent, Banc of America Securities LLC and (ii) Bear Xxxxxxx
Corporate Lending Inc., in its capacity as the Syndication Agent, Bear, Xxxxxxx
& Co. Inc.), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Agents" means the Administrative Agent and the Syndication Agent.
"Aggregate Available Revolving Commitment" means the sum of the
Available Revolving Commitments of all Banks.
"Aggregate Combined Revolving Commitment" means the sum of the Aggregate
Revolving Commitment, plus the Aggregate Incremental Revolving Commitment.
"Aggregate Commitment" means the sum of the Aggregate Revolving
Commitment, plus the Aggregate Term B Commitment, plus the Aggregate Incremental
Revolving Commitment, plus the Aggregate Incremental Term Commitment of all of
the Banks.
"Aggregate Incremental Revolving Commitment" at any time, means the sum
of the amount of all Incremental Facilities consisting of Incremental Revolving
Commitments at such time, in an initial amount equal to zero, as such amount may
be increased pursuant to Section 2.01(c) to an aggregate amount which, when
combined with the Aggregate Incremental Term Commitment, may not exceed the
Maximum Incremental Amount.
"Aggregate Incremental Term Commitment" at any time, means the sum of
the amount of all Incremental Facilities consisting of Incremental Term
Commitments (whether or not terminated) at such time, in an initial amount equal
to zero, as such amount may be increased pursuant to Section 2.01(c) to an
aggregate amount which, when combined with the Aggregate Incremental Revolving
Commitment, may not exceed the Maximum Incremental Amount.
"Aggregate Outstanding Term B Loan Balance" means the sum of the
aggregate outstanding principal balances of all Term B Loans, as such amount may
be adjusted from time to time pursuant to this Agreement.
4
"Aggregate Revolving Commitment" means the sum of the Revolving
Commitments of all of the Banks, in an initial amount of $50,000,000, as such
amount may be adjusted from time to time pursuant to this Agreement.
"Aggregate Term B Commitment" means the sum of the Term B Commitments of
all of the Banks, in an initial amount of $130,000,000, as such amount may be
adjusted from time to time pursuant to this Agreement.
"Agreement" means this Second Amended and Restated Credit Agreement,
including the Schedules and Exhibits hereto, as the same may be amended,
modified, restated, supplemented, renewed, extended, increased, rearranged
and/or substituted from time to time.
"Anticipated Reinvestment Amount" means, with respect to any
Reinvestment Election, the amount specified in the Reinvestment Notice delivered
by the Borrower in connection therewith as the amount of the Net Cash Proceeds
from the related Disposition that the Borrower or any Subsidiary of the Borrower
intends to use to purchase, construct or otherwise acquire Reinvestment Assets.
"Applicable Margin" means
(i) with respect to Term B 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 Consolidated Total Leverage as set forth below (the "Level"), in
effect for the Borrower on such date;
(ii) with respect to Term B 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 1.25% less than the Applicable Margin for
Eurodollar Loans then in effect for the Borrower on such date, but in no event
less than zero, and
(iii) 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 CONSOLIDATED TOTAL LEVERAGE RATIO APPLICABLE PERCENTAGE RATE
FOR REVOLVING LOANS
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Level I Greater than or equal to 6.25 to 1.00 3.25%
Level II Less than 6.25 to 1.00 but greater than or equal 3.00%
to 5.75 to 1.00
5
LEVEL CONSOLIDATED TOTAL LEVERAGE RATIO APPLICABLE PERCENTAGE RATE
FOR REVOLVING LOANS
--------------------------------------------------------------------------------------------------------
Level III Less that 5.75 to 1.00 but greater than or equal 2.75%
to 5.25 to 1.00
Level IV Less than 5.25 to 1.00 but greater than or equal 2.50%
to 4.75 to 1.00
Level V Less than 4.75 to 1.00 but greater than or equal 2.25%
to 4.25 to 1.00
Level VI Less than 4.25 to 1.00 2.00%
LEVEL CONSOLIDATED TOTAL LEVERAGE RATIO APPLICABLE PERCENTAGE RATE
FOR REVOLVING LOANS*
--------------------------------------------------------------------------------------------------------
Level I Greater than or equal to 5.50 to 1.00 3.00%
Level II Less than 5.50 to 1.00 2.75%
On the Effective Date and continuing through and including the day before the
first Adjustment Date after June 30, 2003, the Level for purposes of calculating
the Applicable Margin shall be deemed to be Level I 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 above
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
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 I.
"Approved Fund" has the meaning specified in Section 11.07.
"Assignment and Assumption" means an Assignment and Assumption,
substantially in the form of Exhibit A.
----------
* As adjusted in accordance with Section 2.16(a).
6
"Attorney Costs" means and includes all reasonable documented fees and
disbursements of any law firm or other external counsel and, without
duplication, the reasonable allocated cost of internal legal services, and all
reasonable disbursements of internal counsel.
"Authorization" means any filing, recording and registration with, and
any validation or exemption, approval, order, authorization, consent, License,
certificate, franchise and permit from, any Governmental Authority, including,
without limitation, FCC Licenses.
"Available Revolving Commitment" means, at any time as to any Bank, an
amount equal to the excess, if any, of (i) the amount of the Revolving
Commitment of such Bank at such time, over (ii) the sum of the outstanding
principal balances of all Revolving Loans of such Bank plus the sum of all
participations of such Bank in Letter of Credit Obligations at such time.
"Bank Affiliate" means a Person engaged primarily in the business of
commercial banking and that is an Affiliate of a Bank.
"Bank of America" means Bank of America, N.A., a national banking
association.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
"Banks" has the meaning specified in the Preamble hereto and such term
shall also include the Issuing Bank, the Administrative Agent in its capacity as
a lender hereunder and the Syndication Agent in its capacity as a lender
hereunder.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means any Loan that bears an interest rate based on the
Base Rate.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Securities and Exchange Act of 1934, as amended.
"Board of Directors" means, as to any Person, either (a) the board of
directors of such Person (or, in the case of any Person that is a limited
liability company, the managers of such Person) or (b) any duly authorized
committee thereof.
"Board Resolution" means, as to any Person, a copy of a resolution of
such Person certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by requisite action of the Board of Directors of such
Person and to be in full force and effect on the date of such certification.
7
"Borrower" means Nexstar Finance, L.L.C., a Delaware limited liability
company; provided that upon consummation of the Borrower Merger, "Borrower"
shall mean Nexstar Finance, Inc., a Delaware corporation.
"Borrower Merger" has the meaning specified in the definition of
"Mergers".
"Borrower Subordinated Convertible Promissory Note" means a promissory
note of the Borrower, payable to the order of Nexstar Finance Holdings,
substantially the form of Exhibit B.
"Borrowing" has the meaning specified in Section 1.04.
"Borrowing Date" means, in relation to any Loan, the date of the
borrowing of such Loan as specified in the relevant Notice of Borrowing.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in Dallas, Texas or New York City are authorized or
required by law to close and, if such term is used in relation to any Eurodollar
Loan or the Interest Period therefor, on such day dealings are carried on by and
between banks in Dollar deposits in the applicable interbank market.
"Capital Adequacy Regulation" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, regarding capital adequacy
of any bank or of any corporation controlling a bank.
"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 incurred during such period; it being understood that "Capital
Expenditures" shall not include, without duplication, non-cash payments and
payments made or accrued in respect of Film Obligations or Consolidation
Expenses.
"Capital Lease" has the meaning specified in the definition of "Capital
Lease Obligations".
"Capital Lease Obligations" means, with respect to any Person, all
monetary obligations of such Person under any leasing or similar arrangement
which, in accordance with GAAP, is classified as a capital lease (a "Capital
Lease").
"Capital Stock" means (i) any capital stock, partnership, membership,
joint venture or other ownership or equity interest, participation or securities
(whether voting or non-voting, whether preferred, common or otherwise, and
including any stock appreciation, contingent interest or similar right) and (ii)
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,
8
membership, joint venture or other ownership or equity interest, participation
or security described in clause (i) above.
"Cash Collateralize" with respect to any Person, means to pledge and
deposit with or deliver to the Administrative Agent, for the benefit of the
Administrative Agent, the Issuing Bank and the Banks, as collateral for the
Letter of Credit Obligations, cash or deposit account balances of such Person
pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the Issuing Bank (which documents are hereby consented
to by the Banks). Derivatives of such term shall have corresponding meanings.
The Borrower hereby grants to the Administrative Agent, for the benefit of the
Administrative Agent, the Issuing Bank and the Banks, a security interest in all
such cash and deposit account balances of the Borrower. Cash Collateral shall be
invested in Cash Equivalents of a tenor satisfactory to the Administrative Agent
and as instructed by the Borrower, which Cash Equivalents shall be held in the
name of the Borrower and under the control of the Administrative Agent in a
manner satisfactory to the Administrative Agent.
"Cash Equivalents" means any or all of the following: (i) obligations
of, or guaranteed as to interest and principal by, the United States government
maturing within one year after the date on which such obligations are purchased;
(ii) open market commercial paper of any corporation (other than any Nexstar
Entity or any Affiliate of any Nexstar Entity) incorporated under the laws of
the United States or any State thereof or the District of Columbia rated P-1 or
its equivalent by Xxxxx'x or A-1 or its equivalent or higher by S&P; (iii) time
deposits or certificates of deposit maturing within one year after the issuance
thereof issued by commercial banks organized under the laws of any country which
is a member of the OECD and having a combined capital and surplus in excess of
$250,000,000 or which is a Bank or Xxxxx Brothers Xxxxxxxx & Co.; (iv)
repurchase agreements with respect to securities described in clause (i) above
entered into with an office of a bank or trust company meeting the criteria
specified in clause (iii); and (v) money market funds investing only in
investments described in clauses (i) through (iv).
"Cash Redemption Funding" means the distribution by the Borrower to
Nexstar Finance Holdings of cash in an amount equal to the amount of the Cash
Redemption Payment, followed by a distribution by Nexstar Finance Holdings to
Nexstar Finance Holdings II in the same amount, followed by the transfer (by
means of one or more distributions or loans among Nexstar Finance Holdings II,
one or more of the Parent Guarantors that own the Capital Stock of Nexstar
Finance Holdings II and the Ultimate Parent) by Nexstar Finance Holdings II to
the Ultimate Parent in the same amount, each to be effected not earlier than the
date of the Initial Public Offering and prior to the Preferred Redemption.
"Cash Redemption Payment" means cash in an amount equal to the excess of
the amount of the aggregate redemption price payable upon the redemption of the
Existing Parent Preferred Equity on the date of the Initial Public Offering over
the aggregate unpaid principal amount of, and unpaid accrued interest on, the
Holdings II Notes distributed to holders of Existing Parent Preferred Equity as
part of the Preferred Redemption on such date.
"Change of Control" means, prior to the effective time of the Mergers,
any of the following:
9
(i) either (x) the aggregate remaining cost basis of the ABRY Funds'
combined equity interests in the Ultimate Parent shall be less than $50,000,000
or (y) the ABRY Funds, taken together, shall cease to be able to elect a
majority of the Board of Directors of the Ultimate Parent;
(ii) the ABRY Funds, taken together, shall cease to directly or
indirectly own and hold at least (x) 66 2/3% on a fully diluted basis of the
voting interests in the Ultimate Parent and (y) 51% on a fully diluted basis of
the economic interests in the Ultimate Parent (excluding Permitted Parent
Preferred Equity);
(iii) the ABRY Funds, taken together, shall neither directly nor
indirectly control management of the Ultimate Parent whether by ownership of
voting securities, contract or otherwise;
(iv) the Ultimate Parent shall cease to own, directly or indirectly,
100% on a fully diluted basis of the Capital Stock of each Parent Guarantor;
(v) the Parent Guarantors which are direct Subsidiaries of the
Ultimate Parent shall cease to own, directly or indirectly, 100% on a fully
diluted basis of the Capital Stock of Nexstar Finance Holdings;
(vi) Nexstar Finance Holdings shall cease to own 100% on a fully
diluted basis of the Capital Stock of the Borrower; or
(vii) Nexstar Finance Holdings II shall cease to own 100% of the
Capital Stock of Nexstar Finance Holdings;
provided, however, upon the effective time of the Mergers, "Change of Control"
shall mean any of the following:
(viii) either (x) the aggregate remaining cost basis of the ABRY Funds'
combined equity interests in the Ultimate Parent shall be less than $50,000,000
or (y) the ABRY Funds, taken together, shall cease to be able to elect a
majority of the Board of Directors of the Ultimate Parent;
(ix) the ABRY Funds, taken together, shall cease to directly or
indirectly own and hold at least (x) 66 2/3% on a fully diluted basis of the
voting interests in the Ultimate Parent and (y) 51% on a fully diluted basis of
the economic interests in the Ultimate Parent (excluding Permitted Parent
Preferred Equity);
(x) the ABRY Funds, taken together, shall neither directly nor
indirectly control management of the Ultimate Parent whether by ownership of
voting securities, contract or otherwise;
(xi) the Ultimate Parent shall cease to own, directly or indirectly,
100% on a fully diluted basis of the Capital Stock of Nexstar Finance Holdings;
or
10
(xii) Nexstar Finance Holdings shall cease to own 100% on a fully
diluted basis of the Capital Stock of the Borrower;
provided, further, that upon consummation of the Initial Public Offering,
"Change of Control" shall mean any of the following:
(xiii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any Person,
other than a Principal, becomes the Beneficial Owner, directly or indirectly, of
more than 35% of the Voting Stock of the Ultimate Parent, measured by voting
power rather than number of shares;
(xiv) a majority of the Board of Directors of the Ultimate Parent
shall cease to be Continuing Directors;
(xv) at any time during the first 18 months after the consummation of
the Initial Public Offering, the Principals, taken together, shall cease to
directly or indirectly own and hold at least 35% on a fully diluted basis of the
Voting Stock of the Ultimate Parent, measured by voting power rather than number
of shares;
(xvi) the Ultimate Parent shall cease to own, directly or indirectly,
100% on a fully diluted basis of the Capital Stock of each Parent Guarantor; or
(xvii) Nexstar Finance Holdings shall cease to own 100% on a fully
diluted basis of the Capital Stock of the Borrower.
"Charter Documents" means, with respect to any Person, (i) the articles
or certificate of formation, incorporation or organization (or the equivalent
organizational documents) of such Person, (ii) the bylaws, partnership
agreement, limited liability company agreement or regulations (or the equivalent
governing documents) of such Person and (iii) 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" has the meaning specified in Section 1.04.
"Closing Certificate" means a Closing Certificate substantially in the
form of Exhibit C.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any regulations promulgated thereunder.
"Co-Documentation Agents" means Royal Bank of Canada, General Electric
Capital Corporation and Xxxxxxx Xxxxx Capital, a division of Xxxxxxx Xxxxx
Business Financial Services Inc., in their capacity as Co-Documentation Agents
for the Banks hereunder, and any successors to such agents.
"Collateral" means the Pledged Collateral, the Security Agreement
Collateral and the Mortgaged Properties.
11
"Collateral Agent" means the Administrative Agent acting as collateral
agent pursuant to the Security Documents.
"Commitment" means, for each Bank, the sum of its Revolving Commitment,
its Term B Commitment and any Incremental Revolving Commitment and/or
Incremental Term Commitment of such Bank issued after the Effective Date
pursuant to Section 2.01(c) and Section 2.16.
"Communications Act" has the meaning specified in Section 6.16.
"Compliance Certificate" means, as to any Person, a certificate of such
Person executed on its behalf by the Chief Executive Officer, President, Chief
Financial Officer or Vice President of such Person, substantially in the form of
Exhibit D, with such changes as acceptable to the Administrative Agent.
"Confirmation Agreements" means (i) a Confirmation Agreement for the
Security Agreement, substantially in the form of Exhibit E-1, (ii) a
Confirmation Agreement for the Pledge and Security Agreement, substantially in
the form of Exhibit E-2 and (ii) a Confirmation Agreement for the Guaranty
Agreements, substantially in the form of Exhibit E-3.
"Consolidated Amortization Expense" means, for any period, for any
Person, the consolidated amortization expense (including amortization of Film
Obligations and goodwill) of such Person and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Cash Interest Expense" means, for any period, for any
Person, Consolidated Interest Expense for such Person for such period, but
excluding to the extent otherwise included therein, (i) interest expense to the
extent not payable in cash (e.g., interest or dividends on securities which must
(or may, at the election of such Person or any of its Subsidiaries) be paid in
additional securities, imputed interest, amortization of original issue discount
and/or by an addition to the accreted value thereof, or non-cash accounting
adjustments relating to derivatives transactions or contracts) during such
period, (ii) amortization of discount during such period, and (iii) deferred
financing costs during such period.
"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 Fixed Charge Coverage Ratio" means, on any date, the ratio
of (a) Consolidating Operating Cash Flow of the Borrower and it Subsidiaries for
the applicable Measurement Period to (b) the sum of (without duplication) (i)
Consolidated Cash Interest Expense of the Ultimate Parent and it Subsidiaries
(other than in respect of Indebtedness described in Section 8.05(i)), plus (ii)
all scheduled principal payments on Indebtedness of the Ultimate Parent and its
Subsidiaries on a consolidated basis, excluding with respect to this subsection
(ii) only, (A) scheduled payments on Permitted Holdings Unsecured Indebtedness
and (B) the payment of principal of the Loans due on their respective Maturity
Dates, plus (iii) Capital Expenditures of the Ultimate Parent and it
Subsidiaries, plus (iv) accrued current income tax expense for the Ultimate
Parent and its Subsidiaries (other than any such expense
12
paid or payable during such period with respect to extraordinary gains) on a
consolidated basis, plus (v) the amount of cash Dividends paid by the Ultimate
Parent and its Subsidiaries on a consolidated basis in respect of Permitted
Parent Preferred Equity, plus (vi) Restricted Payments made to Persons that are
not Nexstar Entities under Section 8.10(d) (excluding payments made pursuant to
Section 8.10(d)(ii)), Section 8.10(e) and Section 8.10(k), in each case for the
Measurement Period relating to such date.
"Consolidated Interest Coverage Ratio" means, on any date, the ratio of
(i) Consolidated Operating Cash Flow of the Borrower and its Subsidiaries for
the Measurement Period relating to such date to (ii) the Consolidated Cash
Interest Expense (other than in respect of Indebtedness described in Section
8.05(i)) of the Ultimate Parent and its Subsidiaries for such Measurement
Period.
"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 Leases) 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, (i) 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, (ii)
income of any other Person accrued prior to the date (A) any such other Person
becomes a Subsidiary of the Person whose net income is being determined, (B) 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 (C) 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 determined, (iii) the income of any Subsidiary of such Person during
such period to the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of such income is not at the time
permitted by operation of the terms of its Charter Documents or any other
agreement binding on such Subsidiary or any Requirement of Law applicable to
such Subsidiary or such Person or any of its other Subsidiaries, (iv) 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 (v) to the extent included in
calculating such 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, (i) Consolidated Net Income of such Person for such period plus (ii) (to
the extent deducted in calculating such Consolidated Net Income) the sum of,
without duplication, (A) Consolidated
13
Depreciation Expense, (B) Consolidated Amortization Expense, (C) Consolidated
Interest Expense, (D) income tax expense for such Person and its Subsidiaries
(other than any such expense with respect to extraordinary gains), and (E)
recurring and non-recurring non-cash losses and expenses (determined on a
consolidated basis) less (iii) the sum of (A) Film Cash Payments becoming due
and payable during such period and (B) (to the extent included in calculating
such Consolidated Net Income) non-cash revenues, in each case (notwithstanding
clause (ii) of the proviso in the definition of "Consolidated Net Income")
calculated, if applicable, on a Pro Forma Basis (except for purposes of
calculating the Consolidated Fixed Charge Coverage Ratio and the Consolidated
Interest Coverage Ratio) after giving effect to (x) any sale or disposition of
any Station as if the same were consummated or became effective on the first day
of such period and (y) subject to the provisos set forth below, any Acquisition,
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
Acquisition and as otherwise provided in this Agreement, (1) 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, 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), in each case
as may be satisfactory to the Administrative Agent and (2) with respect to any
Pending Acquisition, Consolidated Operating Cash Flow shall be increased by, at
the Borrower's option, (i) the applicable Acquisition Cash Flow Percentage
multiplied by the operating cash flow for such period of the Person or assets to
be Acquired (calculated in the manner set forth above with respect to the
calculation of Consolidated Operating Cash Flow, but ignoring the provisos
thereto, other than the following proviso), or (ii) 100% of such operating cash
flow for such period of the Person or assets to be Acquired, so long as, if the
Borrower selects the method described in this clause (ii), an amount equal to,
without duplication, the sum of (x) 100% of any Indebtedness owed by any such
Person and to be assumed or repaid by any Nexstar Entity or Mission Entity in
connection with such Pending Acquisition (giving effect to any Acquisition of a
Person in the determination of Nexstar Entities and Mission Entities) plus (y)
100% of any related purchase consideration owed or to be owed by any Nexstar
Entity or any Mission Entity under any purchase contingency, or upon the
exercise of any purchase option (or similar contingencies or options) in
connection with such Pending Acquisition (less any related Acquisition Set-Aside
Amount) is included in the calculation of "Consolidated Total Debt" and/or
"Indebtedness", as applicable and without duplication; provided further that, if
applicable, Consolidated Operating Cash Flow shall also reflect the adjustments
thereto set forth on Schedule 1.01(B). Notwithstanding the foregoing, the
Consolidated Net Income of a Person attributable from payments accrued to or
received by such Person or any of its Subsidiaries under any Network Affiliation
Agreements to which such Person or any of its Subsidiaries is a party shall
include only payments actually received or currently receivable by such Person
or any of its Subsidiaries 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.
"Consolidated Senior Leverage Ratio" means, on any date, the ratio of
(i) the Consolidated Total Debt of the Borrower and its Subsidiaries on such
date (other than Permitted Borrower Subordinated Indebtedness, Permitted Seller
Subordinated Indebtedness (including any Permitted Seller Subordinated
Indebtedness, as that term is defined in the Mission Credit
14
Agreement), and Indebtedness evidenced by Borrower Subordinated Convertible
Promissory Notes) over the lesser of (x) the cash on hand of the Borrower and
its Subsidiaries on such date (exclusive of any Acquisition Set-Aside Amount)
and (y) $15,000,000, to (ii) the Consolidated Operating Cash Flow of the
Borrower and its Subsidiaries for the applicable Measurement Period relating to
such date.
"Consolidated Total Debt" means, for any Person on any date, the
Indebtedness of such Person and its Subsidiaries on such date, determined on a
consolidated basis in accordance with GAAP. Consolidated Total Debt shall be
calculated on such date giving effect to any Acquisition (and all resulting
borrowings and other consequences) consummated or to be consummated on such
date.
"Consolidated Total Leverage Ratio" means, on any date, the ratio of (a)
the Consolidated Total Debt of the Borrower and its Subsidiaries on such date
(other than Indebtedness (i) that matures after the latest maturity date of the
Loans and is subject to payment-in kind interest payments, but only for so long
as such interest payments are payment-in-kind or (ii) evidenced by the Borrower
Subordinated Convertible Promissory Notes) over the lesser of (x) the cash on
hand of the Borrower and its Subsidiaries on such date (exclusive of any
Acquisition Set-Aside Amount) and (y) $15,000,000, to (b) the Consolidated
Operating Cash Flow of the Borrower 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 on
a consolidated basis during such period related to the consolidation of
Stations.
"Continuation Date" means any date as of which the Borrower elects to
continue a Eurodollar Loan as a Eurodollar Loan for a further Interest Period in
accordance with the provisions of Section 2.04.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Ultimate Parent who (i) was a member of
such board of directors or similar governing persons of the Ultimate Parent on
the Effective Date; (ii) was nominated for election or elected to such Board of
Directors with approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or election; or (iii) was
nominated by one or more Principals owning at least 20% of the Voting Stock
(measured by voting power rather than the number of shares) of the Ultimate
Parent at the time of such nomination.
"Contractual Obligation" 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.
"Conversion Date" means any date as of which the Borrower elects to
convert a Base Rate Loan to a Eurodollar Loan, or a Eurodollar Loan to a Base
Rate Loan, in each case in accordance with the provisions of Section 2.04.
"Credit Event" means the making of any Loan or the issuance of any
Letter of Credit.
15
"Credit Parties" means the collective reference to the Parent Guarantors
(including but not limited to Nexstar Finance Holdings II and Nexstar Finance
Holdings), the Borrower, the Subsidiary Guarantors, the Mission Entities and any
other Person hereafter executing and delivering a Security Document or a
Guaranty Agreement or any equivalent document for the benefit of the
Administrative Agent and/or any Bank; provided that Xxxxx X. Xxxxx will not be
deemed to be a Credit Party.
"Default" 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 Default.
"Disbursement Date" has the meaning specified in Section 3.03(b).
"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 Majority Banks and the Administrative Agent),
in a single transaction or a series of related transactions, by any Nexstar
Entity to any Person (other than the Borrower or any Wholly-Owned Subsidiary of
the Borrower) of any assets or property of any Nexstar Entity, excluding (i)
assets or property disposed of in the ordinary course of business of such
Nexstar Entity and (ii) 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.
"Disqualified Stock" means any Capital Stock which, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), at the option of the holder thereof or upon the happening of any
event, matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, or is redeemable, at the option of the holder thereof,
in whole or in part.
"Dividend" means, with respect to any Person, that such Person has
authorized, declared or paid a dividend or returned any equity capital to
holders of its Capital Stock as such or made any other distribution, payment or
delivery of property or cash to holders of its Capital Stock as such.
"Dollars" and "$" each mean lawful money of the United States.
"Domestic Lending Office" shall have the meaning specified in the
definition of "Lending Office".
"Effective Date" has the meaning specified in Section 11.15.
16
"Eligible Assignee" has the meaning specified in Section 11.07.
"Environmental Claim" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations or proceedings relating in any way to
any violation of, or liability under, any Environmental Law or any permit
issued, or any approval given, under any such Environmental Law (hereafter,
"Claims"), including, without limitation, (i) any and all Claims by governmental
or regulatory authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any applicable Environmental Law, and
(ii) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from
Hazardous Materials arising from alleged injury or threat of injury to health,
safety or the environment.
"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, 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.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with any Nexstar Entity within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) for purposes of
provisions relating to Sections 412, 414(t)(2) and 4971 of the Code).
"ERISA Event" means (i) a Reportable Event with respect to a Pension
Plan or a Multiemployer Plan which could reasonably be expected to result in a
material liability to any Nexstar Entity; (ii) a withdrawal by any Nexstar
Entity or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as
such a withdrawal under Section 4062(e) of ERISA where such withdrawal or
cessation could reasonably be expected to result in a material liability to any
Nexstar Entity; (iii) a complete or partial withdrawal by any Nexstar Entity or
any ERISA Affiliate from a Multiemployer Plan which could reasonably be expected
to result in a material liability to any Nexstar Entity or notification that a
Multiemployer Plan is insolvent or in reorganization; (iv) the filing of a
notice of intent to terminate other than under a standard termination pursuant
to Section 4041(b) of ERISA where such standard termination or the process of
affecting such standard termination will not result in a material liability to
any Nexstar Entity or an ERISA Affiliate, the treatment of a plan amendment as a
termination under Section 4041 or 4041A of ERISA or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (v) a
failure by any Nexstar Entity or any ERISA Affiliate to make required
contributions to a Pension Plan, Multiemployer Plan or other Plan subject to
Section 412 of the Code; (vi) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
17
Multiemployer Plan; (vii) the imposition of any material liability under Title
IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007
of ERISA, upon any Nexstar Entity or any ERISA Affiliate; or (viii) an
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code with respect to any Plan.
"Eurodollar Base Rate" has the meaning specified in the definition of
Eurodollar Rate.
"Eurodollar Lending Office" has the meaning specified in the definition
of "Lending Office".
"Eurodollar Loan" means any Loan that bears interest rate computed on
the basis of the Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
Eurodollar Rate = Eurodollar Base Rate
--------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall not be available,
the rate per annum equal to the rate determined by the Administrative Agent to
be the offered rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in Dollars
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum determined by the Administrative Agent as the
rate of interest at which deposits in Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the
Eurodollar Loan being made, continued or converted by Bank of America and with a
term equivalent to such Interest Period would be offered by Bank of America's
London Branch to major banks in the London interbank eurodollar market at their
request at approximately 4:00 p.m. (London time) two Business Days prior to the
first day of such Interest Period.
18
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Bank,
under regulations issued from time to time by the Federal Reserve Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities"). The Eurodollar
Rate for each outstanding Eurodollar Loan shall be adjusted automatically as of
the effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" means any of the events or circumstances specified in
Section 9.01.
"Excess Cash Flow" means for any Person for any period,
(a) the sum for such period of (i) Consolidated Net Income; plus
(ii) Consolidated Amortization Expense and Consolidated Depreciation
Expense, in each case to the extent deducted in determining such
Consolidated Net Income; plus (iii) non-cash charges, to the extent
deducted in determining such Consolidated Net Income;
less (to the extent not already deducted in determining
Consolidated Net Income);
(b) the sum for such period of (i) Capital Expenditures of such
Person and its consolidated Subsidiaries and payments becoming due and
payable during such period by such Person and its consolidated
Subsidiaries in respect of Film Obligations; plus (ii) Consolidation
Expenses of such Person for such period; plus (iii) (A) Adjusted Working
Capital of such Person as determined on the last day of such period
minus (B) Adjusted Working Capital of such Person as determined on the
first day of such period; plus (iv) regularly scheduled payments of
principal and voluntary prepayments of principal of (x) Term B Loans,
(y) to the extent accompanied by a Commitment reduction, Revolving Loans
and (z) other Indebtedness, by such Person and its consolidated
Subsidiaries, to the extent not prohibited hereunder; plus (v) all
Restricted Payments paid by such Person or any of its consolidated
Subsidiaries (other than to such Person or any such Subsidiary)
permitted by Section 8.10; plus (vi) all non-cash revenues and gains, to
the extent included in determining such Consolidated Net Income; plus
(vii) gains realized in respect of Dispositions, to the extent included
in determining such Consolidated Net Income.
"Excluded Proceeds" means (A) proceeds from the sale or issuance of
Capital Stock of, or cash contributions to, the Ultimate Parent, including
Indebtedness of the type described in Section 8.05(i), from an ABRY Fund or Sook
(or other Persons exercising preemptive rights in connection with an issuance of
Capital Stock to one or more of them), (B) Net Issuance Proceeds, not to exceed
an aggregate of $500,000, from Capital Stock (other than Disqualified Stock)
issuances by the Ultimate Parent to employees of the Ultimate Parent or any
Nexstar Entity, except to Sook, (C) prior to the effective time of the Mergers,
subsequent cash capital contributions and/or intercompany loans made by any
Nexstar Entity to a Subsidiary (or to Nexstar Finance Holdings II, in the case
of those Nexstar Entities that collectively own all of the issued and
outstanding Capital Stock of Nexstar Finance Holdings II) with any of the
proceeds described in the foregoing clauses (A) or (B), upon such Nexstar
Entity's receipt, directly or
19
indirectly through other Nexstar Entities, of such proceeds, (D) after the
effective time of the Mergers, cash capital contributions and/or intercompany
loans made by any Nexstar Entity to a Subsidiary with any of the proceeds
described in the foregoing clauses (A) or (B), upon such Nexstar Entity's
receipt, directly or indirectly through other Nexstar Entities, of such proceeds
and (E) Net Issuance Proceeds from the Initial Public Offering as received by
the Ultimate Parent and contributed down to any Nexstar Entity.
"Existing Nexstar Credit Agreement" has the meaning specified in Recital
A.
"Existing Parent Preferred Equity" means, the Series AA Preferred
Interests and the Series BB Preferred Interests of the Ultimate Parent
outstanding as of the Effective Date.
"FCC" means the Federal Communications Commission.
"FCC License" has the meaning specified in Section 6.16.
"Facility Percentage" means, as to any Bank at any time, the quotient
(expressed as a percentage) of (i) the sum of (A) such Bank's Revolving
Commitment (as in effect at such time) or, if such Revolving Commitment has been
terminated in full, such Bank's outstanding Revolving Loans and participations
in Letter of Credit Obligations (or, without duplication, obligations held by
the Issuing Bank in respect of Letter of Credit Obligations, in the case of the
Issuing Bank), plus (B) the sum of each of such Bank's Commitments under each
Incremental Facility (as in effect at such time) or, with respect to any
Incremental Facility with respect to which such Commitments have been terminated
in full, such Bank's outstanding Incremental Loans under such Incremental
Facility, plus (C) such Bank's Term B Commitment (as in effect at such time),
or, if such Term B Commitment has been terminated in full, such Bank's
outstanding Term B Loans, divided by (ii) the sum of (A) the Aggregate Revolving
Commitment (as in effect at such time) or, if the Aggregate Revolving Commitment
has been terminated in full, the aggregate principal amount of outstanding
Revolving Loans and Letter of Credit Obligations, plus (B) the sum of all Banks'
Commitments under each Incremental Facility (as in effect at such time) or, with
respect to any Incremental Facility with respect to which such Commitments have
been terminated in full, such Banks' outstanding Incremental Loans under such
Incremental Facility, plus (C) the Aggregate Term B Commitment (as in effect at
such time) or, if such Aggregate Term B Commitment has been terminated in full,
the Aggregate Outstanding Term B Loan Balance.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
20
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any successor thereto.
"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 becoming due and payable during such period 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 Borrower and
its Subsidiaries.
"Fiscal Quarter" means each of the following quarterly periods: (i)
January 1 of each calendar year through and including March 31 of such calendar
year, (ii) April 1 of each calendar year through and including June 30 of such
calendar year, (iii) July 1 of each calendar year through and including
September 30 of such calendar year and (iv) October 1 through and including
December 31 of such calendar year.
"Fiscal Year" means a calendar year.
"Form W-8BEN" has the meaning specified in Section 4.01(f)(i).
"Form W-8ECI" has the meaning specified in Section 4.01(f)(i).
"Former Major Network Affiliate" at any time means any Station that, at
such time, is not subject to a Network Affiliation Agreement with a Major
Television Network, if either (i) such Station is subject to a Network
Affiliation Agreement with a Major Television Network on the Effective Date, or
(ii) if such Station is not a Station on the Effective Date, then such Station
was subject to a Network Affiliation Agreement with a Major Television Network
on the date it became a Station; provided that, for purposes of this definition
and Section 9.01(n), two or more Stations that substantially simulcast the same
programming will be deemed to be a single Station so long as they do so.
"Fund" has the meaning specified in Section 11.07.
"GAAP" means generally accepted accounting principles set forth from
time to time 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, which are
applicable to the circumstances as of the date of determination.
"Global Assignment and Assumption" means Global Assignment and
Assumptions to be executed by each financial institution party to the Existing
Nexstar Credit Agreement, each financial institution party to the Mission Credit
Agreement and each Bank that is a party hereto in substantially the forms
attached as Exhibits F-1 and F-2, respectively.
21
"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).
"Guarantor" means each Credit Party which is a party to a Guaranty
Agreement.
"Guaranty Agreements" means each Parent Guaranty Agreement, the Mission
Guaranty of Nexstar Obligations, the Nexstar Guaranty of Mission Obligations,
the Subsidiary Guaranty Agreement, each Guaranty Supplement to each of the
foregoing and any other agreement executed and delivered to the Administrative
Agent guaranteeing any of the Obligations, and any and all amendments,
modifications, restatements, extensions, increases, rearrangements and/or
substitutions of any of the foregoing.
"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 (i) to purchase, repurchase or
otherwise acquire such primary obligations or any property constituting direct
or indirect security therefor; (ii) to advance or provide funds (x) for the
payment or discharge of any such primary obligation, or (y) 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; (iii) 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 (iv) 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 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.
"Guaranty Supplements" means each of the Guaranty Supplements which are
attached to the Guaranty Agreements as Annex A thereto.
"Hazardous Material" means and includes (i) any asbestos,
urea-formaldehyde, PCBs or dioxins or insulation or other material composed of
or containing asbestos, PCBs or dioxins, (ii) crude oil, any fraction thereof,
and any petroleum product, (iii) any natural gas, natural gas liquids, liquefied
natural gas or other natural gas product or synthetic gas, and (iv) any
hazardous or toxic waste, substance or material or pollutant or contaminant
defined as such in (or for purposes of), or that may result in the imposition of
liability under, any Environmental Law.
22
"Holdco Merger" has the meaning specified in the definition of
"Mergers".
"Holdings Subordinated Convertible Promissory Note" means an unsecured,
subordinated promissory note of Nexstar Finance Holdings that is convertible
into common equity of Nexstar Finance Holdings on substantially the same terms
as a Borrower Subordinated Convertible Promissory Note is convertible into
common equity of the Borrower and that is otherwise in form and substance
reasonably acceptable to the Administrative Agent.
"Holdings II Notes" has the meaning specified in the definition of
"Preferred Redemption".
"Holdings II Notes Repayment" means the repayment by the Ultimate Parent
(as the successor to Nexstar Finance Holdings II after the Parent Mergers) in
full, in cash, of the unpaid principal amounts of, and unpaid accrued interest
on, the Holdings II Notes distributed by the Ultimate Parent in partial
redemption of the Existing Parent Preferred Equity from a portion of the Net
Issuance Proceeds of the Initial Public Offering.
"Incremental Commitment Fee" has the meaning specified in Section
2.16(a).
"Incremental Facility" means an aggregation of Incremental Revolving
Commitments or Incremental Term Commitments, as the case may be, of one or more
Banks which are made available to the Borrower and become effective on the same
date, pursuant to the same Incremental Loan Amendment.
"Incremental Loan" means any Incremental Revolving Loan and/or
Incremental Term Loan advanced by a Bank pursuant to Section 2.01(c), Section
2.03 and Section 2.16.
"Incremental Loan Amendment" has the meaning specified in Section
2.01(c)(i).
"Incremental Margin" has the meaning specified in Section 2.16(a).
"Incremental Revolving Bank" means each Bank that has an Incremental
Revolving Commitment or that is a holder of an Incremental Revolving Loan.
"Incremental Revolving Commitment" has the meaning specified in Section
2.16(a).
"Incremental Revolving Loan" has the meaning specified in Section
2.01(c)(i).
"Incremental Term Bank" means each Bank that has an Incremental Term
Commitment or that is the holder of an Incremental Term Loan.
"Incremental Term Commitment" has the meaning specified in Section
2.16(a).
"Incremental Term Loan" has the meaning specified in Section 2.01(c)(i).
"Incremental Term Maturity Date" means for any Incremental Loan the
earliest of (i) the date upon which the final scheduled payment of principal of
such Incremental Term Loan shall be due and payable pursuant to the applicable
Incremental Loan Amendment, which such date
23
shall in no event be earlier December 31, 2010, (ii) the date on which the Term
B Loans (other than Incremental Term Loans) become due and payable in full prior
to the Stated Term B Maturity Date pursuant to acceleration or otherwise and
(iii) the date which is six months prior to the earlier of (x) the maturity of
any Permitted Borrower Subordinated Indebtedness that is then outstanding and
(y) the maturity of any Permitted Holdings Unsecured Indebtedness that is then
outstanding.
"Incremental Upfront Fee" has the meaning specified in Section 2.16(a).
"Indebtedness" of any Person means, without duplication, (i) all
indebtedness for borrowed money; (ii) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than (x)
trade payables entered into in the ordinary course of business pursuant to
ordinary terms and (y) ordinary course purchase price adjustments); (iii) 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; (iv) 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; (v) 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); (vi) all Capital Lease
Obligations; (vii) all net obligations with respect to Interest Rate Protection
Agreements; (viii) Disqualified Stock; (ix) all indebtedness referred to in
clauses (i) through (viii) 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 (x) all Guaranty
Obligations in respect of obligations of the kinds referred to in clauses (i)
through (ix) above.
"Indemnified Liabilities" has the meaning specified in Section 11.05.
"Indemnified Person" has the meaning specified in Section 11.05.
"Information Certificate" means a certificate of the Borrower executed
on the Borrower's behalf by a Responsible Officer of the Borrower, substantially
in the form of Exhibit G.
"Initial Borrowing Date" means the date, occurring on the Effective
Date, on which the initial Credit Event occurs.
"Initial Public Offering" means the sale by the corporation that
survives the Parent Mergers of shares of its common stock in a public offering
registered under the Securities Act of 1933.
"Insolvency Proceeding" means (i) 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 (ii) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors, or other, similar
24
arrangement in respect of its creditors generally; in each case undertaken under
U.S. Federal, State or foreign law, including the Bankruptcy Code.
"Intellectual Property" has the meaning specified in Section 6.09.
"Interest Payment Date" means (i) with respect to any Base Rate Loan,
the last Business Day of each calendar quarter and the Maturity Date, (ii) with
respect to any Eurodollar Loan, the last day of each Interest Period applicable
to such Eurodollar Loan and the date such Eurodollar Loan is repaid or prepaid;
provided, however, that if any Interest Period for any Eurodollar Loan exceeds
three months, then the date which falls three months after the beginning of such
Interest Period or, if applicable, at the end of any three-month interval
thereafter shall also be an "Interest Payment Date" for such Eurodollar Loan.
"Interest Period" means, in relation to any Eurodollar Loan, the period
commencing on the applicable Borrowing Date or any Conversion Date or
Continuation Date with respect thereto and ending on the date one, two, three or
six months thereafter (or, nine or twelve months thereafter upon the request of
the Borrower and the consent of the Administrative Agent and each Bank that is
making or has made such Loan, which shall not be unreasonably withheld, if loans
of such duration are generally available in the London interbank Eurodollar
market), as selected or deemed selected by the Borrower in its Notice of
Borrowing or Notice of Conversion/Continuation; provided that:
(i) if any Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Business
Day;
(ii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month which
is one, two, three, six, nine or twelve months, as the case may be,
after the calendar month in which such Interest Period began; and
(iii) no Interest Period for any Loan shall extend beyond the
Maturity Date.
"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).
"Issuing Bank" means Bank of America or any Affiliate thereof, in its
capacity as issuer of one or more Letters of Credit hereunder.
"Joinder to Pledge and Security Agreement" means a supplement to the
Pledge and Security Agreement in the form of Annex B thereto, whereby a Nexstar
Entity becomes a party to, and assumes all obligations of, a pledgor under the
Pledge and Security Agreement.
25
"Joinder to Security Agreement" means a supplement to the Security
Agreement in the form of Annex C thereto, whereby a Nexstar Entity becomes a
party to, and assumes all obligations of, a grantor under the Security
Agreement.
"Joint Lead Arrangers" means Bank of America Securities LLC and Bear,
Xxxxxxx & Co. Inc., in their capacity as Joint Lead Arrangers and Joint Book
Managers.
"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 (i) sell at least a majority of the time for commercial spot
announcements, and/or resell to advertisers such time on, (ii) provide the sales
staff for the sale of the advertising time or the collection of accounts
receivable with respect to commercial advertisements broadcast on, (iii) set the
rates for advertising on and/or (iv) 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.
"Lending Office" means, with respect to any Bank, the office or offices
of such Bank specified as its "Lending Office", "Domestic Lending Office" or
"Eurodollar Lending Office", as the case may be, on Schedule 1.01(a) hereto, or
such other office or offices of the Bank as it may from time to time notify the
Borrower and the Administrative Agent.
"Letter of Credit" means any letter of credit issued (or deemed issued)
by the Issuing Bank pursuant to Article III.
"Letter of Credit Amendment Application" means an application form for
amendment of outstanding standby or commercial documentary letters of credit as
shall at any time be in use by the Issuing Bank, as the Issuing Bank shall
request.
"Letter of Credit Application" means an application form for issuances
of standby or commercial documentary letters of credit as shall at any time be
in use at the Issuing Bank, as the Issuing Bank shall request.
"Letter of Credit Borrowing" means an extension of credit resulting from
a drawing under any Letter of Credit which shall not have been reimbursed on the
Disbursement Date of such draw.
"Letter of Credit Commitment" means the agreement of the Issuing Bank to
issue Letters of Credit subject and pursuant to the terms and conditions of this
Agreement; provided that the sum of all the Letter of Credit Obligations on any
date outstanding may not exceed the lesser of (i) the Aggregate Revolving
Commitment on such date and (ii) $30,000,000.
"Letter of Credit Obligations" means, at any time, the sum of (i) the
aggregate undrawn amount of all Letters of Credit then outstanding, plus (ii)
the aggregate amount of all unpaid Reimbursement Obligations.
26
"Letter of Credit Related Documents" means all Letters of Credit, Letter
of Credit Applications, Letter of Credit Amendment Applications and any other
document relating to any Letter of Credit, including the Issuing Bank's standard
form documents for letter of credit issuances, as any of the same may be
amended, modified, restated, supplemented, renewed, extended, increased,
rearranged and/or substituted from time to time.
"Leverage Ratio Determination Date" means the last day of the most
recent Fiscal Quarter for which financial statements have been or were required
to have been delivered pursuant to Section 7.01(a) or (b).
"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), (i) any mortgage, lien, security interest, pledge,
attachment, levy or other charge or encumbrance of any kind thereupon or in
respect thereof or (ii) 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 or other title retention agreement relating to such
asset.
"LIN Stations" has the meaning specified in the definition of "Acquired
Properties".
"Loan" means any extension of credit made by any Bank pursuant to this
Agreement.
"Loan Documents" means this Agreement, all Guaranty Agreements, all
Security Documents, all Letter of Credit Related Documents, any notes executed
and delivered pursuant to Section 2.02(b), the Revolver Reallocation Letter, and
all other waivers, consents, agreements and amendments executed in connection
with the Revolver Reallocation Letter, any Interest Rate Protection Agreement
with any Bank or any Affiliate of any Bank, any other subordination agreement
entered into with any Person with respect to the Obligations, all agreements
between any Person and any Bank respecting fees payable in connection with this
Agreement, any Incremental Loan Amendment and any other agreements executed in
connection with any Incremental Loan Facility or any other Loan Document and all
other written agreements, documents, instruments and certificates now or
hereafter executed and delivered by any Credit Party or any other Person to or
for the benefit of the Administrative Agent, any Bank or any Affiliate of any
Bank pursuant to or in connection with any of the foregoing, and any and all
27
amendments, increases, supplements and other modifications thereof and all
renewals, extensions, restatements, rearrangements and/or substitutions from
time to time of all or any part of the foregoing; 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.
"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.
"Major Television Network" means any of ABC, Inc., National Broadcasting
Company, Inc., CBS, Inc., FOX Television Network, or any other television
network which produces and makes available more than 15 hours of weekly prime
time television programming.
"Majority Banks" means, at any time, (i) Banks whose respective Facility
Percentages aggregate more than 50% and (ii) Mission Banks (whether or not also
Banks) whose respective Mission Facility Percentages aggregate more than 50%.
"Majority Revolver Banks" means, at any time, Revolving Banks having
more than 50% of the Aggregate Combined Revolving Commitment (as in effect at
such time) or, if the Aggregate Combined Revolving Commitment has been
terminated in full, the aggregate principal amount of outstanding Revolving
Loans and Letter of Credit Obligations.
"Management Agreement" has the meaning specified in Section 8.06(c).
"Management Loan" shall mean loans in the aggregate principal amount of
$3,000,000 made by Bank of America in its individual capacity to Sook, the
proceeds of which loans were used by Sook in part to invest in the Ultimate
Parent or to pay interest on any such loan.
"Management Loan Guaranty" means Guaranty Obligations of the Nexstar
Entities with respect to the Management Loan, not to exceed $3,000,000 in
aggregate principal amount.
"Margin Stock" means "margin stock" as such term is defined in
Regulation T, U or X of the Federal Reserve Board.
"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 (i) the Nexstar Entities taken as a whole, (ii) the ability of any
Credit Party to perform its obligations under the Loan Documents to which it is
a party or (iii) the validity or enforceability of this Agreement or any other
Loan Document or the rights and remedies of the Administrative Agent or the
Banks under this Agreement or any of the other Loan Documents.
28
"Maturity Date" for any Loan means the earlier of (i) the applicable
Stated Maturity Date and (ii) the date on which such Loan becomes due and
payable in full pursuant to acceleration or otherwise.
"Maximum Incremental Amount" means $100,000,000 less the sum of all
Mission Incremental Facilities (as in effect at such time) or, with respect to
any Mission Incremental Facility with respect to which such incremental
commitments have been terminated in full, the outstanding incremental loans to
the Mission Borrower under such Mission Incremental Facility.
"Measurement Period" means, with respect to any date, the most recently
ended four consecutive Fiscal Quarter period for which financial statements have
been or were required to have been delivered to the Administrative Agent
pursuant to Section 7.01(a) or (b) prior to such date.
"Mergers" means, collectively, (a) the merger (prior to the Initial
Public Offering) of Nexstar Equity, the Ultimate Parent and the other Parent
Guarantors (other than Nexstar Finance Holdings and Nexstar Finance Holdings,
Inc.) to form a single Delaware corporation to be named Nexstar Broadcasting
Group, Inc. (the "Parent Mergers"), (b) the merger of Nexstar Finance Holdings
with and into Nexstar Finance Holdings, Inc., a Delaware corporation, with
Nexstar Finance Holdings, Inc. being the surviving Person (the "Holdco Merger")
and (c) the merger of the Borrower with and into Nexstar Finance, Inc., a
Delaware corporation, with Nexstar Finance, Inc. being the surviving Person (the
"Borrower Merger").
"Mission Banks" means the "Banks" as that term is defined in the Mission
Credit Agreement.
"Mission Borrower" means the "Borrower" as that term is defined in the
Mission Credit Agreement.
"Mission Credit Agreement" means that Amended and Restated Credit
Agreement dated as of the date of this Agreement among Mission Borrower, as
borrower, the financial institutions from time to time parties thereto, Bank of
America, N.A., as administrative agent, Bear Xxxxxxx Corporate Lending Inc., as
syndication agent and Royal Bank of Canada, General Electric Capital Corporation
and Xxxxxxx Xxxxx Capital, a division of Xxxxxxx Xxxxx Business Financial
Services, Inc., as the co-documentation agents, as the same may be further
amended, modified, restated, supplemented, renewed, extended, increased,
rearranged and/or substituted from time to time.
"Mission Entity" means the Mission Borrower or any Person which is a
direct or indirect Subsidiary of the Mission Borrower.
"Mission Facility Percentage" means the "Facility Percentage" as that
term is defined in the Mission Credit Agreement.
"Mission Guaranty of Nexstar Obligations" means the Guaranty Agreement
dated as of January 12, 2001, executed by the Mission Entities in favor of the
Banks, whereby the Mission Entities have guaranteed the Obligations.
29
"Mission Incremental Facility" means the "Incremental Facility" as that
term is defined in the Mission Credit Agreement.
"Mission Loan Documents" means the "Loan Documents" as that term is
defined in the Mission Credit Agreement.
"Mission Loan" means any extension of credit made by any Bank under or
pursuant to the Mission Credit Agreement.
"Xxxxx'x" means Xxxxx'x Investors Service, Inc., and its successors.
"Xxxxxx Stations" has the meaning specified in the definition of
"Acquired Properties".
"Mortgage Policies" mean the Mortgage Policies under, and as defined in,
the Existing Nexstar Credit Agreement.
"Mortgaged Properties" mean all Real Property owned or leased by any
Nexstar Entity listed on Schedule 6.09 and designated as "Mortgaged Properties"
therein.
"Mortgages" mean all Mortgages (as defined in the Existing Nexstar
Credit Agreement) granted by certain of the Nexstar Entities pursuant to the
Existing Nexstar Credit Agreement (or any predecessor credit agreement which was
amended and restated by the Existing Nexstar Credit Agreement) and which have
not been released prior to the Effective Date.
"Multiemployer Plan" means a "multiemployer plan" (within the meaning of
Section 4001(a)(3) of ERISA) and to which any Nexstar Entity or any ERISA
Affiliate makes, is making, or is obligated to make contributions or, during the
preceding three calendar years, has made, or been obligated to make,
contributions.
"Net Cash Proceeds" means, in connection with any Disposition (including
any Sale and Leaseback Transaction), the cash proceeds (including any cash
payments received by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when received in cash) of such
Disposition net of (i) reasonable transaction costs (including any underwriting,
brokerage or other selling commissions and reasonable legal, advisory and other
fees and expenses, including title and recording expenses, associated therewith
actually incurred and satisfactorily documented), (ii) required payments on
Indebtedness permitted under Section 8.05 and which are not Restricted Payments
(other than payments due with respect to the Obligations), (iii) taxes estimated
to be paid as a result of such Disposition (including Restricted Payments
permitted under Section 8.10(d)) and (iv) any portion of such cash proceeds
which the Borrower determines in good faith should be reserved for post-closing
adjustments or liabilities (as set forth in a certificate of the Borrower
executed on its behalf by a Responsible Officer of the Borrower and delivered to
the Administrative Agent), it being understood and agreed that on the day all
such post-closing adjustments and liabilities have been determined, (x) the
amount (if any) by which the reserved amount of the cash proceeds of such
Disposition exceeds the actual post-closing adjustments or liabilities payable
by any Nexstar Entity shall constitute Net Cash Proceeds on such date and (y)
the amount (if any) by which the actual post-closing adjustments or other
liabilities payable by any Nexstar Entity exceeds the reserved amount of the
cash proceeds of such Disposition on such date shall be credited against any
subsequent Net Cash
30
Proceeds that any Nexstar Entity is required to apply to prepay the Loans
pursuant to Section 2.07(b).
"Net Debt Proceeds" means, with respect to the incurrence or issuance of
any Indebtedness by any Nexstar Entity, (i) the gross cash proceeds received in
connection with such incurrence or issuance, as and when received, minus (ii)
all reasonable out-of-pocket transaction costs (including legal, investment
banking or other fees and disbursements) associated therewith actually incurred
(whether by such Nexstar Entity or an Affiliate thereof), satisfactorily
documented and paid (whether on behalf of such Nexstar Entity or an Affiliate
thereof) to any Person not an Affiliate of a Nexstar Entity.
"Net Issuance Proceeds" means, with respect to the sale or issuance of
Capital Stock, or any capital contribution to, any Nexstar Entity from a source
other than a Nexstar Entity, (i) the gross cash proceeds received in connection
with such sale or issuance or such capital contribution, as and when received
minus (ii) all reasonable out-of-pocket transaction costs (including legal,
investment banking or other fees and disbursements) associated therewith
actually incurred (whether by such Nexstar Entity or an Affiliate thereof),
satisfactorily documented and paid (whether on behalf of such Nexstar Entity or
an Affiliate thereof) to any Person not an Affiliate of a Nexstar Entity.
"Network Affiliation Agreements" means each agreement set forth on
Schedule 6.21 and each other agreement entered into by a Television Company with
any Major Television Network pursuant to which a Television Company and such
Major Television Network agree to be affiliated and such Major Television
Network agrees that such Television Company shall serve as that Major Television
Network's primary outlet within any defined market for television programming
provided by such Major Television Network for broadcast by its station
affiliates.
"Nexstar Entity" means the Ultimate Parent and any Person which is a
direct or indirect Subsidiary of the Ultimate Parent.
"Nexstar Equity" means Nexstar Broadcasting Group, Inc., a Delaware
corporation formerly known as Nexstar Equity Corp., 100% of the issued and
outstanding Voting Stock of which is owned by XXXX X.X. II and the sole asset of
which is a membership interest in the Ultimate Parent.
"Nexstar Equity Investor Rights Agreement" means the Investor Rights
Agreement dated as of May 17, 2001, between the Ultimate Parent and Nexstar
Equity, as in effect on such date.
"Nexstar Equity Reimbursement Agreement" means the Reimbursement
Agreement dated as of May 17, 2001, between the Ultimate Parent and Nexstar
Equity, as in effect on such date.
"Nexstar Equity Unit Agreement" means the Unit Agreement dated as of May
17, 2001, among Nexstar Finance Holdings, Nexstar Finance Holdings, Inc.,
Nexstar Equity, the Ultimate Parent and the initial purchasers of the unit
parties thereof, as in effect on such date.
31
"Nexstar Finance Holdings" means (i) prior to the effective time of the
Mergers, Nexstar Finance Holdings, L.L.C., a Delaware limited liability company
and a Nexstar Entity; and (ii) after the effective time of the Mergers, Nexstar
Finance Holdings, Inc., a Delaware corporation.
"Nexstar Finance Holdings II" means Nexstar Finance Holdings II, L.L.C.,
a Delaware limited liability company and a Nexstar Entity.
"Nexstar Guaranty of Mission Obligations" means that certain Guaranty
Agreement, dated as of January 12, 2001, executed and delivered by the Nexstar
Entities in favor of the Mission Banks, whereby the Nexstar Entities guaranty
the obligations of the Mission Entities under the Mission Loan Documents.
"Nexstar Stockholders Agreement" means the Stockholders Agreement dated
on or about the date of the Initial Public Offering, among the Ultimate Parent,
XXXX X.X. II, XXXX X.X. III, Banc of America Capital Investors and Sook, without
giving effect to any amendments or waivers thereto.
"Notice of Borrowing" means a notice given by the Borrower to the
Administrative Agent pursuant to Section 2.03(a), in substantially the form of
Exhibit H.
"Notice of Conversion/Continuation" means a notice given by the Borrower
to the Administrative Agent pursuant to Section 2.04(b), in substantially the
form of Exhibit I.
"Obligations" means the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Credit Party, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) the Loans and all other
obligations and liabilities of any Credit Party to the Administrative Agent or
to any Bank (or, in the case of any Interest Rate Protection Agreement, any
Affiliate of any Bank), whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement, any other Loan Document, or any
other document made, delivered or given in connection with any of the foregoing,
whether on account of principal, interest, Guaranty Obligations, reimbursement
obligations, fees, indemnities, costs, expenses (including, without limitation,
all fees, charges and disbursements of counsel to the Administrative Agent, the
Syndication Agent or to any Bank that are required to be paid by any Credit
Party pursuant to any Loan Document) or otherwise.
"OECD" means the Organization for Economic Cooperation and Development.
"Other Taxes" has the meaning specified in Section 4.01(b).
"Parent Guarantor" means the Ultimate Parent and all Subsidiaries of the
Ultimate Parent other than the Borrower and the Subsidiary Guarantors.
"Parent Guaranty Agreements" means (A) prior to the effective time of
the Mergers, (i) the Guaranty Agreement of the Ultimate Parent and Nexstar
Finance Holdings dated as of January 12, 2001, (ii) the Guaranty Agreement of
the direct Subsidiaries of the Ultimate Parent,
32
dated as of January 12, 2001 and (iii) the Guaranty Agreement of Nexstar Finance
Holdings, Inc. dated as of January 12, 2001, as each of the same may be amended,
supplemented and/or otherwise modified from time to time and (B) after the
effective time of the Mergers, (i) the Guaranty Agreement of the Ultimate Parent
and Nexstar Finance Holdings dated as of January 12, 2001, and (ii) the Guaranty
Agreement of Nexstar Finance Holdings, Inc. dated as of January 12, 2001, as
each of the same may be amended, supplemented and/or otherwise modified from
time to time.
"Parent Mergers" has the meaning specified in the definition of
"Mergers".
"Parent Subordinated Convertible Promissory Note" means (i) prior to the
effective time of the Mergers, a promissory note of Nexstar Finance Holdings or
Nexstar Finance Holdings II, payable to a member of, or an Affiliate of a member
of, the Ultimate Parent, substantially in the form of Exhibit J-1 and (ii) after
the effective time of the Mergers, a promissory note of the Ultimate Parent or
Nexstar Finance Holdings payable to an ABRY Fund and/or Sook (or other Persons
exercising preemptive rights in connection with the issuance of Capital Stock or
one or more of them), substantially in the form of Exhibit J-2.
"Participant" has the meaning specified in Section 11.07(c).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any of its principal functions under ERISA.
"Pending Acquisition" means, on any date of determination, (i) any
Acquisition (other than an Acquisition where a Mission Entity is the seller)
that a Nexstar Entity or Mission Entity is then contractually committed to make
or (ii) with respect to any Person or assets Acquired that are subject to a
Local Marketing Agreement, Joint Sales Agreement and/or Shared Services
Agreement (or similar type of agreement), any Acquisition (other than an
Acquisition where a Mission Entity is the owner) pursuant to which a Nexstar
Entity or Mission Entity has the contractual right to purchase assets, other
equity ownership or Capital Stock of the Person or assets Acquired upon the
exercise of any option or the happening of any contingency.
"Pension Plan" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which any Nexstar Entity or any ERISA
Affiliate sponsors or maintains, or to which it makes, is making, or is
obligated to make contributions, or in the case of a multiple employer plan (as
described in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five (5) plan years, but excluding any Multiemployer
Plan.
"Permitted Affiliate Transaction" means (i) Restricted Payments
permitted by Section 8.10 (including by waiver or consent); (ii) payments
described in clause (iii) of the definition of the term "Restricted Payment";
(iii) payments to ABRY Partners, LLC in respect of corporate overhead expenses
of ABRY Partners, LLC in an aggregate amount not to exceed $50,000 during Fiscal
Year 2003 (and up to 105% of the maximum permitted amount for the preceding
Fiscal Year, during any Fiscal Year thereafter); (iv) payments of out-of-pocket
expenses and transaction fees payable pursuant to the Management Agreement and
incurred in connection with any Acquisition; (v) payments of management fees
made pursuant to the Management Agreement, so long as all management fee
payments made pursuant to the
33
Management Agreement shall be in an amount not to exceed $300,000 in the
aggregate during Fiscal Year 2003 (and up to 105% of the maximum permitted
amount for the preceding Fiscal Year, during any Fiscal Year thereafter), and
such payments of management fees may only be paid to the extent that no Default
or Event of Default has occurred or would occur after giving effect thereto;
(vi) Indebtedness permitted under Section 8.05(i) and (j); (vii) the Management
Loan Guaranty; (viii) prior to the effective time of the Mergers only,
transactions contemplated by the Nexstar Equity Unit Agreement, the Nexstar
Equity Investor Rights Agreement, and the Nexstar Equity Reimbursement
Agreement, provided in the case of the Nexstar Equity Reimbursement Agreement
that the aggregate amount of expenses reimbursed pursuant to such agreement in
any fiscal year may not exceed $40,000; (ix) after the effective time of the
Mergers, the transactions contemplated by the Nexstar Stockholders Agreement;
and (x) the Mergers, as permitted under Section 8.04(g).
"Permitted Borrower Subordinated Indebtedness" means (a) subordinated
Indebtedness of the Borrower evidenced by the Borrower's 12% Senior Subordinated
Notes due 2008, issued March 16, 2001, in an aggregate principal amount of
$160,000,000, pursuant to and upon the terms and conditions set forth in the
Indenture of even date therewith and the Guaranty Obligations of the Borrower's
Subsidiaries with respect thereto pursuant to the guaranty agreement
substantially in the form attached to such Indenture, and (b) subordinated
Indebtedness of the Borrower having the following terms and conditions: (i) no
portion of the principal of such Indebtedness shall be required to be paid,
whether by stated maturity, mandatory or scheduled prepayment or redemption or
otherwise, prior to the date that is 180 days after the Stated Maturity Date of
the latest to mature of the Loans, other than in the event of (x) a default
under such Indebtedness, (y) a change of control of the Borrower which
constitutes a Change of Control with respect to this Agreement or (z) an asset
sale, subject in each case to the prior payment in full of the Obligations and
the subordination provisions described in clause (v) below; (ii) the documents,
instruments and other agreements pursuant to which such Indebtedness shall be
issued or outstanding shall contain no (x) financial maintenance covenants or
cross-default provisions other than cross-payment default and (y) no provisions
limiting amendments to, or consents, waivers or other modifications with respect
to, this Agreement or any other Loan Document; (iii) any other covenants,
defaults and events of default contained in the documents, instruments and other
agreements pursuant to which such Indebtedness shall be issued or outstanding
shall not be more restrictive than those contained in this Agreement or the
other Loan Documents and shall not conflict with or violate the covenants and
Defaults and Events of Default contained in this Agreement or the other Loan
Documents; (iv) no Liens or security interests on or in the assets or properties
of any Nexstar Entity are granted (or may arise at any time) to secure the
repayment such Indebtedness; and (v) such Indebtedness and any Guaranty
Obligations of any Nexstar Entities are subordinated to the Obligations on terms
customary for high yield debt securities with substantially the same terms and
conditions as the Permitted Borrower Subordinated Indebtedness described in
subsection (a) of this definition.
"Permitted Borrower Unsecured Indebtedness" means unsecured Indebtedness
of the Borrower and/or its Subsidiaries to a Person other than a Nexstar Entity
or an Affiliate of a Nexstar Entity, on terms and conditions reasonably
acceptable to the Administrative Agent and the Majority Banks, such terms and
conditions to include, but not be limited to: (i) such Indebtedness shall have a
stated maturity date after the date that is 180 days after the Stated Maturity
Date of the latest to mature of the Loans, and shall not have any scheduled
payments,
34
prepayments or redemptions of principal at any time prior to the date that is
180 days after the Stated Maturity Date of the latest to mature of the Loans;
(ii) the documents, instruments and other agreements pursuant to which such
Indebtedness shall be issued or outstanding shall contain no financial
maintenance covenants or cross-default provisions and no provisions limiting
amendments to, or consents, waivers or other modifications with respect to, this
Agreement or any other Loan Document; and (iii) no Liens or security interests
on or in the assets or properties of any Nexstar Entity are granted (or may
arise at any time) to secure the repayment of such Indebtedness and no Guaranty
Obligation of any other Nexstar Entity is granted for the payment or collection
of such Indebtedness.
"Permitted Holdings Unsecured Indebtedness" means (a) unsecured
Indebtedness of Nexstar Finance Holdings evidenced by Nexstar Finance Holdings'
16% Senior Discount Notes issued May 17, 2001 in the aggregate principal amount
of $36,988,000, pursuant to and upon the terms and conditions set forth in the
Indenture of even date therewith, and (b) unsecured Indebtedness of Nexstar
Finance Holdings having the following terms and conditions: (i) no portion of
the principal of such Indebtedness shall be required to be paid, whether by
stated maturity, mandatory or scheduled prepayment or redemption or otherwise,
prior to the date that is 180 days after the Stated Maturity Date of the latest
to mature of the Loans, other than in the event of (x) a default under such
Indebtedness, (y) a change of control of Holdings which constitutes a Change of
Control with respect to this Agreement or (z) an asset sale, subject in each
case to the prior payment in full of the Obligations; (ii) the documents,
instruments and other agreements pursuant to which such Indebtedness shall be
issued or outstanding shall contain (x) no financial maintenance covenants, (y)
no cross-default provisions other than cross-payment default and (z) no
provisions limiting amendments to, or consents, waivers or other modifications
with respect to, this Agreement or any other Loan Document; (iii) any other
covenants and defaults or events of default contained in the documents,
instruments and other agreements pursuant to which such Indebtedness is issued
or outstanding shall not be more restrictive than those contained in this
Agreement or other Loan Documents and shall not conflict with or violate the
covenants and Defaults or Events of Default contained in this Agreement or the
other Loan Documents; (iv) no Liens or security interests on or in the assets or
properties of any Nexstar Entity shall be granted (or may arise at any time) to
secure the repayment of such Indebtedness; (v) such Indebtedness has no
scheduled payment of interest due or payable with respect thereto until after
February 13, 2007; and (vi) any Guaranty Obligations of any Nexstar Entities
with respect to such Indebtedness are subordinated to the Obligations on terms
customary for high yield debt securities with substantially the same terms and
conditions as the Permitted Borrower Subordinated Indebtedness described in
subsection (a) of the definition thereof.
"Permitted Liens" has the meaning specified in Section 8.02.
"Permitted Parent Preferred Equity" means (A) Existing Parent Preferred
Equity and (B) non-voting Capital Stock issued by the Ultimate Parent which (i)
have no scheduled payments of cash dividends due or payable thereon until
February 13, 2007, and no scheduled redemption or repurchase obligations with
respect thereto until after the date that is 180 days after the Stated Maturity
Date of the latest to mature of the Loans, (ii) is not convertible, exchangeable
or exercisable for any Indebtedness or any other Capital Stock other than (a)
Capital Stock of the Ultimate Parent or (b) after February 13, 2007, unsecured
Indebtedness of the Ultimate Parent
35
having substantially the same terms as the Permitted Holdings Unsecured
Indebtedness, (iii) is not redeemable at the option of the holder thereof until
after the date that is 180 days after the Stated Maturity Date of the latest to
mature of the Loans, other than with respect to customary redemption rights with
respect to (x) a change of control of the Ultimate Parent which constitutes a
Change of Control with respect to this Agreement or (y) an asset sale, subject
in each case to the prior payment in full of the Obligations and customary
subordination provisions for securities with substantially the same terms and
conditions as the Permitted Parent Preferred Equity and (iv) does not have any
blockage rights, covenants or default or cross-default provisions that could
accelerate the payment of dividends or liquidation preference rights.
"Permitted Seller Subordinated Indebtedness" means subordinated
Indebtedness of the Borrower and/or its Subsidiaries permitted by Section
8.05(e) and incurred in connection with a transaction permitted under the terms
of Section 8.04(b) (including by waiver or consent) and owed to a seller thereof
or other party thereto as partial or full consideration therefor, on terms and
conditions reasonably acceptable to the Administrative Agent and the Majority
Banks.
"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.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which any Nexstar Entity or any ERISA Affiliate sponsors or maintains or
to which any Nexstar Entity or any ERISA Affiliate makes, is making, or is
obligated to make contributions and includes any Pension Plan or Multiemployer
Plan.
"Pledge and Security Agreement" means the Pledge and Security Agreement
dated as of January 12, 2001, pursuant to which each Credit Party has pledged or
collaterally assigned 100% of the Capital Stock of each of its Subsidiaries, and
any intercompany notes held by it.
"Pledged Collateral" has the meaning specified in the Pledge and
Security Agreement.
"Pledged Entity" means each "Pledged Partnership" and each "Pledged
Limited Liability Company" as these terms are defined in the Pledge and Security
Agreement.
"Preferred Redemption" means the redemption by the Ultimate Parent of
the Existing Parent Preferred Equity, which redemption will be effected on the
date of the Mergers and the Initial Public Offering by the Ultimate Parent
distributing to the holders of the Existing Parent Preferred Equity (a) all or a
portion of the promissory notes of Nexstar Finance Holdings II held by the
Ultimate Parent (the "Holdings II Notes"), and (b) cash in an amount equal to
the Cash Redemption Payment.
"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.
"Principal" means ABRY Partners, LLC or any Person that (i) directly or
indirectly, is in control of, is controlled by, or is under common control with,
ABRY Partners, LLC, and (ii) is
36
organized primarily for the purpose of making equity or debt investments in one
or more companies or a Person controlled by ABRY Partners, LLC. 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.
"Pro Forma Basis" means a method of calculation using financial
information of a specified date (and/or the applicable Measurement Period
relating to such specified date, as applicable), but including in such
calculation the financial effect of the relevant or proposed transactions (in
connection with which such calculation is required to be made), as if such
transactions had been consummated on the first day of the applicable Measurement
Period or the date being tested (as applicable). Any calculation or preparation
pursuant to the foregoing shall be made in good faith by the Borrower and shall
be set forth in a certificate, as provided herein, furnished to the Banks
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, if applicable), which calculation or preparation and methodology
shall be reasonably satisfactory to the Administrative Agent.
"Pro Forma Compliance Certificate" means, for any Person, a Compliance
Certificate with respect to the financial covenants in Section 8.09, prepared on
a Pro Forma Basis with respect to the relevant proposed transaction for which
such Pro Forma Compliance Certificate is required to be delivered and any other
transactions relating thereto certifying and demonstrating that no Default or
Event of Default exists both before and after giving effect to such proposed
transaction, with such changes as acceptable to the Administrative Agent.
"Ratification and Assumption Agreements" means, collectively, the
Ratification and Assumption Agreement to be signed by the Ultimate Parent upon
consummation of the Parent Mergers, substantially in the form of Exhibit L-1,
the Ratification and Assumption Agreement to be signed by Nexstar Finance
Holdings upon consummation of the Holdco Merger, substantially in the form of
Exhibit L-2 and the Ratification and Assumption Agreement to be signed by
Nexstar Finance, Inc. upon consummation of the Borrower Merger, substantially in
the form of Exhibit L-3.
"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.
"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.
"Register" has the meaning specified in Section 11.07(b).
"Reimbursement Obligations" means the obligation of the Borrower to
reimburse the Issuing Bank, pursuant to Section 3.03, for amounts drawn under
Letters of Credit.
"Reinvestment Assets" means any assets owned by and to be employed in
the business of the Borrower and its Subsidiaries as described in Section 8.01.
"Reinvestment Election" has the meaning specified in Section 2.07(b).
37
"Reinvestment Notice" means a written notice by the Borrower signed on
its behalf by a Responsible Officer of the Borrower stating that the Borrower in
good faith, intends and expects to use, or to cause a Subsidiary of the Borrower
to use, all or a specified portion of the Net Cash Proceeds of a Disposition to
purchase, construct or otherwise Acquire Reinvestment Assets.
"Reinvestment Period" means the period commencing on the date of any
Disposition and terminating on the date which is 365 days after such
Disposition.
"Reinvestment Prepayment Amount" means, with respect to any Reinvestment
Election, the amount, if any, on the Reinvestment Prepayment Date relating
thereto by which (i) the Anticipated Reinvestment Amount in respect of such
Reinvestment Election exceeds (ii) the aggregate amount thereof expended by the
Borrower and/or any of its Subsidiaries to Acquire Reinvestment Assets
(including reasonable out-of-pocket disbursements in connection with any such
Acquisition).
"Reinvestment Prepayment Date" means, with respect to any Reinvestment
Election, the earliest of (i) the date, if any, upon which the Administrative
Agent, on behalf of the Majority Banks, shall have delivered a written
termination notice to the Borrower, provided that such notice may only be given
while a Default or an Event of Default exists, (ii) the last day of the relevant
Reinvestment Period and (iii) the date on which the Borrower or any of its
Subsidiaries shall have determined not to, or shall have otherwise ceased to,
proceed with the purchase, construction or other Acquisition of Reinvestment
Assets with the related Anticipated Reinvestment Amount.
"Replaced Bank" has the meaning specified in Section 4.08(b).
"Replacement Bank" has the meaning specified in Section 4.08(b).
"Reportable Event" means, any of the events set forth in Section 4043(c)
of ERISA or the regulations thereunder, other than any such event for which the
30-day notice requirement under ERISA has been waived in regulations issued by
the PBGC.
"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, for each Credit Party, 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 Payment" means, as to any Person, (i) the authorization,
declaration or payment of any Dividend by such Person or any of its
Subsidiaries, (ii) the redemption, retirement, purchase or other acquisition,
directly or indirectly, for consideration by such Person of any Capital Stock of
such Person, or (iii) the making of any payment by any Nexstar Entity in respect
of any principal of or interest on any Indebtedness other than Indebtedness
incurred in accordance with Sections 8.05(a) through (d) and Sections 8.05(f)
through (h).
38
"Revolver Reallocation Letter" means that certain letter among the
Revolving Banks permitting under certain circumstances the reallocation of the
Revolving Commitment as described on Schedule 1.01(C).
"Revolving Bank" means each Bank that has a Revolving Commitment or that
is a holder of a Revolving Loan made under the Revolving Commitments.
"Revolving Borrowing" means a Borrowing hereunder consisting of
Revolving Loans made to the Borrower on the same Borrowing Date and, in the case
of Eurodollar Loans, having the same Interest Periods.
"Revolving Commitment" means, as to any Bank, the obligation of such
Bank, if any, to make Revolving Loans (other than Incremental Revolving Loans)
to, and issue or participate in Letter of Credit Obligations on behalf of, the
Borrower hereunder in an aggregate principal amount not to exceed at any one
time the amount set forth under the heading "Revolving Commitment" opposite such
Bank's name on Schedule 2.01 or, in the case of any Bank that is an Eligible
Assignee, the amount of the Revolving Commitment of the assigning Bank which is
assigned to such Eligible Assignee in accordance with Section 11.07 and set
forth in the applicable Assignment and Assumption (in each case as the same may
be adjusted from time to time as provided herein), as such Revolving Commitment
may be adjusted in accordance with the terms of the Revolver Reallocation
Letter.
"Revolving Commitment Fee" has the meaning specified in Section 2.09(a).
"Revolving Commitment Percentage" means, as to any Bank at any time, (i)
the percentage which the amount of such Bank's Revolving Commitment then
constitutes of the sum of the amount of all Revolving Commitments, or (ii) at
any time after the Revolving Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Bank's Revolving Loans
made under its Revolving Commitment then outstanding constitutes of the
aggregate principal amount of all Revolving Loans made under the Revolving
Commitments then outstanding.
"Revolving Commitment Period" means the period from and including the
Effective Date (with respect to the Revolving Commitments) or the effective date
of the relevant Incremental Loan Amendment (with respect to each Incremental
Revolving Commitment), as applicable, to but not including the Stated Revolving
Credit Maturity Date.
"Revolving Extensions of Credit" means, as to any Bank at any time, an
amount equal to the sum of (i) the aggregate principal amount of all Revolving
Loans held by such Bank then outstanding plus (ii) the amount of such Bank's
participations in Letter of Credit Obligations.
"Revolving Facility" means the revolving loan facility provided for in
Section 2.01(b).
"Revolving Facility Percentage" means, as to any Bank at any time, (i)
the percentage which (x) the sum of the amount of such Bank's Revolving
Commitment plus the amount of all such Bank's Incremental Revolving Commitments,
if any, then constitutes of (y) the sum of the amount of the Aggregate Revolving
Commitment plus the amount of the Aggregate Incremental Revolving Commitment, or
(ii) at any time after the Revolving Commitments and the
39
Incremental Revolving Commitments have expired or terminated, the percentage
which the aggregate principal amount of such Bank's Revolving Loans then
outstanding constitutes of the aggregate principal amount of all Revolving Loans
then outstanding.
"Revolving Loan" has the meaning specified in Section 2.01(b), as
modified by Section 2.01(c).
"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors.
"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.
"Security Agreement" means the Security Agreement dated as of January
12, 2001, pursuant to which each Nexstar Entity has granted security interests
in its assets.
"Security Agreement Collateral" has the meaning specified in the
Security Agreement.
"Security Documents" means collectively the Pledge and Security
Agreement, the Security Agreement, each Mortgage and each Joinder to Pledge and
Security Agreement and Joinder to Security Agreement executed and delivered by
any Credit Party pursuant to any Loan Document or otherwise, as any of the same
may be amended, modified, restated, supplemented, renewed, extended, increased,
rearranged and/or substituted from time to time.
"Security Instrument" means any security agreement, chattel mortgage,
assignment, pledge agreement, financing or similar statement or notice,
continuation statement, other agreement or instrument, or amendment or
supplement to any thereof, providing for, evidencing or perfecting any security
interest.
"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.
"Significant Station" on any date means any Station, if the Consolidated
Operating Cash Flow for such Station exceeds 10% of the sum of the Consolidated
Operating Cash Flow for all Stations and the corporate overhead expenses for all
Stations, in each case determined for the Measurement Period for such date;
provided that, for purposes of this definition and Section 9.01(n), two or more
Stations that substantially simulcast the same programming will be deemed to be
a single Station so long as they do so.
40
"Solvency Certificate" means a certificate of the Nexstar Entities
executed on their behalf by the Chief Financial Officer of each of the Nexstar
Entities, substantially in the form of Exhibit M.
"Solvent" means, when used with respect to any Person, means that, as of
any date of determination, (a) the amount of the "fair value" or "present fair
saleable value" of the assets of such Person (on a going-concern basis) will, as
of such date, exceed the amount of all "liabilities of such Person, contingent
or otherwise," as of such date, as such quoted terms are determined in
accordance with applicable federal and state laws governing determinations of
the insolvency of debtors, (b) such fair value or present fair saleable value of
the assets of such Person (on a going-concern basis) will, as of such date, be
greater than the amount that will be required to pay the liability of such
Person on its debts as such debts become absolute and matured, (c) such Person
will not have, as of such date, an unreasonably small amount of capital with
which to conduct its business, and (d) such Person will be able to pay its debts
as they mature. For purposes of this definition, (i) "debt" means liability on a
"claim," (ii) "claim" means any (x) right to payment, whether or not such a
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured
or (y) right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured or unmatured,
disputed, undisputed, secured or unsecured and (iii) unliquidated, contingent,
disputed and unmatured claims shall be valued at the amount that can be
reasonably expected to be actual and matured.
"Sook" means Xxxxx Xxxx, an individual residing on the Effective Date in
the State of Texas.
"Stated Maturity Date" means (i) with respect to Revolving Loans, the
Stated Revolving Credit Maturity Date, and (ii) with respect to Term B Loans,
the Stated Term B Maturity Date.
"Stated Revolving Credit Maturity Date" means the date which is nine
months prior to the earlier of (x) the maturity of any Permitted Borrower
Subordinated Indebtedness that is then outstanding and (y) the maturity of any
Permitted Holdings Unsecured Indebtedness that is then outstanding, provided
that, notwithstanding the foregoing, in no event shall such date be later than
December 31, 2009.
"Stated Term B Maturity Date" means the date which is six months prior
to the earlier of (x) the maturity of any Permitted Borrower Subordinated
Indebtedness that is then outstanding and (y) the maturity of any Permitted
Holdings Unsecured Indebtedness that is then outstanding, provided that,
notwithstanding the foregoing, in no event shall such date be later than
December 31, 2010.
"Station" means, at any time (i) the Acquired Properties, (ii) each
television station listed in Schedule 6.16 hereto, (iii) any television station
licensed by the FCC to any Nexstar Entity on, or at any time after, the
Effective Date and (iv) any television station that is the subject of an
Acquisition, Local Marketing Agreement, Joint Sales Agreement or Shared Services
Agreement consented to by the Majority Banks or otherwise permitted under
Section 8.04 (including by waiver or consent). This definition of "Station" may
be used with respect to any single television
41
station meeting any of the preceding requirements or all such television
stations, as the context requires.
"Subsidiary" means, as to any Person, (i) 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 (ii) 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, in calculating financial covenants or financial
performance (including the calculation of Excess Cash Flow) and for financial
reporting purposes, the financial position and results of the Mission Borrower
shall be included as if it were a Wholly-Owned Subsidiary of the Borrower and
any television station owned by a Mission Entity were a "Station" so long as
Joint Sales Agreements, Shared Services Agreements and/or Local Marketing
Agreements between the Mission Entities and one or more Subsidiaries of the
Borrower, covering all of the television broadcast stations of the Mission
Entities, are in full force and effect.
"Subsidiary Guarantor" means each Subsidiary of the Borrower.
"Subsidiary Guaranty Agreement" means the Subsidiary Guaranty Agreement
of the Subsidiary Guarantors dated as of January 12, 2001, as the same may be
amended, supplemented and/or otherwise modified from time to time.
"Supermajority Banks" means, at any time, (i) Banks whose respective
Facility Percentages aggregate more than 66 2/3% and (ii) Revolving Banks having
more than 66 2/3% of the Aggregate Combined Revolving Commitment (as in effect
at such time) or, if the Aggregate Combined Revolving Commitment has been
terminated in full, the aggregate principal amount of outstanding Revolving
Loans and Letter of Credit Obligations.
"Syndication Agent" means Bear Xxxxxxx Corporate Lending Inc., in its
capacity as Syndication Agent for the Banks hereunder, and any successor to such
agent.
"Taxes" has the meaning specified in Section 4.01(a).
"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.
"Television Company" means any Nexstar Entity, to the extent such Person
owns or operates a Station.
"Term B Bank" means each Bank that has a Term B Commitment or that is
the holder of a Term B Loan made under the Term B Commitments.
42
"Term B Commitment" means, as to any Bank, the obligation of such Bank,
if any, to make Term B Loans to the Borrower hereunder in an aggregate principal
amount not to exceed the amount set forth under the heading "Term B Commitment"
opposite such Bank's name on Schedule 2.01.
"Term B Facility Percentage" means, as to any Bank at any time, the
percentage which (i) the sum of all of such Bank's Term B Loans then outstanding
constitutes of (ii) the sum of the Aggregate Outstanding Term B Loan Balance.
"Term B Loan" has the meaning specified in Section 2.01(a)(i).
"Tranche" means the collective reference to Eurodollar Loans made by the
Banks to the Borrower, the then current Interest Periods with respect to which
begin on the same date and end on the same later date, whether or not such Loans
shall originally have been made on the same day.
"Transaction" means collectively, the incurrence of the Loans and other
extensions of credit to be made to the Nexstar Entities on the Effective Date
and the refinancing of the Loans under the Existing Nexstar Credit Agreement.
"Transferee" has the meaning specified in Section 11.08.
"Ultimate Parent" means Nexstar Broadcasting Group, L.L.C., a Delaware
limited liability company; provided that upon consummation of the Parent
Mergers, the "Ultimate Parent" shall mean the survivor of the Parent Mergers.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." each means the United States of America.
"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.
"Wholly-Owned Subsidiary" means, as to any Person, (i) any corporation
100% of whose common 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 (ii) 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.
1.02 Other Definitional Provisions.
(a) Unless otherwise specified herein or therein, all terms
defined in this Agreement shall have such defined meanings when used in
any Exhibit, Schedule or other Loan Document or any certificate or other
document made or delivered pursuant
43
hereto. The meanings of defined terms shall be equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and
Section, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(c) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(d) The terms "including" or "include" are not limiting and
mean "including without limitation" or "include without limitation".
(e) References in this Agreement or any other Loan Document
to knowledge by any Credit Party of events or circumstances shall be
deemed to refer to events or circumstances of which a Responsible
Officer of such Person has actual knowledge or reasonably should have
knowledge.
(f) References in this Agreement or any other Loan Document
to financial statements shall be deemed to include all related schedules
and notes thereto.
(g) Except as otherwise specified herein, all references to
any Governmental Authority or Requirement of Law defined or referred to
herein shall be deemed references to such Governmental Authority or
Requirement of Law or any successor Governmental Authority or
Requirement of Law, and any rules or regulations promulgated thereunder
from time to time, in each case as the same may have been or may be
amended or supplemented from time to time.
(h) References herein to a certification or statement of an
officer of a Person or other individual shall mean a certification or
statement of such Person, which is executed on behalf of such Person by
such individual in his or her capacity as an officer of such Person.
(i) Subject to the definitions of the terms "Interest
Period" and "Interest Payment Date" in Section 1.01, whenever any
performance obligation hereunder shall be stated to be due or required
to be satisfied on a day other than a Business Day, such performance
shall be made or satisfied on the next succeeding Business Day. In the
computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding," and the word "through"
means "to and including." If any provision of this Agreement refers to
any action taken or to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be interpreted to encompass
any and all means, direct or indirect, of taking, or not taking, such
action.
(j) Unless otherwise expressly provided herein, references
to agreements and other contractual instruments shall be deemed to
include all amendments and other
44
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document.
(k) References to any statute or regulation are to be
construed as including all statutory and regulatory provisions
consolidating, amending or replacing such statute or regulation.
1.03 Accounting Principles. Except as provided to the contrary
herein, all accounting terms used herein shall be interpreted in accordance with
GAAP. Unless the context otherwise clearly requires, all financial computations
required under this Agreement shall be made in accordance with GAAP; provided
that if the Borrower notifies the Administrative Agent that the Borrower wishes
to amend any covenant in Article VIII or the definition of any term used therein
to eliminate the effect of any change in GAAP occurring after the Effective Date
or the operation of such covenant (or if the Administrative Agent notifies the
Borrower that the Majority Banks wish to amend Article VIII or any such
definition for such purpose), then compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such notice is withdrawn or such covenant
or definition is amended in a manner satisfactory to the Borrower and the
Majority Banks. Borrower shall notify the Administrative Agent of any change in
GAAP that would have a material effect whether or not the Borrower wishes to
adopt that change.
1.04 Classes and Types of Loans and Borrowings. The term "Borrowing"
denotes the aggregation of Loans of one or more Banks to be made to the Borrower
pursuant to Section 2.03 on the same date, all of which Loans are of the same
Class and Type and, in the case of Eurodollar Loans, have the same initial
Interest Period. Loans made under this Agreement are distinguished by "Class"
and by "Type". The "Class" of a Loan (or of a commitment to make such a Loan or
of a Borrowing comprised of such Loans) refers to the determination of whether
such commitment or Loan is (a) a Revolving Commitment or a Revolving Loan made
under the Revolving Commitments, (b) an Incremental Revolving Commitment
relating to a specified Incremental Facility or an Incremental Revolving Loan
made under such Incremental Facility, (c) a Term B Commitment or a Term B Loan
made under the Term B Commitments or (d) an Incremental Term Commitment relating
to a specified Incremental Facility or an Incremental Term Loan made under such
Incremental Facility, each of which constitutes a "Class". The "Type" of a Loan
refers to the determination whether such Loan is a Eurodollar Loan or a Base
Rate Loan, each of which constitutes a "Type". Identification of a Loan (or of a
Commitment to make such a Loan or of a Borrowing comprised of such Loans) by
both Class and Type, e.g., a "Eurodollar Incremental Term Loan", indicates that
such Loan is both an Incremental Term Loan and a Eurodollar Loan (or that such
Borrowing is comprised of such Loans).
45
ARTICLE II.
THE CREDIT FACILITIES
2.01 Amounts and Terms of Commitments.
(a) The Term B Loans.
(i) Each Term B Bank severally agrees, subject to the terms
and conditions hereinafter set forth, to make a term loan (each, a "Term
B Loan") to the Borrower on the Effective Date (and not thereafter) in
an aggregate principal amount not to exceed the Term B Loan Commitment
of such Term B Bank; provided however that after giving effect to any
Term B Loan made under a Term B Commitment, the aggregate principal
amount of all outstanding Term B Loans made under the Term B Commitments
shall not exceed the Aggregate Term B Commitment. Within such limits,
and subject to the other terms and conditions of this Agreement, the
Borrower may borrow Term B Loans under this Section 2.01(a)(i); provided
that amounts borrowed as Term B Loans which are repaid or prepaid may
not be reborrowed. The Term B Commitments shall automatically and
permanently terminate effective as of February 14, 2003.
(ii) Term B Loans may from time to time be (i) Eurodollar
Loans or (ii) Base Rate Loans or a combination thereof, as determined by
the Borrower pursuant to Section 2.03(b) or Section 2.04.
(b) The Revolving Loans. Each Revolving Bank severally agrees,
subject to the terms and conditions hereinafter set forth, to make revolving
loans (each, a "Revolving Loan") to the Borrower from time to time on any
Business Day, during the Revolving Commitment Period, in an aggregate principal
amount not to exceed at any time outstanding the Revolving Commitment of such
Revolving Bank; provided, however that after giving effect to any Revolving Loan
made under a Revolving Commitment, the aggregate principal amount of all
outstanding Revolving Loans made under the Revolving Commitments plus the
aggregate amount of all outstanding Letter of Credit Obligations shall not
exceed the Aggregate Revolving Commitment. Within such limits, and subject to
the other terms and conditions hereof, the Borrower may borrow Revolving Loans
under this Section 2.01(b), prepay Revolving Loans pursuant to Section 2.06 or
2.07 and reborrow Revolving Loans pursuant to this Section 2.01(b). Revolving
Loans may from time to time be (i) Eurodollar Loans or (ii) Base Rate Loans or a
combination thereof, as determined by the Borrower pursuant to Section 2.03(b)
and Section 2.04.
(c) The Incremental Loans.
(i) So long as no Default or Event of Default has occurred
and is continuing, at any time and from time to time prior to March 31,
2005, the Borrower may request pursuant to the procedure set forth in,
and in accordance with the terms of, Section 2.16, the addition of an
Incremental Facility consisting
46
of either an increase to the existing revolving facility or a new
tranche of revolving loans (each, an "Incremental Revolving Loan") or an
increase to the existing term loan or a new tranche of term loans (each,
an "Incremental Term Loan"); provided however that the Borrower may not
make a request for an Incremental Facility if after giving effect
thereto the sum of all then outstanding Incremental Revolving Loans,
unused Incremental Revolving Commitments, outstanding Incremental Term
Loans and unused Incremental Term Commitments would exceed the Maximum
Incremental Amount. Each Incremental Facility shall:
(A) be in an amount not less than the excess of
$25,000,000 over the amount of any Mission Incremental Facility
made simultaneously therewith; provided that the sum of all then
outstanding Incremental Revolving Loans, unused Incremental
Revolving Commitments, Incremental Revolving Loans (as that term
is defined in the Mission Credit Agreement) of the Mission
Borrower and unused Incremental Revolving Commitments (as that
term is defined in the Mission Credit Agreement) of the Mission
Borrower shall not exceed $25,000,000;
(B) unless otherwise specifically provided in this
Agreement, upon the effectiveness of the Incremental Revolving
Commitment or Incremental Term Commitment relating thereto as
provided in Section 2.01(c)(ii), be deemed to be a Revolving
Loan or a Term B Loan as defined herein, as applicable, for all
purposes under this Agreement, including for purposes of the
sharing of Collateral and guarantees under the Guaranty
Agreements all on a pari passu basis with all other Obligations;
(C) have such pricing as may be agreed by the Borrower
and the Banks providing such Incremental Revolving Loans and/or
Incremental Term Loans pursuant to the provisions of this
Section 2.01(c) and Section 2.16; and
(D) except as specifically provided in this subsection
(D) and subsection (C) above or in Section 2.08, otherwise have
all of the same terms and conditions as the Revolving Loans that
are not Incremental Revolving Loans (if such Incremental Loans
are Incremental Revolving Loans) or as the Term B Loans (if such
Incremental Loans are Term B Loans); provided that
notwithstanding anything to the contrary contained herein, the
maturity date of the Incremental Term Loans shall be the
Incremental Term Maturity Date.
In addition, unless otherwise specifically provided in this Agreement,
all references in the Loan Documents to Revolving Loans and to Term B
Loans shall be deemed, as the context requires, to include references to
Incremental
47
Revolving Loans and Incremental Term Loans, respectively, made pursuant
to this Agreement. No Bank shall have any obligation to make an
Incremental Loan unless and until it commits to do so. Subject to the
proviso at the end of Section 2.16(a), Commitments in respect of
Incremental Loans shall become Commitments under this Agreement pursuant
to (x) an amendment (each, an "Incremental Loan Amendment") to this
Agreement executed by the Borrower, each Bank or other approved
financial institution agreeing to provide such Commitment (and no other
Bank shall be required to execute such amendment), and the
Administrative Agent, and (y) any amendments to the other Loan Documents
(executed by the relevant Credit Party and the Administrative Agent
only) as the Administrative Agent shall reasonably deem appropriate to
effect such purpose. Notwithstanding anything to the contrary contained
herein, the effectiveness of such Incremental Loan Amendment shall be
subject to the receipt by the Administrative Agent of a certificate of
the Borrower executed by a Responsible Officer of the Borrower
certifying that immediately prior to and after giving effect to the
incurrence of the Incremental Facility (A) each of the representations
and warranties made by the Credit Parties in or pursuant to the Loan
Documents shall be true and correct in all material respects, (B) the
Borrower is in compliance with each of the financial covenants contained
in Section 8.09 and set forth in a Pro Forma Compliance Certificate
delivered to the Administrative Agent, based on financial projections of
the Borrower and its Subsidiaries attached to such certificate which
have been prepared on a Pro Forma Basis giving effect to any Borrowing
made hereunder on such date and the consummation of any related
transaction and (C) no Default or Event of Default shall have occurred
and be continuing or be caused by the incurrence of the Incremental
Facility.
(ii) So long as (x) the Borrower shall have given the
Administrative Agent no less than five Business Days' prior notice of
the effectiveness thereof and (y) any financial institution not
theretofore a Bank which is providing an Incremental Revolving
Commitment and/or an Incremental Term Commitment shall have become a
Bank under this Agreement pursuant to an Incremental Loan Amendment, the
Incremental Revolving Commitment and/or Incremental Term Commitment
being requested by the Borrower shall become effective under this
Agreement upon the effectiveness of such Incremental Loan Amendment.
Upon such effectiveness, Schedule 2.01 shall be deemed amended to
reflect such Commitments. In the event that an Incremental Facility
shall have become effective, the Bank or Banks providing such
Incremental Revolving Commitments or Incremental Term Commitments shall
be deemed to have agreed, severally and not jointly, upon the terms and
subject to the conditions of this Agreement, (A) with respect to
Incremental Term Commitments, to make an Incremental Term Loan in the
amount of the Incremental Term Commitment of such Bank on the effective
date of the applicable Increment Loan Amendment and (B) with respect to
Incremental Revolving Commitments, to make from time to time during the
period from the date of the effectiveness of the applicable Incremental
Loan Amendment through the Maturity Date, one or more Incremental
Revolving Loans to the Borrower pursuant to the provisions of Section
2.03 in an aggregate
48
principal amount not exceeding at any time the Incremental Revolving
Commitment of such Bank at such time.
2.02 Loan Accounts; Notes.
(a) Loan Accounts. The Loans made by each Bank shall be
evidenced by one or more loan accounts maintained by such Bank and the
Administrative Agent in the ordinary course of business. The loan
accounts maintained by the Administrative Agent shall, in the event of a
discrepancy between the entries in the Administrative Agent's books and
any Bank's books relating to such loan accounts, be controlling and,
absent manifest error, shall be conclusive as to the amount of the Loans
made by the Banks to the Borrower, the interest and payments thereon and
any other amounts owing in respect of this Agreement. Any failure to
make a notation in any such loan account or any error in doing so shall
not limit or otherwise affect the obligations of the Borrower hereunder
to pay any amount owing with respect to the Loans.
(b) Notes. If requested by any Bank, the Borrower shall
execute and deliver to such Bank (and deliver a copy thereof to the
Administrative Agent) one or more promissory notes evidencing the Loans
owing to such Bank pursuant to this Agreement. Any such note shall be in
a form prescribed by the Administrative Agent substantially in the form
of Exhibit L or Exhibit N, as applicable, and shall be entitled to all
of the rights and benefits of this Agreement and the other Loan
Documents.
2.03 Procedure for Borrowing.
(a) Procedure for Revolving Loan Borrowings. Subject to the
terms and conditions of this Agreement, the Borrower may borrow under
the Revolving Commitments and/or under any Incremental Revolving
Commitments comprising an Incremental Facility then in effect, in each
case on any Business Day during the Revolving Commitment Period;
provided that the Borrower shall give the Administrative Agent an
irrevocable Notice of Borrowing, which Notice of Borrowing must be
received by the Administrative Agent prior to 11:00 A.M., Dallas, Texas
time, (i) three Business Days prior to the requested Borrowing Date, if
all or any part of the requested Revolving Loans are to be initially
Eurodollar Loans, or (ii) one Business Day prior to the requested
Borrowing Date otherwise, specifying (A) the aggregate amount of the
Borrowing, (B) the requested Borrowing Date, (C) the Type or Types of
Revolving Loans comprising such Borrowing, and (D) if the Borrowing is
to be entirely or partly of Eurodollar Loans, the respective amounts of
each Tranche and the respective lengths of the initial Interest Periods
therefor (subject to the provisions of the definition of Interest
Period). Each Borrowing under the Revolving Commitments or under any
Incremental Facility consisting of Incremental Revolving Commitments
shall be in an amount equal to (x) in the case of Base Rate Loans,
$1,000,000 or a whole multiple of $500,000 in excess thereof (or, if the
Aggregate Available Revolving Commitment is less than $1,000,000, such
lesser amount) and (y) in the case of Eurodollar Loans, each Tranche
shall be $1,000,000 or a whole multiple of $500,000 in excess thereof.
Upon receipt of a Notice of Borrowing with respect to a Borrowing under
this Section 2.03(a), the Administrative Agent shall promptly notify
each relevant Bank of such Borrowing. Each Revolving
49
Bank will make the amount of its pro rata share of each requested
Borrowing made under the Revolving Facility and the applicable
Incremental Facility, as applicable, available to the Administrative
Agent for the account of the Borrower at the Administrative Agent's
Payment Office prior to 1:00 P.M., Dallas, Texas time on the Borrowing
Date requested by the Borrower in funds immediately available to the
Administrative Agent. Unless any applicable condition as set forth in
Article V has not been satisfied, the proceeds of such Borrowing or
Borrowings will then be made available to the Borrower by the
Administrative Agent by wire transfer in accordance with written
instructions provided to the Administrative Agent by the Borrower.
(b) Procedure for Term B Loan Borrowings. Subject to the
terms and conditions of this Agreement, the Borrower may borrow (i)
under the Term B Commitments on the Effective Date, and (ii) under any
Incremental Facility consisting of Incremental Term Commitments on the
effective date of the relevant Incremental Loan Amendment therefor;
provided in each case that the Borrower shall give the Administrative
Agent an irrevocable Notice of Borrowing, which Notice of Borrowing must
be received by the Administrative Agent prior to 11:00 A.M., Dallas,
Texas time, (i) three Business Days prior to the requested Borrowing
Date, if all or any part of the Borrowings are to be initially
Eurodollar Loans, or (ii) one Business Day prior to the requested
Borrowing Date otherwise, requesting that the Banks participating in
such Borrowing make the Term B Loans on the Effective Date or the
effective date of the relevant Incremental Loan Amendment, as
applicable, and specifying (A) the aggregate amount of the Borrowing,
(B) the Class of Loans comprising such Borrowing, (C) the Type or Types
of Term B Loans comprising such Borrowing, and (D) if the Borrowing is
to be entirely or partly Eurodollar Loans, the respective amounts of
each Tranche (which shall be $1,000,000 or a whole multiple of $500,000
in excess thereof) and the respective lengths of the initial Interest
Periods therefor (subject to the provisions of the definition of
Interest Period). Upon receipt of a Notice of Borrowing with respect to
a Borrowing under this Section 2.03(b), the Administrative Agent shall
promptly notify each relevant Bank of such Borrowing. Each Term B Bank
will make the amount of its pro rata share of each requested Borrowing
made under the Term B Commitments and each relevant Incremental Term
Bank will make its pro rata share of each requested Borrowing made under
the applicable Incremental Facility, as applicable, available to the
Administrative Agent for the account of the Borrower at the
Administrative Agent's Payment Office prior to 1:00 P.M., Dallas, Texas
time, on the requested Borrowing Date, in funds immediately available to
the Administrative Agent. Unless any applicable condition as set forth
in Article V has not been satisfied, the proceeds of such Borrowing or
Borrowings will then be made available to the Borrower by the
Administrative Agent by wire transfer in accordance with written
instructions provided to the Administrative Agent by the Borrower.
(c) No Eurodollar Loans made during an Event of Default.
During the existence of an Event of Default, the Borrower may not elect
to have a Loan be made as a Eurodollar Loan.
50
(d) Limit on Eurodollar Loans. After giving effect to any
Borrowing or Borrowings, there shall not be more than five different
Interest Periods in effect in respect of all Loans which are Eurodollar
Loans.
2.04 Conversion and Continuation Elections for all Borrowings.
(a) Election for Conversion/Continuation. The Borrower may
upon irrevocable written notice (or telephonic notice immediately
confirmed in writing) to the Administrative Agent in accordance with
Section 2.04(b): (i) elect to convert on any Business Day, any Base Rate
Loans (or any part thereof in an amount of not less than $1,000,000 or
an integral multiple of $500,000 in excess thereof) into Eurodollar
Loans; (ii) elect to convert on the last day of the Interest Period with
respect thereto, any Eurodollar Loans (or any part thereof in an amount
of not less than $1,000,000 or an integral multiple of $500,000 in
excess thereof) into Base Rate Loans; or (iii) elect to continue on the
last day of the Interest Period with respect thereto, any Eurodollar
Loans (or any part thereof in an amount not less than $1,000,000 or an
integral multiple of $500,000 in excess thereof); provided, however that
if the aggregate amount of a Borrowing comprised of Eurodollar Loans
shall have been reduced, by payment, prepayment, or conversion of part
thereof to be less than $500,000, the Eurodollar Loans comprising such
Borrowing shall automatically convert into Base Rate Loans on the last
day of the then-current Interest Period therefor, and on and after such
date the right of the Borrower to continue such Loans as, and convert
such Loans into, Eurodollar Loans shall terminate.
(b) Notice of Conversion/Continuation. The Borrower shall
deliver a Notice of Conversion/Continuation in accordance with Section
11.02 to be received by the Administrative Agent not later than (i)
11:00 A.M. Dallas, Texas time not less than three Business Days in
advance of the Conversion Date or Continuation Date if any Loans are to
be converted into or continued as Eurodollar Loans and (ii) 11:00 A.M.
Dallas, Texas time not less than one Business Day in advance of the
Conversion Date, if any Loans are to be converted into Base Rate Loans,
specifying (A) the proposed Conversion Date or Continuation Date, which
shall be a Business Day, (B) the aggregate principal amount of Loans to
be converted or continued, (C) the nature of the proposed conversion or
continuation and (D) the duration of the requested Interest Period, if
applicable.
(c) Failure to Elect Interest Period. If upon the expiration
of any Interest Period applicable to Eurodollar Loans, the Borrower has
failed to timely select a new Interest Period, such Loans shall
automatically convert into Base Rate Loans.
(d) Notice to Banks. Upon receipt of a Notice of
Conversion/Continuation, the Administrative Agent will promptly notify
each Bank thereof, or, if no timely notice is provided by the Borrower,
the Administrative Agent will promptly notify each Bank of the details
of any automatic conversion. All conversions and continuations shall be
made pro rata according to the respective outstanding principal amounts
of the Loans with respect to which the notice was given.
51
(e) No Conversion/Continuation During Event of Default.
During the existence of an Event of Default, the Borrower may not elect
to have a Loan converted into or continued as a Eurodollar Loan.
(f) Limitation on Interest Periods. Notwithstanding any
other provision contained in this Agreement, after giving effect to any
conversion or continuation of any Loans, there shall not be more than
five different Interest Periods in effect in respect of all Loans which
are Eurodollar Loans.
2.05 Reduction and Termination of Commitments.
(a) The Borrower may, upon not less than five Business Days'
prior notice to the Administrative Agent, terminate or permanently
reduce the Aggregate Revolving Commitment, without premium or penalty,
by an aggregate minimum amount of $1,000,000 or any multiple of $500,000
in excess thereof; provided, however that no such termination or
reduction shall be permitted if after giving effect thereto and to any
prepayment of Revolving Loans made under the Revolving Commitments which
are made on the effective date of such termination or reduction (x) the
then outstanding principal amount of all Revolving Loans made under the
Revolving Commitments plus the amount of the then outstanding Letter of
Credit Obligations would exceed the Aggregate Revolving Commitment then
in effect or (y) the aggregate amount of all Letter of Credit
Obligations would exceed the Letter of Credit Commitment then in effect;
and provided further that once reduced in accordance with this Section
2.05(a), the Aggregate Revolving Commitment may not be increased. Any
reduction of the Aggregate Revolving Commitment pursuant to this Section
2.05(a) shall be applied pro rata to each Bank's Revolving Commitment.
All accrued commitment and letter of credit fees to the effective date
of any reduction or termination of the Aggregate Revolving Commitment
shall be paid on the effective date of such reduction or termination.
The Administrative Agent shall promptly notify the affected Banks of any
such reduction or termination of the Aggregate Revolving Commitment.
(b) The Borrower may, upon not less than five Business Days'
prior notice to the Administrative Agent, terminate or permanently
reduce the Incremental Revolving Commitments under an Incremental
Facility, without premium or penalty, by an aggregate minimum amount of
$1,000,000 or any multiple of $500,000 in excess thereof; provided,
however that no such termination or reduction shall be permitted if
after giving effect thereto and to any prepayment of the Incremental
Revolving Loans made under such Incremental Facility which are made on
the effective date of such termination or reduction, the then
outstanding principal amount of the Incremental Revolving Loans made
under such Incremental Facility would exceed the total amount of such
Incremental Revolving Commitments then in effect with respect to such
Incremental Facility; and provided further that once reduced in
accordance with this Section 2.05(b), such Incremental Revolving
Commitments may not be increased. Any reduction of Incremental Revolving
Commitments under an Incremental Facility pursuant to this Section
2.05(b) shall be applied pro rata to each applicable Incremental
Revolving Bank's Incremental Revolving Commitment under such Incremental
Facility. All accrued commitment fees to the effective date of any such
reduction or termination of
52
Incremental Revolving Commitments shall be paid on the effective date of
such reduction or termination. The Administrative Agent shall promptly
notify the affected Incremental Banks of any such reduction or
termination of Incremental Revolving Commitments under an Incremental
Facility.
(c) The Aggregate Term B Commitment shall automatically
terminate effective as of the day after the Effective Date. The
Incremental Term Commitments under any Incremental Facility shall
terminate effective as of the day after the effective date of the
Incremental Loan Amendment relating thereto.
2.06 Voluntary Prepayments.
(a) The Borrower may, prior to 11:00 A.M. Dallas, Texas
time, upon at least three Business Days' written notice by the Borrower
to the Administrative Agent in the case of Eurodollar Loans, and prior
to 9:00 A.M. Dallas, Texas time, upon two Business Days' written notice
on any Business Day in the case of Base Rate Loans, prepay Revolving
Loans and/or Term B Loans, as the Borrower may elect, in whole or in
part, in amounts of $1,000,000 or an integral multiple of $500,000 in
excess thereof.
(b) Any notice of prepayment delivered pursuant to this
Section 2.06 shall specify the date and amount of such prepayment,
whether the prepayment is to be made with respect to Revolving Loans
and/or Term B Loans and the Type of Loans to be prepaid. The
Administrative Agent will promptly notify each affected Bank thereof and
of such Bank's pro rata portion of such prepayment. If such notice is
given by the Borrower and not withdrawn, the Borrower shall make such
prepayment, and the payment amount specified in such notice shall be due
and payable, on the date specified therein together with accrued
interest to each such date on the amount prepaid and the amounts, if
any, required pursuant to Section 4.04; provided that interest to be
paid in connection with any such prepayment of Base Rate Loans (other
than a prepayment in full) shall instead be paid on the next occurring
Interest Payment Date.
(c) Any prepayment of Term B Loans pursuant to this Section
2.06 shall be applied to the remaining scheduled installments of Term B
Loans to be made pursuant to Section 2.08(a) pro rata (based on the then
remaining amounts of such remaining installments).
2.07 Mandatory Prepayments.
(a) (i) If on any date the aggregate unpaid principal
amount of outstanding Revolving Loans made under the Revolving
Commitments, plus the outstanding Letter of Credit Obligations (to the
extent not Cash Collateralized pursuant to clause (ii) below or as
provided for in Section 3.07) exceeds the Aggregate Revolving
Commitment, then the Borrower shall immediately prepay the amount of
such excess. Any payments on Revolving Loans made under the Revolving
Commitments pursuant to this Section 2.07(a)(i) shall be applied pro
rata among the Banks with Revolving Commitments.
53
(ii) If on any date the aggregate amount of all
Letter of Credit Obligations shall exceed the Letter of Credit
Commitment, the Borrower shall Cash Collateralize on such date
an amount equal to the excess of the Letter of Credit
Obligations over the Letter of Credit Commitment.
(iii) If on any date the aggregate unpaid principal
amount of outstanding Incremental Revolving Loans made under an
Incremental Facility exceeds the aggregate amount of the
Incremental Revolving Commitments relating to such Incremental
Facility, then the Borrower shall immediately prepay the amount
of such excess. Any payments on Incremental Revolving Loans made
under an Incremental Facility pursuant to this Section
2.07(a)(iii) shall be applied pro rata among the applicable
Incremental Banks having Incremental Revolving Commitments with
respect to such Incremental Facility.
(b) (i) If on any date any Nexstar Entity shall make any
Disposition, an amount equal to 100% of the Net Cash Proceeds from such
Disposition shall be applied on such date to prepay outstanding
principal of the Term B Loans and the Revolving Loans on a pro rata
basis among such Loans, provided that with respect to no more than
$1,000,000 in the aggregate of the Net Cash Proceeds received in
connection with any Disposition, the Net Cash Proceeds therefrom shall
not be required to be so applied if no Default or Event of Default then
exists and, provided further, that this requirement for mandatory
prepayment will be further reduced to the extent that the Borrower
elects, as hereinafter provided, to attempt to cause some or all of such
Net Cash Proceeds to be reinvested in Reinvestment Assets. The Borrower
may elect to attempt to cause some or all of the Net Cash Proceeds from
a Disposition to be reinvested in Reinvestment Assets during the
Reinvestment Period (a "Reinvestment Election") if (x) no Default or
Event of Default exists on the date of such Reinvestment Election and
(y) if such Reinvestment Election is made by the delivery of a
Reinvestment Notice to the Administrative Agent on or before the date of
the consummation of such Disposition, with such Reinvestment Election
being effective with respect to the Net Cash Proceeds of such
Disposition equal to the Anticipated Reinvestment Amount specified in
such Reinvestment Notice.
(ii) Nothing in this Section 2.07(b) shall be deemed
to permit any Disposition not otherwise permitted under this
Agreement.
(iii) On the Reinvestment Prepayment Date with respect
to a Reinvestment Election, an amount equal to the Reinvestment
Prepayment Amount, if any, for such Reinvestment Election shall
be applied to prepay outstanding principal of the Term B Loans
and the Revolving Loans on a pro rata basis among such Loans.
(c) Within 90 days after any Nexstar Entity receives any
proceeds from any Recovery Event, an amount equal to 100% of the
proceeds of such Recovery Event (net of reasonable costs including,
without limitation, legal costs and expenses and taxes incurred in
connection with such Recovery Event and the collection of the proceeds
thereof) shall be applied to prepay outstanding principal of the Term B
Loans and the Revolving Loans on a pro rata basis among such Loans;
provided that so long as no
54
Default or Event of Default then exists, this requirement for mandatory
prepayment shall be reduced by any amounts (i) actually applied on or
before such 90th day or (ii) committed in writing on or before such 90th
day to be applied to the replacement or restoration of the assets
subject to such Recovery Events within 365 days after such Recovery
Event and; provided further that with respect to no more than $1,000,000
in the aggregate of the proceeds received from any Recovery Event, the
proceeds therefrom shall not be required to be so applied if no Default
or Event of Default then exists.
(d) On each date which is 90 days after the last day of each
Fiscal Year commencing with the Fiscal Year ending on December 31, 2003,
an amount equal to 75% of the Excess Cash Flow of the Borrower for such
Fiscal Year shall be applied to prepay outstanding principal of the Term
B Loans and the Revolving Loans on a pro rata basis among such Loans;
provided that (A) if the Consolidated Total Leverage Ratio on the last
day of each of the last two consecutive Fiscal Quarters during such
Fiscal Year is equal to or less than 5.50:1.00, an amount equal to 50%,
and not 75%, of the Excess Cash Flow of the Borrower for such Fiscal
Year shall be applied to prepay outstanding principal of the Term B
Loans and the Revolving Loans on a pro rata basis among such Loans, and
(B) if the Consolidated Total Leverage Ratio on the last day of each of
the last two consecutive Fiscal Quarters during such Fiscal Year is
equal to or less than 4.50:1.00, then no payment in respect of such
Fiscal Year shall be required pursuant to this Section 2.07(d) and,
provided further that with respect to each Fiscal Year, the amount which
would otherwise be payable pursuant to this Section 2.07(d) may be
reduced by $1,000,000 so long as no Default or Event of Default exists
on such 90th day.
(e) On the Business Day after the date of the receipt by any
Nexstar Entity of Net Issuance Proceeds from any sale or issuance of
Capital Stock (including the Permitted Parent Preferred Equity described
in Section 8.05(l)) or cash capital contribution other than Excluded
Proceeds, the Borrower shall prepay outstanding principal of the Term B
Loans and the Revolving Loans, on a pro rata basis among such Loans, in
an amount equal to 50% of such Net Issuance Proceeds, provided so long
as no Default or Event of Default exists on the date of such issuance,
the amount of the prepayments required to be made under this Section
2.07(e) shall be reduced to the extent (but only to the extent) that
such Net Issuance Proceeds are used or to be used in connection with an
Acquisition made in accordance with the terms of Section 8.04 (including
by waiver or consent) which a Nexstar Entity commits to in writing
pursuant to a stock purchase agreement (or similar agreement) prior to
or not later than six months after the date of such issuance; provided
further that at any time after the expiration of the six month period,
if (A) the definitive agreement executed in connection with any such
Acquisition is terminated, expired or otherwise becomes ineffective
prior to the consummation of such Acquisition, (B) the Borrower is no
longer pursuing the consummation of the Acquisition in good faith or (C)
such Acquisition is not consummated within 18 months from the date the
Nexstar Entity committed in writing to such Acquisition, then the amount
of prepayments required to be made under this Section 2.07(e) shall be
increased by the amount of such Net Issuance Proceeds that were not used
to consummate such Acquisition.
55
(f) If on any date any Nexstar Entity shall incur or issue
any Indebtedness (other than the Permitted Parent Preferred Equity
described in Section 8.05(l) and Indebtedness described in subsections
(a) - (d), (f) - (i) and (k) of Section 8.05), then on each such date of
incurrence or issuance an amount equal to the amount of the Net Debt
Proceeds received with respect to such Indebtedness shall be applied to
prepay outstanding principal of the Term B Loans and the Revolving
Loans, on a pro rata basis among such Loans; provided so long as no
Default or Event of Default exists on the date of such incurrence or
issuance, the amount of the prepayments required to be made under this
Section 2.07(f) shall be reduced to the extent (but only to the extent)
that such Net Debt Proceeds are used or to be used in connection with an
Acquisition made in accordance with Section 8.04 (including by waiver or
consent) which a Nexstar Entity commits to in writing pursuant to a
stock purchase agreement (or similar agreement) prior to or not later
than six months after the date of such incurrence or issuance of
Indebtedness; provided further that at any time after the expiration of
the six month period, if (A) the definitive agreement executed in
connection with any such Acquisition is terminated, expired or otherwise
becomes ineffective prior to the consummation of such Acquisition, (B)
the Borrower is no longer pursuing the consummation of the Acquisition
in good faith or (C) such Acquisition is not consummated within 18
months from the date the Nexstar Entity committed in writing to such
Acquisition, then the amount of prepayments required to be made under
this Section 2.07(f) shall be increased by the amount of such Net Debt
Proceeds that were not used to consummate such Acquisition.
(g) The Borrower shall pay, together with each prepayment
under this Section 2.07, accrued interest on the amount prepaid and any
amounts required pursuant to Section 4.04; provided that interest to be
paid in connection with any such prepayment of Base Rate Loans (other
than a prepayment in full) shall instead be paid on the next occurring
Interest Payment Date.
(h) Any prepayments pursuant to this Section 2.07 made on a
day other than an Interest Payment Date for any Loan shall be applied
first to any Base Rate Loans then outstanding and then to Eurodollar
Loans with the shortest Interest Periods remaining.
(i) Any prepayment of Term B Loans pursuant to this Section
2.07 shall be applied to the remaining scheduled installments of Term B
Loans to be made pursuant to Section 2.08(a), pro rata (based on the
then remaining amounts of such remaining installments).
(j) Notwithstanding anything to the contrary contained in
this Section 2.07, any Term B Bank may elect, by delivering written
notice to the Administrative Agent prior to the receipt thereof, not to
receive its pro rata portion of any mandatory prepayment that would
otherwise be payable to such Term B Bank pursuant to this Section 2.07,
whereupon such portion shall be reallocated to prepay the outstanding
principal amount of all Term B Loans and Revolving Loans other than the
Term B Loans held by such Term B Bank and any other Term B Bank that has
elected not to receive its pro rata portion of such mandatory
prepayment, on a pro rata basis among such Loans.
56
2.08 Maturity and Amortization of Loans.
(a) The Term B Loans. (i) Subject to subsection (ii) below,
the Term B Loans shall mature, and the outstanding principal amount
thereof shall be due and payable in full (together with all accrued and
unpaid interest thereon), on the Maturity Date. In addition, on the last
day of each Fiscal Quarter (or, in the case of the final principal
installment to be repaid in Fiscal Year 2010, on the Stated Term B
Maturity Date), commencing on March 31, 2004, the Borrower shall repay,
and there shall become due and payable, a quarterly principal
installment on the Term B Loans in an amount equal to one quarter of the
following annual percentage reductions for each Fiscal Year set forth
below of the sum of the Aggregate Outstanding Term B Loan Balance on
March 31, 2004 plus the initial amount of each Incremental Term Loan:
Fiscal Year Annual Percentage Reduction
----------------------------------- ---------------------------------
2003 00.0%
2004 01.0%
2005 01.0%
2006 01.0%
2007 01.0%
2008 01.0%
2009 01.0%
2010 94.0%
and all other unpaid principal
amount of Term B Loans and unpaid
Obligations accrued in connection
with such Term B Loans
The aggregate principal amount of each installment paid during
any Fiscal Year on the Term B Loans shall in each case be an amount
equal to the applicable annual percentage reduction set forth above
with respect to such Fiscal Year, divided by the number of quarterly
installments to be made during such Fiscal Year (with the last
installment in Fiscal Year 2010, to be made on the Stated Term B
Maturity Date, deemed a quarterly installment for purposes of this
Section 2.08(a)).
(ii) The applicable Incremental Loan Amendment may provide
for scheduled repayments of any Incremental Term Loans, subject to the
requirements of the definition of Incremental Term Maturity Date.
(b) Application of Term B Loan Payments. Subject to Section
2.07(j), any payment made on Term B Loans pursuant to this Section 2.08,
Section 2.06 or Section 2.07 shall be applied pro rata to each Bank's
Term B Loans in accordance with such Bank's Term B Facility Percentage
(and, in the case of a Bank with both
57
Incremental Term Loans and Term B Loans that are not Incremental Term
Loans, allocated ratably among such Bank's Incremental Term Loans and
Term B Loans that are not Incremental Term Loans).
(c) The Revolving Loans. Each Revolving Loan (including all
Incremental Revolving Loans) shall mature, and the outstanding principal
amount thereof shall be due and payable in full (together with all
accrued and unpaid interest thereon) on the Maturity Date.
(d) All Obligations. The aggregate outstanding amount of all
Loans, all Letter of Credit Borrowings, all fee and expenses and all
other outstanding and unpaid Obligations shall be due and payable in
full on December 31, 2010; except for Incremental Term Loans which shall
be due and payable on the Incremental Term Maturity Date.
(e) Application of Revolving Loan Payments. Any payment made
on Revolving Loans pursuant to this Section 2.08, Section 2.06, or
Sections 2.07(b), (c), (d), (e), or (f) shall be applied pro rata to
each Bank's Revolving Loans in accordance with such Bank's Revolving
Facility Percentage (and, in the case of a Bank with both Incremental
Revolving Loans and Revolving Loans that are not Incremental Revolving
Loans, allocated ratably among such Bank's Incremental Revolving Loans
and Revolving Loans that are not Incremental Revolving Loans).
2.09 Fees. In addition to fees described in Section 3.08:
(a) Commitment Fees.
(i) The Borrower shall pay to the Administrative
Agent for the ratable account of each Bank with a Revolving
Commitment, on the last Business Day of each March, June,
September and December and on the earlier of the Maturity Date
and the date on which the Aggregate Revolving Commitment shall
have been terminated in full, an aggregate commitment fee (the
"Revolving Commitment Fee") on the daily average amount of the
Aggregate Available Revolving Commitment equal to 0.500% per
annum for any period that the Consolidated Total Leverage Ratio
as of the most recent Leverage Ratio Determination Date for such
period is greater than or equal to 5.50 to 1.00 and 0.375% per
annum for any period that the Consolidated Total Leverage Ratio
as of the most recent Leverage Ratio Determination Date for such
period is less than 5.50 to 1.00. The Revolving Commitment Fee
shall begin to accrue on and after the Effective Date and shall
cease to accrue on the earlier of the Maturity Date and the date
on which the Aggregate Revolving Commitments shall have been
terminated in full.
(ii) The Borrower shall pay to the Administrative
Agent for the account of each Bank with an Incremental Revolving
Commitment, on the last Business Day of each March, June,
September and December and on the earlier of the Maturity Date
and the date on which each Incremental Revolving
58
Commitment of a Bank shall have been terminated in full, the
Incremental Commitment Fee for each Incremental Revolving
Commitment of such Bank on the daily average amount of each of
such Bank's aggregate unutilized Incremental Revolving
Commitments. Each Incremental Commitment Fee shall begin to
accrue on and after the date when the related Incremental
Revolving Commitment shall have become effective hereunder and
shall cease to accrue on the earlier of the Maturity Date and
the date on which such Incremental Revolving Commitment shall
have been terminated in full.
(b) Other Fees. The Borrower shall pay such other fees as
have been, or may be, agreed upon between the Borrower and the
Administrative Agent from time to time.
(c) Fees under Existing Nexstar Credit Agreement.
Notwithstanding anything to the contrary in this Agreement, all fees
which, as of the Effective Date, remain outstanding under the Existing
Nexstar Credit Agreement will be due and payable on the first payment
date scheduled for payment of such fees under this Agreement occurring
after the Effective Date.
2.10 Computation of Fees and Interest.
(a) All computations of commitment fees, and of interest
payable in respect of Base Rate Loans based upon the prime rate, shall
be made on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed. All other computations of fees and interest
under this Agreement shall be made on the basis of a 360-day year and
actual days elapsed. Interest and fees shall accrue during each period
during which interest or such fees are computed from the first day
thereof to the last day thereof.
(b) The Administrative Agent will promptly notify the
Borrower and the Banks of each determination of the Eurodollar Rate;
provided, however, that any failure to do so shall not relieve the
Borrower of any liability hereunder. Any change in the interest rate on
a Loan resulting from a change in the Applicable Margin or the
Incremental Margin relating thereto shall become effective as of the
opening of business on the relevant date of such change. The
Administrative Agent will promptly notify the Borrower and the Banks of
the effective date and the amount of each such change; provided,
however, that any failure to do so shall not relieve the Borrower of any
liability hereunder.
(c) Each determination of an interest rate by the
Administrative Agent shall be conclusive and binding on the Borrower and
the Banks in the absence of manifest error.
2.11 Interest.
(a) Except as provided in Section 2.11(d) below, each Term B
Loan and each Revolving Loan shall bear interest on the outstanding
principal amount thereof from the Borrowing Date applicable thereto
until it becomes due and payable at a rate per annum equal to the Base
Rate, or the Eurodollar Rate, as selected by the Borrower from time to
time pursuant to Sections 2.03 and 2.04, plus the Applicable Margin or
Incremental
59
Margin, as the case may be, with respect to the Base Rate and the
Eurodollar Rate then in effect.
(b) Any change in the Applicable Margin or the applicable
Incremental Margin due to a change in the Consolidated Total Leverage
Ratio shall be effective on the applicable Adjustment Date and shall
apply to all Loans that are outstanding at any time during the period
commencing on such Adjustment Date and ending on the date immediately
preceding the next Adjustment Date.
(c) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any
prepayment of any portion of any Loan (excluding Base Rate Loans, which
such interest shall be paid on the next occurring Interest Payment Date)
for the portion of such Loans so prepaid. During the existence of any
Event of Default, interest shall be paid on demand.
(d) If any amount of principal of or interest on any Loan,
or any other regularly scheduled amount payable hereunder or under any
other Loan Document, is not paid in full when due and payable (whether
at stated maturity, by acceleration, demand or otherwise), after giving
effect to any applicable grace periods, the Borrower shall pay interest
(after as well as before judgment) on the principal amount of all
outstanding Loans at the applicable rate per annum provided in this
Section 2.11 plus 2%, and on all other amounts (including interest) at a
rate per annum equal to the Base Rate plus 2%.
(e) Anything herein to the contrary notwithstanding, the
obligations of the Borrower hereunder shall be subject to the limitation
that payments of interest shall not be required for any period for which
interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by the respective Bank
would be contrary to the provisions of any law applicable to such Bank
limiting the highest rate of interest which may be lawfully contracted
for, charged or received by such Bank, and in such event the Borrower
shall pay such Bank interest at the highest rate permitted by applicable
law.
2.12 Payments by the Borrower.
(a) All payments (including prepayments) to be made by the
Borrower on account of principal, interest, drawings under Letters of
Credit, fees and other amounts required hereunder shall be made without
condition or deduction for any counterclaim, defense, recoupment or
set-off and shall, except as otherwise expressly provided with respect
to drawings under Letters of Credit and elsewhere herein, be made to the
Administrative Agent for the ratable account of the relevant Banks at
the Administrative Agent's Payment Office, and shall be made in Dollars
and in immediately available funds, no later than 12:00 noon (Dallas,
Texas time) on the date specified herein. The Administrative Agent will
promptly distribute to each relevant Bank its share, if any, of such
principal, interest, fees or other amounts, in like funds as received.
Any payment which is received by the Administrative Agent later than
12:00 noon (Dallas, Texas time) shall be deemed to have been received on
the immediately succeeding Business Day
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and any applicable interest or fee shall continue to accrue until such
payment is deemed to have been received.
(b) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such
case be included in the computation of interest or fees, as the case may
be, subject to the provisions set forth in the definition of the term of
"Interest Period" herein.
(c) Unless the Administrative Agent shall have received
notice from the Borrower, prior to the date on which any payment is due
to the Banks hereunder, that the Borrower will not make such payment in
full, the Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent as required hereunder
on such date in immediately available funds and the Administrative Agent
may (but shall not be so required), in reliance upon such assumption,
cause to be distributed to each relevant Bank on such due date an amount
equal to the amount then due such Bank. If and to the extent the
Borrower shall not have made such payment in full to the Administrative
Agent, each relevant Bank shall repay to the Administrative Agent on
demand such amount distributed to such Bank, together with interest
thereon for each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the Administrative
Agent, at the Federal Funds Rate as in effect for each such day.
2.13 Payments by the Banks to the Administrative Agent.
(a) Unless the Administrative Agent shall have received
notice from a Bank on the Effective Date or, with respect to each
Borrowing after the Effective Date, at least one Business Day prior to
the date of any proposed Borrowing, that such Bank will not make
available to the Administrative Agent for the account of the Borrower
the amount of such Bank's pro rata share of the applicable Commitments
to which such Borrowing relates, the Administrative Agent may assume
that each Bank has made such amount available to the Administrative
Agent as required hereunder on the Borrowing Date and the Administrative
Agent may (but shall not be so required), in reliance upon such
assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent any Bank shall not have made its full
amount available to the Administrative Agent in immediately available
funds and the Administrative Agent in such circumstances has made
available to the Borrower such amount, such Bank shall immediately make
such amount available to the Administrative Agent, together with
interest at the Federal Funds Rate from the date of such Borrowing to
the date on which the Administrative Agent recovers such amount from
such Bank. A notice of the Administrative Agent submitted to any Bank
with respect to amounts owing under this Section 2.13(a) shall be
conclusive, absent manifest error. If such amount is so made available
by the relevant Bank, such payment to the Administrative Agent shall
constitute such Bank's Loan on the Borrowing Date for all purposes of
this Agreement. If such amount is not made available to the
Administrative Agent on the next Business Day following such Borrowing
Date, the Administrative Agent shall notify the Borrower of such failure
to fund and, upon demand by the Administrative Agent, the Borrower shall
61
pay such amount to the Administrative Agent for the Administrative
Agent's account, together with interest thereon for each day elapsed
since such Borrowing Date, at a rate per annum equal to the interest
rate applicable at the time to the Loans comprising such Borrowing.
(b) The obligations of the Banks hereunder to make Loans are
several and not joint. The failure of any Bank to make any Loan
committed to by such Bank on any Borrowing Date shall not relieve any
other Bank of any obligation hereunder to make Loans committed to by
such other Bank on such Borrowing Date, but no Bank shall be responsible
for the failure of any other Bank to make Loans committed to be made by
such other Bank on any Borrowing Date.
2.14 Sharing of Payments, etc.
(a) If, other than as expressly provided elsewhere herein,
any Bank shall obtain on account of Obligations relating to Revolving
Loans and/or Term B Loans, as the case may be, owing to it any payment
(whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its Revolving Facility Percentage
and/or Term B Facility Percentage, as applicable, such Bank shall
forthwith (i) notify the Administrative Agent of such fact, and (ii)
purchase from the other relevant Banks such participations in such
Obligations relating to Revolving Loans and/or Term B Loans, as
applicable, made by them as shall be necessary to cause such purchasing
Bank to share the excess payment ratably with each such other Banks;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase shall to
that extent be rescinded and each other relevant Bank shall repay to the
purchasing Bank the purchase price paid therefor, together with an
amount equal to such paying Bank's commitment percentage (according to
the proportion of (x) the amount of such paying Bank's required
repayment to (y) the total amount so recovered from the purchasing Bank)
of any interest or other amount paid or payable by the purchasing Bank
in respect of the total amount so recovered. The Administrative Agent
will keep records (which shall be conclusive and binding in the absence
of manifest error) of participations purchased pursuant to this Section
2.14 and will in each case notify the relevant Banks following any such
purchases.
(b) The Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section 2.14 may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 11.09) with
respect to such participation as fully as if such Bank were the direct
creditor of the Borrower in the amount of such participation.
2.15 Security Documents and Guaranty Agreements.
(a) All Obligations under this Agreement and all other Loan
Documents shall be secured in accordance with the Security Documents.
(b) All Obligations under this Agreement and all other Loan
Documents shall be unconditionally guaranteed by the Parent Guarantors
pursuant to the Parent Guaranty
62
Agreements and by the Subsidiary Guarantors pursuant to the Subsidiary
Guaranty Agreement.
2.16 Procedure for Incremental Loan Requests.
(a) When the Borrower wishes to request one or more Banks or
other financial institutions approved by the Administrative Agent (in
each case, such approval not to be unreasonably withheld) to provide
proposals for the providing of an Incremental Facility consisting of
Incremental Revolving Loans or Incremental Term Loans to the Borrower,
the Borrower may solicit requests from any such Banks or other financial
institutions for the providing of (i) a commitment for an Incremental
Revolving Loan (each, an "Incremental Revolving Commitment") or an
Incremental Term Loan (each, an "Incremental Term Commitment"), as the
case may be, and (ii) as applicable to such Incremental Revolving
Commitments or Incremental Term Commitments, (x) the upfront fee to be
charged by such Banks or other financial institutions in connection with
the providing of such Incremental Revolving Commitments or Incremental
Term Commitments (any such upfront fee, each an "Incremental Upfront
Fee"), (y) the commitment fee to be charged by such Banks or other
financial institutions with respect to such Incremental Revolving
Commitments or Incremental Term Commitments (any such commitment fee,
each an "Incremental Commitment Fee") and (z) the margins to be added by
such Banks or other financial institutions to the Base Rate and the
Eurodollar Rate for Loans made under such Incremental Revolving
Commitment or Incremental Term Commitments (any such margin, an
"Incremental Margin"). Upon the selection by the Borrower of Banks or
other financial institutions, the Borrower shall promptly notify the
Administrative Agent of the Banks or other financial institutions
selected and the amount of the Incremental Revolving Commitments and/or
Incremental Term Commitments, the Incremental Upfront Fee, Incremental
Commitment Fee and the Incremental Margin as agreed upon by the Borrower
and such Banks or other financial institutions; provided, that if such
Incremental Margin for Incremental Revolving Loans is greater than the
margin set forth for Revolving Loans in the definition of "Applicable
Margin" contained in Section 1.01, or if such Incremental Commitment
Fees are greater than the Revolving Commitment Fee set forth in Section
2.09(a), the Incremental Loan Amendment pursuant to which such proposed
Incremental Commitments are to be made available shall not become
effective unless the prior written consent of the Majority Banks has
been obtained, and provided, further, that if, pursuant to an
Incremental Loan Amendment, any net yield for the related Incremental
Term Loans is in excess of 25 basis points above the comparable margin
set forth for Term B Loans in the definition of "Applicable Margin"
contained in Section 1.01, the Applicable Margin for outstanding Term B
Loans shall automatically be increased to any extent required so that
the margin applicable thereto is 25 basis points less than the margin
for such Incremental Term Loans without any action or consent of the
Borrower, the Administrative Agent or any Bank.
(b) Notwithstanding anything to the contrary contained
herein, it is understood and agreed that (i) there shall be no more than
(x) five different Incremental Margins in effect in respect of all
Incremental Loans and (y) five different Interest Periods in effect in
respect of all Loans (including Incremental Loans) which are
63
Eurodollar Loans; and (ii) if no Incremental Margin is agreed upon, with
respect to any given Incremental Facility, then the Incremental Margin
shall be deemed to be (x) the Applicable Margin for Revolving Loans
(other than Incremental Revolving Loans) as in effect from time to time
if the commitment is an Incremental Revolving Commitment or (y) the
Applicable Margin for Term B Loans (other than Incremental Term Loans)
as in effect from time to time if the commitment is an Incremental Term
Commitment.
(c) From time to time, the Borrower and the Banks shall
furnish such information to the Administrative Agent as the
Administrative Agent may request relating to the providing of an
Incremental Loan, including the amounts, interest rates, and dates of
Borrowings thereof, for purposes of the allocation of amounts received
from the Borrower for payment on all amounts owing hereunder.
ARTICLE III.
LETTERS OF CREDIT
3.01 Letter of Credit Subfacility.
(a) Subject to the terms and conditions set forth herein,
(i) the Issuing Bank agrees in reliance upon the agreements of the other
Banks set forth in this Article III, (A) from time to time, on any
Business Day during the period from the Effective Date to the date which
is 30 days prior to the Maturity Date to issue Letters of Credit for the
account of the Borrower and its Subsidiaries, and to amend or renew
Letters of Credit previously issued by it, in accordance with Sections
3.02(b) and 3.02(d), and (B) to honor drafts under the Letters of
Credit; and (ii) the Banks with Revolving Commitments severally agree to
participate in such Letters of Credit; provided however that the Issuing
Bank shall not issue any Letter of Credit if as of the date of, and
after giving effect to, the issuance of such Letter of Credit, (x) the
aggregate amount of all Letter of Credit Obligations plus the aggregate
principal amount of all Revolving Loans made under the Revolving
Commitments shall exceed the Aggregate Revolving Commitment or (y) the
Letter of Credit Obligations shall exceed the Letter of Credit
Commitment.
(b) The Issuing Bank shall be under no obligation to issue
any Letter of Credit if:
(i) any order, judgment or decree of any
Governmental Authority shall by its terms purport to enjoin or
restrain the Issuing Bank from issuing such Letter of Credit, or
any Requirement of Law applicable to the Issuing Bank or any
request or directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction over the
Issuing Bank shall prohibit, or request that the Issuing Bank
refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the
Issuing Bank with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the
Issuing Bank is not otherwise compensated hereunder) not in
effect on the Effective Date or shall impose upon the Issuing
Bank any
64
unreimbursed loss, cost or expense which was not applicable on
the Effective Date and which the Issuing Bank in good xxxxx
xxxxx material to it;
(ii) the Issuing Bank has received written notice
from any Bank, the Administrative Agent or the Borrower on or
prior to the Business Day prior to the requested date of
issuance of such Letter of Credit, that one or more of the
applicable conditions contained in Article V is not then
satisfied;
(iii) the expiry date of any requested Letter of
Credit (x) is more than one year after the date of issuance,
unless the Majority Banks and the Issuing Bank have approved
such expiry date in writing or (y) is later than the Maturity
Date for Revolving Loans;
(iv) any requested Letter of Credit is not in form
and substance acceptable to the Issuing Bank, or the issuance of
a Letter of Credit shall violate one or more policies of the
Issuing Bank;
(v) any standby Letter of Credit is for the purpose
of supporting the issuance of any letter of credit by any other
Person; or
(vi) such Letter of Credit is in a face amount less
than $20,000 or to be denominated in a currency other than
Dollars.
3.02 Procedures for Issuance, Amendment and Renewal of Letters of
Credit.
(a) Each Letter of Credit shall be issued upon (x) the
irrevocable written request of the Borrower received by the Issuing Bank
(with a copy sent by the Borrower to the Administrative Agent) at least
four Business Days (or such shorter time as the Issuing Bank may agree
in a particular instance in its sole discretion) prior to the proposed
date of issuance and (y) approval by the Administrative Agent of such
request. Each request by the Borrower for issuance of a Letter of Credit
shall be by facsimile, confirmed promptly in an original writing, in the
form of a Letter of Credit Application, and shall specify in form and
detail satisfactory to the Issuing Bank: (i) the proposed date of
issuance of the Letter of Credit (which shall be a Business Day); (ii)
the face amount of the Letter of Credit; (iii) the expiry date of the
Letter of Credit; (iv) the name and address of the beneficiary thereof;
(v) the documents to be presented by the beneficiary of the Letter of
Credit in case of any drawing thereunder; (vi) the full text of any
certificate to be presented by the beneficiary in case of any drawing
thereunder; and (vii) such other matters as the Issuing Bank may
reasonably require.
(b) From time to time while a Letter of Credit is
outstanding and prior to the Maturity Date for Revolving Loans, the
Issuing Bank will, upon the written request of the Borrower received by
the Issuing Bank (with a copy sent by the Borrower to the Administrative
Agent) at least five days (or such shorter time as the Issuing Bank may
agree in a particular instance in its sole discretion) prior to the
proposed date of amendment, upon approval by the Administrative Agent of
such request amend any Letter of Credit issued by it. Each such request
for amendment of a Letter of Credit shall be made by facsimile,
confirmed promptly in an original writing, made in the form of a
65
Letter of Credit Amendment Application and shall specify in form and
detail satisfactory to the Issuing Bank: (i) the Letter of Credit to be
amended; (ii) the proposed date of amendment of the Letter of Credit
(which shall be a Business Day); (iii) the nature of the proposed
amendment; and (iv) such other matters as the Issuing Bank may
reasonably require. The Issuing Bank shall be under no obligation to
amend any Letter of Credit if: (A) the Issuing Bank would have no
obligation at such time to issue such Letter of Credit in its amended
form under the terms of this Agreement; or (B) the beneficiary of any
such Letter of Credit does not accept the proposed amendment to the
Letter of Credit.
(c) Promptly after receipt of any Letter of Credit
Application, the Issuing Bank will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received
a copy of such Letter of Credit Application from the Borrower and, if
not, the Issuing Bank will provide the Administrative Agent with a copy
thereof. Upon receipt by the Issuing Bank of confirmation from the
Administrative Agent that the requested issuance or amendment is
permitted in accordance with the terms hereof, subject to the terms and
conditions hereof, the Issuing Bank shall, on the requested date, issue
a Letter of Credit for the account of the Borrower or enter into the
applicable amendment, as the case may be, in each case in accordance
with the Issuing Bank's usual and customary business practices.
(d) The Issuing Bank and the Banks agree that, while a
Letter of Credit is outstanding and prior to the Maturity Date for
Revolving Loans, at the option of the Borrower and upon the written
request of the Borrower received by the Issuing Bank (with a copy sent
by the Borrower to the Administrative Agent) at least five days (or such
shorter time as the Issuing Bank may agree in a particular instance in
its sole discretion) prior to the proposed date of notification of
renewal, the Issuing Bank shall be entitled to authorize the automatic
renewal of any Letter of Credit issued by it. Each such request for
renewal of a Letter of Credit shall be made by facsimile, confirmed
promptly in an original writing, in the form of a Letter of Credit
Amendment Application, and shall specify in form and detail satisfactory
to the Issuing Bank: (i) the Letter of Credit to be renewed; (ii) the
proposed date of notification of renewal of the Letter of Credit (which
shall be a Business Day); (iii) the revised expiry date of the Letter of
Credit; and (iv) such other matters as the Issuing Bank may reasonably
require. The Issuing Bank shall be under no obligation to renew any
Letter of Credit if the Issuing Bank would have no obligation at such
time to issue or amend such Letter of Credit in its renewed form under
the terms of this Agreement. If any outstanding Letter of Credit shall
provide that it shall be automatically renewed unless the beneficiary
thereof receives notice from the Issuing Bank that such Letter of Credit
shall not be renewed, and if at the time of renewal the Issuing Bank
would be entitled to authorize the automatic renewal of such Letter of
Credit in accordance with this Section 3.02(d) upon the request of the
Borrower, the Issuing Bank shall not have received any Letter of Credit
Amendment Application from the Borrower with respect to such renewal or
other written direction by the Borrower with respect thereto, the
Issuing Bank shall nonetheless be permitted to allow such Letter of
Credit to be renewed, and the Borrower and the Banks hereby authorize
such renewal, and, accordingly, the Issuing Bank shall be deemed to have
received a Letter of Credit Amendment Application from the Borrower
requesting such renewal.
66
(e) This Agreement shall control in the event of any
conflict with any Letter of Credit Related Document (other than any
Letter of Credit, the provisions of which shall control in any event).
(f) The Issuing Bank will also deliver to the Administrative
Agent, concurrently or promptly following its delivery of a Letter of
Credit, or amendment to or renewal of a Letter of Credit, to an advising
bank or a beneficiary, a true and complete copy of each such Letter of
Credit or amendment to or renewal of a Letter of Credit.
3.03 Participations, Drawings and Reimbursements.
(a) Immediately upon the issuance of each Letter of Credit,
each Bank with a Revolving Commitment shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Issuing
Bank a participation in such Letter of Credit and each drawing
thereunder in an amount equal to the product of (i) the Revolving
Commitment Percentage of such Bank multiplied by (ii) the maximum amount
available to be drawn under such Letter of Credit and the amount of such
drawing, respectively.
(b) In the event of any request for a drawing under a Letter
of Credit by the beneficiary or transferee thereof, the Issuing Bank
will promptly notify the Borrower. The Borrower shall reimburse the
Issuing Bank on the same date that any amount is paid by the Issuing
Bank under any Letter of Credit (each such date, a "Disbursement Date"),
in an amount equal to the amount so paid by the Issuing Bank, provided
that if such drawing occurs after 11:00 A.M. (Dallas, Texas time) the
Disbursement Date shall be deemed to be the Business Day following the
date of such drawing. In the event the Borrower shall fail to reimburse
the Issuing Bank for the full amount of any drawing under any Letter of
Credit by 11:00 A.M. (Dallas, Texas time) on the Disbursement Date, the
Issuing Bank will promptly notify the Administrative Agent and the
Administrative Agent will promptly notify each Bank thereof, and the
Borrower shall be deemed to have requested that Revolving Loans
consisting of Base Rate Revolving Loans be made by the Banks with
Revolving Commitments (and hereby irrevocably consents to such deemed
request) pursuant to Section 2.01(b) to be disbursed on the Disbursement
Date under such Letter of Credit, subject to the amount of the Aggregate
Available Revolving Commitment and subject to the conditions set forth
in Section 5.03. Any notice given by the Issuing Bank or the
Administrative Agent pursuant to this Section 3.03(b) may be oral if
immediately confirmed in writing (including by facsimile); provided,
however, that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.
(c) Each Bank (including the Bank acting as Issuing Bank)
which has a Revolving Commitment shall upon receipt of any notice
pursuant to Section 3.03(b) make available to the Administrative Agent
for the account of the Issuing Bank an amount in Dollars and in
immediately available funds equal to its Revolving Commitment Percentage
of the amount of the drawing, whereupon each participating Bank with
Revolving Commitments shall (subject to Section 3.03(d)) each be deemed
to have made a Revolving Loan consisting of a Base Rate Revolving Loan
to the Borrower in that amount. If any Bank so notified shall fail to
make available to the Administrative
67
Agent for the account of the Issuing Bank the amount of such Bank's
Revolving Commitment Percentage of the amount of the drawing by no later
than 1:00 P.M. (Dallas, Texas time) on the Disbursement Date, then
interest shall accrue on such Bank's obligation to make such payment,
from the Disbursement Date to the date such Bank makes such payment, at
a rate per annum equal to (i) the Federal Funds Rate in effect from time
to time during the period commencing on the later of the Disbursement
Date and the date such Bank receives notice of the Disbursement Date
prior to 1:00 P.M. (Dallas, Texas time) on such date and ending on the
date three Business Days thereafter and (ii) thereafter at the Base Rate
as in effect from time to time. The Administrative Agent will promptly
give notice of the occurrence of a Disbursement Date, but failure of the
Administrative Agent to give any such notice on a Disbursement Date or
in sufficient time to enable any Bank to effect such payment on such
date shall not relieve such Bank from its obligations under this Section
3.03. A certificate of the Issuing Bank to any Bank (through the
Administrative Agent) with respect to any amounts owing under this
clause (c) shall be conclusive absent manifest error.
(d) With respect to any unreimbursed drawing which is not
converted into Revolving Loans consisting of Base Rate Revolving Loans
to the Borrower in whole or in part because the Aggregate Available
Revolving Commitment is less than such unreimbursed drawing or because
of the Borrower's failure to satisfy the conditions set forth in Section
5.03, the Borrower shall be deemed to have incurred from the Issuing
Bank a Letter of Credit Borrowing in the amount of such drawing, which
Letter of Credit Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at a rate per annum equal to the
Base Rate plus the Applicable Margin for Base Rate Loans plus, in the
case of any Letter of Credit Borrowing outstanding after the
Disbursement Date, 2% per annum, and each Bank's payment to the Issuing
Bank pursuant to Section 3.03(c) shall be deemed payment in respect of
its participation in such Letter of Credit Borrowing.
(e) The obligation of each Bank with a Revolving Commitment
to make Revolving Loans or fund its participation in any Letter of
Credit Borrowing, as contemplated by this Section 3.03, as a result of a
drawing under a Letter of Credit shall be absolute and unconditional and
without recourse to the Issuing Bank and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment,
defense or other right which such Bank may have against the Issuing
Bank, the Borrower or any other Person for any reason whatsoever; (ii)
the occurrence or continuance of a Default, an Event of Default or a
Material Adverse Effect; or (iii) any other occurrence, event or
condition, whether or not similar to any of the foregoing. No such
making of a Letter of Credit Borrowing shall relieve or otherwise impair
the obligation of the Borrower to reimburse the Issuing Bank for the
amount of any payment made by the Issuing Bank under any Letter of
Credit, together with interest as provided herein.
3.04 Repayment of Participations.
(a) Upon (and only upon) receipt by the Administrative Agent
for the account of the Issuing Bank of funds from the Borrower (i) in
reimbursement of any payment made by the Issuing Bank under the Letter
of Credit with respect to which any Bank has
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paid the Administrative Agent for the account of the Issuing Bank for
such Bank's participation in the Letter of Credit pursuant to Section
3.03, or (ii) in payment of interest on amounts described in clause (i),
the Administrative Agent will pay to each Bank, in the same funds as
those received by the Administrative Agent for the account of the
Issuing Bank, the amount of such Bank's Revolving Commitment Percentage
of such funds, and the Issuing Bank shall receive the amount of the
Revolving Commitment Percentage of such funds of any Bank that did not
so pay the Administrative Agent for the account of the Issuing Bank.
(b) If the Administrative Agent or the Issuing Bank is
required at any time to return to the Borrower, or to a trustee,
receiver, liquidator, custodian, or any similar official in any
Insolvency Proceeding, any portion of the payments made by the Borrower
to the Administrative Agent for the account of the Issuing Bank pursuant
to Section 3.04(a) in reimbursement of a payment made under the Letter
of Credit or interest or fee thereon, each Bank shall, on demand of the
Administrative Agent, forthwith return to the Administrative Agent or
the Issuing Bank the amount of its Revolving Commitment Percentage of
any amounts so returned by the Administrative Agent or the Issuing Bank
plus interest thereon from the date such demand is made to the date such
amounts are returned by such Bank to the Administrative Agent or the
Issuing Bank, at a rate per annum equal to the Federal Funds Rate in
effect from time to time.
3.05 Role of the Issuing Bank.
(a) Each Bank and the Borrower agree that, in paying any
drawing under a Letter of Credit, the Issuing Bank shall not have any
responsibility to obtain any document (other than any sight draft and
certificates expressly required by the Letter of Credit) or to ascertain
or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document.
(b) The Issuing Bank, any Agent-Related Person and its
correspondents, participants and assignees shall not be liable to any
Bank for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Banks or the Majority Banks; (ii)
any action taken or omitted in the absence of gross negligence or
willful misconduct; or (iii) the due execution, effectiveness, validity
or enforceability of any Letter of Credit Related Document.
(c) The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Borrower's pursuing such rights
and remedies as it may have against the beneficiary or transferee at law
or under any other agreement. The Issuing Bank, any Agent-Related Person
and its correspondents, participants and assignees shall not be liable
or responsible for any of the matters described in clauses (a) through
(g) of Section 3.06; provided, however that anything in such clauses to
the contrary notwithstanding, the Borrower may have a claim against the
Issuing Bank, and the Issuing Bank may be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the
Borrower proves was caused by the Issuing
69
Bank's willful misconduct or gross negligence or the Issuing Bank's
willful failure to pay under any Letter of Credit after the presentation
to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing: (i) the Issuing Bank
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) the Issuing Bank shall not be
responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter
of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any
reason.
3.06 Obligations Absolute. The obligations of the Borrower under this
Agreement and any Letter of Credit Related Document to reimburse the Issuing
Bank for a drawing under a Letter of Credit, and to repay any Letter of Credit
Borrowing and any drawing under a Letter of Credit converted into Revolving
Loans, shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement and each such other Letter of Credit
Related Document under all circumstances, including the following: (a) any lack
of validity or enforceability of this Agreement or any Letter of Credit Related
Document; (b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Borrower in respect of any
Letter of Credit or any other amendment or waiver of or any consent to departure
from all or any of the Letter of Credit Related Documents; (c) the existence of
any claim, set-off, defense or other right that any Credit Party may have at any
time against any beneficiary or any transferee of any Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be acting), the
Issuing Bank, any other Bank or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by the Letter of Credit
Related Documents or any unrelated transaction; (d) any draft, demand,
certificate or other document presented under any Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit; (e) any payment by the Issuing Bank under any Letter
of Credit against presentation of a draft or certificate that does not strictly
comply with the terms of any Letter of Credit or any payment made by the Issuing
Bank under any Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of any Letter of Credit, including any arising in connection
with any Insolvency Proceeding; (f) any exchange, release or non-perfection of
any collateral, or any release or amendment or waiver of or consent to departure
from any other guaranty, for all or any of the obligations of the Borrower in
respect of any Letter of Credit; or (g) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, any Credit Party. The Borrower shall promptly examine a copy of
each Letter of Credit and each amendment thereto that is delivered to it and, in
the event of any claim of noncompliance with the Borrower's instructions or
other irregularity, the Borrower will immediately notify the Issuing Bank. The
Borrower shall be conclusively deemed to have waived any such claim against the
Issuing Bank and its correspondents unless such notice is given as aforesaid.
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3.07 Cash Collateral Pledge. Upon (a) the request of the
Administrative Agent, (i) if the Issuing Bank has honored any full or partial
drawing request on any Letter of Credit and such drawing has resulted in a
Letter of Credit Borrowing hereunder, or (ii) if, as of the Maturity Date for
Revolving Loans, any Letters of Credit may for any reason remain outstanding and
partially or wholly undrawn, or (b) the occurrence of a Default or Event of
Default or (c) the occurrence of the circumstances described in Section
2.07(a)(ii) requiring the Borrower to Cash Collateralize Letters of Credit, then
the Borrower shall immediately Cash Collateralize the Letter of Credit
Obligations in an amount equal to the Letter of Credit Obligations (or in the
case of clause (c) above, the excess amount required pursuant to Section
2.07(a)(ii)) and such cash will be held as security for all Obligations of the
Borrower to the Banks hereunder in a cash collateral account to be established
by the Administrative Agent, and during the existence of an Event of Default,
the Administrative Agent may, upon the request of the Majority Banks, apply such
amounts so held to the payment of such outstanding Obligations; provided that on
a date upon which no Default or Event of Default exists and no Letter of Credit
Obligations remain outstanding, the Administrative Agent, at the request and
expense of the Borrower, will duly release the cash held hereunder as security
in any cash collateral account and shall assign, transfer and deliver to the
Borrower (without recourse and without any representation or warranty) such cash
as is then being released and has not theretofore been released pursuant to this
Agreement.
3.08 Letter of Credit Fees.
(a) The Borrower shall pay to the Administrative Agent (for
the account of each Bank with a Revolving Commitment) a letter of credit
fee with respect to each Letter of Credit issued and outstanding
hereunder equal to the Applicable Margin for Eurodollar Loans (as in
effect from time to time during the period of calculation thereof),
computed on the average daily maximum amount available to be drawn on
each Letter of Credit outstanding for the relevant period. Such Letter
of Credit fee shall be due and payable in arrears on each Interest
Payment Date for Base Rate Loans.
(b) The Borrower shall pay to the Issuing Bank a letter of
credit fronting fee for each Letter of Credit issued by the Issuing Bank
equal to 0.25% per annum of the entire amount available to be drawn from
time to time under each such issued Letter of Credit. Such Letter of
Credit fronting fee shall be due and payable in arrears on each Interest
Payment Date for Base Rate Loans.
(c) The Borrower shall pay to the Issuing Bank from time to
time on demand the normal issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the Issuing
Bank relating to letters of credit as from time to time in effect.
3.09 Applicability of ISP98 and UCP. Unless otherwise expressly
agreed by the Issuing Bank and the Borrower, when a Letter of Credit is issued
(a) the rules of the "International Standby Practices 1998" published by the
Institute of International Banking Law & Practice (or such later version thereof
as may be in effect at the time of issuance) shall apply to each standby Letter
of Credit, and (b) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce
71
(the "ICC") at the time of issuance (including the ICC decision published by the
Commission on Banking Technique and Practice on April 6, 1998 regarding the
European single currency (euro)) shall apply to each commercial Letter of
Credit.
3.10 Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
ARTICLE IV.
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
(a) Subject to Section 4.01(h), any and all payments by a
Credit Party to any Bank or the Administrative Agent under this
Agreement or any other Loan Document shall be made free and clear of,
and without deduction or withholding for or on account of, any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in
the case of each Bank and the Administrative Agent, as the case may be,
such taxes (including income taxes or franchise taxes) as are imposed on
or measured by such Person's net income by the jurisdiction under the
laws of which such Person is organized or has its principal office or
maintains a Lending Office or any political subdivision thereof (all
such nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes").
(b) In addition, the Borrower shall pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or
from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Loan Document (hereinafter
referred to as "Other Taxes").
(c) Subject to Section 4.01(h), the Borrower shall indemnify
and hold harmless each Bank, each Agent and Agent-Related Person for the
full amount of Taxes or Other Taxes (including any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under Section 4.01(d))
paid by such Bank or the Administrative Agent and any liability
(including penalties, interest, additions to tax and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted.
(d) If the Borrower shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Bank or the Administrative Agent, then, subject to
Section 4.01(h):
(i) the sum payable shall be increased as necessary
so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 4.01(d)) such Bank or the Administrative Agent, as the
case may be, receives an amount equal to the sum it would have
received had no such deductions or withholdings been made;
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(ii) the Borrower shall make such deductions; and
(iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in
accordance with applicable law.
(e) Within 30 days after the date of any payment by the
Borrower of Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 11.02, the
original or a certified copy of a receipt evidencing payment thereof, or
other evidence of payment satisfactory to the Administrative Agent.
(f) Each Bank which is organized under the laws of a
jurisdiction outside the United States agrees that:
(i) it shall, no later than the Effective Date (or,
in the case of a Bank which becomes a party hereto pursuant to
Section 11.07 after the Effective Date, the date upon which such
Bank becomes a party hereto) deliver to the Borrower through the
Administrative Agent two accurate and complete signed originals
of Internal Revenue Service Form W-8BEN or any successor thereto
("Form W-8BEN"), or two accurate and complete signed originals
of Internal Revenue Service Form W-8ECI or any successor thereto
("Form W-8ECI"), as appropriate, in each case indicating that
such Bank is on the date of delivery thereof entitled to receive
all payments under this Agreement free from withholding of
United States Federal income tax;
(ii) if at any time such Bank makes any changes,
including a change of a Lending Office or its principal office,
place of incorporation or fiscal residence, necessitating a new
Form W-8BEN or Form W-8ECI, it shall, to the extent it is
legally entitled to do so, promptly deliver to the Borrower
through the Administrative Agent in replacement for, or in
addition to, the forms previously delivered by it hereunder, two
accurate and complete signed originals of Form W-8BEN or Form
W-8ECI, as appropriate, in each case indicating that such Bank
is on the date of delivery thereof entitled to receive all
payments under this Agreement free from withholding of United
States Federal income tax;
(iii) it shall, to the extent it is legally entitled
to do so, before or promptly after the occurrence of any event,
including the passing of time but excluding any event mentioned
in Section 4.01(f)(ii), requiring a change in or renewal of the
most recent Form W-8BEN or Form W-8ECI previously delivered by
such Bank, deliver to the Borrower through the Administrative
Agent two accurate and complete original signed copies of Form
W-8BEN or Form W-8ECI in replacement for the forms previously
delivered by such Bank indicating that such Bank continues to be
entitled to receive all payments under this Agreement free from
any withholding of any United States Federal income tax;
(iv) it shall, to the extent it is legally entitled
to do so, promptly upon the Borrower's or the Administrative
Agent's reasonable request to that effect, deliver to the
Borrower or the Administrative Agent (as the case may be) such
73
other forms or similar documentation as may be required from
time to time by any applicable law, treaty, rule or regulation
in order to establish such Bank's complete exemption from
withholding on all payments under this Agreement;
(v) if such Bank claims or is entitled to claim
exemption from withholding tax under a United States tax treaty
by providing a Form W-8ECI and such Bank sells or grants a
participation of all or part of its rights under this Agreement,
such Bank shall notify the Administrative Agent of the
percentage amount in which it is no longer the beneficial owner
under this Agreement. To the extent of this percentage amount,
the Administrative Agent shall treat such Bank's Form W-8ECI as
no longer in compliance with this Section 4.01(f). In the event
a Bank claiming exemption from United States withholding tax by
filing Form W-8BEN with the Administrative Agent sells or grants
a participation in its rights under this Agreement, such Bank
agrees to undertake sole responsibility for complying with the
withholding tax requirements imposed by Sections 1441 and 1442
of the Code; and
(vi) without limiting or restricting any Bank's right
to increased amounts under Section 4.01(d) from the Borrower
upon satisfaction of such Bank's obligations under the
provisions of this Section 4.01(f), if such Bank is entitled to
a reduction in the applicable withholding tax, the
Administrative Agent may (but shall not be obligated to)
withhold from any interest to such Bank an amount equivalent to
the applicable withholding tax after taking into account such
reduction. If the forms or other administrative documentation
required by Section 4.01(f)(i) are not delivered to the
Administrative Agent, then the Administrative Agent shall
withhold from any interest payment to a Bank not providing such
forms or other documentation, an amount equivalent to the
applicable withholding tax and in addition, the Administrative
Agent shall also withhold against periodic payments other than
interest payments to the extent United States withholding tax is
not eliminated by obtaining Form W-8BEN or Form W-8ECI. The
Borrower shall indemnify and hold harmless the Administrative
Agent and each of its officers, directors, employees, counsel,
agents and attorney-in-fact, on an after tax basis, from and
against all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses
or disbursements (including Attorney Costs) of any kind
whatsoever incurred as a result of or in connection with the
Administrative Agent's failure to withhold as provided pursuant
to the preceding sentence, unless such failure constitutes gross
negligence or willful misconduct of the Administrative Agent
itself as the same is determined by a final judgment of a court
of competent jurisdiction and the obligations in this sentence
shall survive payment of all other Obligations.
(g) The Borrower will not be required to pay any additional
amounts in respect of Taxes imposed by the United States Federal
government pursuant to Sections 4.01(a) or 4.01(d) to any Bank:
74
(i) if and to the extent the obligation to pay such
additional amounts would not have arisen but for a failure by
such Bank to comply with its obligations under Section 4.01(f)
in respect of its Lending Office;
(ii) if such Bank shall have delivered to the
Borrower a Form W-8BEN in respect of its Lending Office pursuant
to Section 4.01(f)(i)-(iii) or such other forms or similar
documentation pursuant to Section 4.01(f)(iv), to the extent
such Bank shall not at any time be entitled to exemption from
all withholding of United States Federal income tax in respect
of payments by the Borrower hereunder for the account of such
Lending Office for any reason other than a change in United
States law or regulations or in the official interpretation of
such law or regulations by any Governmental Authority charged
with the interpretation or administration thereof (whether or
not having the force of law) after the date of delivery of such
Form W-8BEN or such other forms or similar documentation; or
(iii) if such Bank shall have delivered to the
Borrower a Form W-8ECI in respect of its Lending Office pursuant
to Section 4.01(f)(i)-(iii) or such other forms or similar
documentation pursuant to Section 4.01(f)(iv), to the extent
such Bank shall not at any time be entitled to exemption from
all deductions or withholding of United States Federal income
tax in respect of payments by the Borrower hereunder for the
account of such Lending Office for any reason other than a
change in United States law or regulations or any applicable tax
treaty or regulations or in the official interpretation of any
such law, treaty or regulations by any Governmental Authority
charged with the interpretation or administration thereof
(whether or not having the force of law) after the date of
delivery of such Form W-8ECI or such other forms or similar
documentation.
(h) Each Bank agrees that it shall, at any time upon
reasonable advance request in writing by the Borrower or the
Administrative Agent, promptly deliver such certification or other
documentation as may be required under the law or regulation in any
applicable jurisdiction and which such Bank is entitled to submit to
avoid or reduce withholding taxes on amounts to be paid by the Borrower
and received by such Bank pursuant to this Agreement or any other Loan
Document.
(i) The Borrower shall indemnify each Bank, each Agent and
each Agent-Related Person, to the extent required by this Section 4.01,
within 30 days after receipt of written request from such Bank or the
Administrative Agent thereof accompanied by a written statement
describing in reasonable detail the Taxes or Other Taxes that are the
subject of the basis for such indemnity and the computation of the
amount payable.
(j) If a Bank or the Administrative Agent shall become aware
that it is entitled to claim a refund of any withholding Taxes or Other
Taxes paid by the Borrower under this Section 4.01 from the taxing
authority imposing such Taxes or Other Taxes, such Bank or the
Administrative Agent, as the case may be, shall, at the expense of the
Borrower, use reasonable efforts to obtain such refund and upon receipt
thereof, shall promptly pay to the Borrower the amount so received.
75
(k) If the Borrower is required to pay additional amounts to
any Bank or the Administrative Agent pursuant to Section 4.01(d), then
such Bank shall, upon the Borrower's request, use its reasonable best
efforts (consistent with policy considerations of such Bank) to change
the jurisdiction of its Lending Office so as to reduce or eliminate any
such additional payment which may thereafter accrue if such change in
the reasonable judgment of such Bank is not otherwise disadvantageous to
such Bank.
(l) Each Bank agrees that it will (i) take all reasonable
actions reasonably requested by the Borrower (consistent with policy
considerations by such Bank) to maintain all exemptions, if any,
available to it from withholding taxes (whether available by treaty or
existing administrative waiver), and (ii) to the extent reasonable,
otherwise cooperate with the Borrower to minimize any amounts payable by
the Borrower under this Section 4.01, in any case described in the
preceding clauses (i) and (ii), however, only if such action or
cooperation is not disadvantageous to such Bank in the reasonable
judgment of such Bank.
4.02 Illegality.
(a) If any Bank shall determine that (i) the introduction of
any Requirement of Law, or any change in any Requirement of Law, or in
the interpretation or administration thereof, has made it unlawful, or
(ii) any central bank or other Governmental Authority has asserted that
it is unlawful for any Bank or its Lending Office, to make a Eurodollar
Loan or to convert any Base Rate Loan to a Eurodollar Loan, then, on
notice thereof by such Bank to the Borrower through the Administrative
Agent, the obligation of such Bank to make or convert any such Loans
shall be suspended, and any such Loan to be made or continued by such
Bank shall instead be made or continued as a Base Rate Loan, until such
Bank shall have notified the Administrative Agent and the Borrower that
the circumstances giving rise to such determination no longer exist.
(b) If a Bank shall determine that it is unlawful to
maintain any Eurodollar Loan, all Eurodollar Loans of such Bank then
outstanding shall be automatically converted to Base Rate Loans, either
on the last day of the Interest Period thereof if such Bank may lawfully
continue to maintain such Eurodollar Loans to such day, or immediately,
if the Bank may not lawfully continue to maintain such Eurodollar Loans,
and the Borrower shall pay any amounts required to be paid in connection
therewith pursuant to Section 4.04.
(c) Before giving any notice to the Administrative Agent
pursuant to this Section 4.02, the affected Bank shall designate a
different Lending Office with respect to its Eurodollar Loans if such
designation will avoid the need for giving such notice or making such
demand and will not, in the judgment of such Bank, be illegal,
inconsistent with the policies of such Bank or otherwise disadvantageous
to such Bank.
4.03 Increased Costs and Reduction of Return.
(a) If any Bank or the Issuing Bank shall determine that,
due to either (i) the introduction of or any change in or in the
interpretation or administration of any law or
76
regulation (other than any law or regulation relating to taxes,
including those relating to Taxes or Other Taxes) after the Effective
Date or (ii) the compliance with any guideline or request from any
central bank or other Governmental Authority (whether or not having the
force of law) made after the Effective Date, there shall be any increase
in the cost to such Bank of agreeing to make or making, funding or
maintaining any Eurodollar Loans or participating in any Letter of
Credit Obligations, or any increase in the cost to the Issuing Bank of
agreeing to issue, issuing or maintaining any Letter of Credit or of
agreeing to make or making, funding or maintaining any unpaid drawing
under any Letter of Credit, then the Borrower shall be liable for, and
shall from time to time, upon demand therefor by such Bank or the
Issuing Bank, as the case may be (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account
of such Bank or the Issuing Bank, additional amounts as are sufficient
to compensate such Bank or the Issuing Bank for such increased costs.
(b) If any Bank or the Issuing Bank shall have determined
that (i) the introduction of any Capital Adequacy Regulation after the
Effective Date, (ii) any change in any Capital Adequacy Regulation after
the Effective Date, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or
other Governmental Authority charged with the interpretation or
administration thereof after the Effective Date, or (iv) compliance by
any Bank (or its Lending Office) or the Issuing Bank, as the case may
be, or any corporation controlling such Bank or the Issuing Bank, as the
case may be, with any Capital Adequacy Regulation adopted after the
Effective Date, affects or would affect the amount of capital required
or expected to be maintained by such Bank or the Issuing Bank or any
corporation controlling such Bank or the Issuing Bank and (taking into
consideration such Bank's, the Issuing Bank's or such corporation's
policies with respect to capital adequacy and such Bank's, the Issuing
Bank's or such corporation's desired return on capital) determines that
the amount of such capital is (or is required to be) increased as a
consequence of its Commitments, Loans, participations in Letters of
Credit, or obligations under this Agreement, then, upon demand of such
Bank or the Issuing Bank (with a copy to the Administrative Agent), the
Borrower shall be liable for and shall immediately pay to such Bank or
the Issuing Bank, from time to time as specified by such Bank or the
Issuing Bank, additional amounts sufficient to compensate such Bank or
the Issuing Bank for such increase.
4.04 Funding Losses. The Borrower shall reimburse each Bank and hold
each Bank harmless from any loss, cost or expense (other than loss of margin)
which such Bank may sustain or incur as a consequence of: (a) any failure by the
Borrower to make any payment of principal of any Eurodollar Loan (including
payments made after any acceleration thereof); (b) any failure by the Borrower
to borrow a Eurodollar Loan or continue a Eurodollar Loan when such Eurodollar
Loan is due and payable or convert a Base Rate Loan to a Eurodollar Loan after
the Borrower has given a Notice of Borrowing, or a Notice of
Conversion/Continuation as the case may be; (c) any failure by the Borrower to
make any prepayment of a Eurodollar Loan after the Borrower has given a notice
in accordance with Section 2.06; or (d) any payment or prepayment (including
pursuant to Section 2.06 or 2.07 or after acceleration thereof) of any
Eurodollar Loan for any reason whatsoever on a day which is not the last day of
the Interest Period with respect thereto; including in each case any such loss
or expense arising from the liquidation or
77
reemployment of funds obtained by it to maintain any Eurodollar Loan hereunder
or from fees payable to terminate the deposits from which such funds were
obtained.
4.05 Inability to Determine Rates. Notwithstanding anything to the
contrary contained in this Agreement, if, in relation to any proposed Eurodollar
Loan, (a) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon all parties hereto) that by reason of
circumstances affecting the interbank markets adequate and fair means do not
exist for ascertaining the Eurodollar Rate to be applicable to such Eurodollar
Loan or (b) the Administrative Agent shall have received notice from the
Majority Banks that the Eurodollar Rate determined or to be determined for any
Interest Period will not adequately and fairly reflect the cost to such Banks
(as conclusively certified by such Banks) of making or maintaining their
affected Loans during such affected Interest Period, then, the obligation of the
Banks to make, continue or maintain Eurodollar Loans or to convert Base Rate
Loans into Eurodollar Loans shall be suspended until the Administrative Agent
upon the instruction of the Majority Banks, as applicable, revokes such notice
in writing. If, notwithstanding the provisions of this Section 4.05, any Bank
has made available to the Borrower its pro rata share of any such proposed
Eurodollar Loan, then the Borrower shall immediately repay the amount so made
available to it by such Bank, together with accrued interest thereon, if any, or
shall convert such proposed Eurodollar Loan to a Base Rate Loan.
4.06 Reserves on Eurodollar Loans. The Borrower shall pay to each
Bank, if and as long as such Bank shall be required under regulations of the
Federal Reserve Board to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional costs on the unpaid principal amount of
each Eurodollar Loan equal to actual costs of such reserves allocated to such
Loan by such Bank (as determined by such Bank in good faith, which determination
shall be conclusive absent manifest error), payable on each date on which
interest is payable on such Loan, provided that the Borrower shall have received
at least 15 days' prior written notice (with a copy to the Administrative Agent)
of such additional interest from the Bank. If a Bank fails to give such notice
15 days prior to the relevant Interest Payment Date, such additional interest
shall be payable 15 days after receipt by the Borrower of such notice.
4.07 Certificates of Banks. Any Bank (including the Issuing Bank)
claiming reimbursement or compensation pursuant to this Article IV shall deliver
to the Borrower (with a copy to the Administrative Agent) a certificate setting
forth in reasonable detail the amount payable to such Person hereunder and such
certificate shall be conclusive and binding on the Borrower in the absence of
manifest error.
4.08 Change of Lending Office, Replacement Bank.
(a) Each Bank agrees that upon the occurrence of an event
giving rise to the operation of Section 4.02 or 4.03 with respect to
such Bank, it will if so requested by the Borrower, use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Lending Office for any Loans
affected by such event with the object of avoiding the consequence of
the event giving rise to the operation of such section; provided however
that such designation would not, in the sole judgment of such Bank, be
otherwise disadvantageous to such Bank. Nothing in this
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Section 4.08(a) shall affect or postpone any of the obligations of the
Borrower or the right of any Bank provided in Section 4.02 or 4.03.
(b) Notwithstanding anything to the contrary contained
herein or in any other Loan Document, (i) upon the occurrence of any
event that obligates the Borrower to pay any amount under Section 4.01
or giving rise to the operation of Section 4.02 or Section 4.03 with
respect to any Bank or (ii) as provided in Section 11.01(b) in the case
of certain refusals by a Bank to consent to certain proposed changes,
waivers, discharges or terminations with respect to this Agreement which
have been approved by the Majority Banks, the Borrower shall have the
right, if no Default or Event of Default then exists or will exist
immediately after giving effect to the respective replacement, to
replace such Bank (the "Replaced Bank") by designating another Bank or
an Eligible Assignee (such Bank or Eligible Assignee being herein called
a "Replacement Bank") to which such Replaced Bank shall assign, in
accordance with Section 11.07 and without recourse to or warranty by, or
expense to, such Replaced Bank, the rights and obligations of such
Replaced Bank hereunder (except for such rights as survive repayment of
the Loans), and, upon such assignment, such Replaced Bank shall no
longer be a party hereto or have any rights hereunder and such
Replacement Bank shall succeed to the rights and obligations of such
Replaced Bank hereunder. The Borrower shall pay to such Replaced Bank in
same day funds on the date of replacement all interest, fees and other
amounts then due and owing such Replaced Bank by the Borrower hereunder
to and including the date of replacement, including, without limitation,
costs incurred under Sections 4.01, 4.02 and/or 4.03.
4.09 Survival. The agreements and obligations of the Borrower set
forth in this Article IV shall survive the payment of all other Obligations.
ARTICLE V.
CONDITIONS PRECEDENT
5.01 Conditions to the Effective Date. The occurrence of the
Effective Date and the obligation of the Banks to make Loans and the Issuing
Bank to issue Letters of Credit on the Initial Borrowing Date are subject to the
receipt by the Administrative Agent prior to or concurrently with the occurrence
of the Effective Date and the making of Loans and the issuance of Letters of
Credit on the Initial Borrowing Date of each of the items set forth in this
Section 5.01 in form and substance reasonably satisfactory to the Administrative
Agent and the Banks and in sufficient copies for each Bank:
(a) Second Amended and Restated Credit Agreement. This
Agreement duly executed and delivered by the Parent Guarantors, the
Borrower, the Administrative Agent, the Syndication Agent, the Issuing
Bank, each of the other Banks and by each of the other parties listed on
the signature pages hereof (or, in the case of any party as to which an
executed counterpart shall not have been received, receipt by the
Administrative Agent in form satisfactory to it of a facsimile or other
written confirmation from such party of execution of a counterpart of
this Agreement by such party).
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(b) Closing Certificates. A Closing Certificate of each
Credit Party, dated the Effective Date, duly executed on such Credit
Party's behalf by a Responsible Officer and the Secretary or any
Assistant Secretary of such Credit Party, together with:
(i) original certificates of existence and good
standing, dated not more than 10 days prior to the Effective
Date, from appropriate officials of each Credit Party's
respective state of incorporation or organization and
certificates of good standing and authority to do business,
dated not more than 10 days prior to Effective Date, from
appropriate officials of any and all jurisdictions where each
Credit Party's property or business makes qualification to
transact business therein necessary and where the failure to be
so qualified could reasonably be expected to have a Material
Adverse Effect;
(ii) copies of Board Resolutions of each Credit Party
approving the Loan Documents to which such Credit Party is a
party and authorizing the transactions contemplated herein and
therein, duly adopted at a meeting of, or by the unanimous
written consent of, the Board of Directors of such Credit Party;
and
(iii) a copy of all Charter Documents of each Credit
Party. The articles/certificate of incorporation (or equivalent
limited liability company document) of each Credit Party shall
be accompanied by an original certificate issued by the
Secretary of the State of incorporation or organization of such
Credit Party, dated not more than 10 days prior to the Effective
Date, certifying that such copy is correct and complete.
(c) Cancellation of Liens. At the reasonable request of the
Administrative Agent, evidence that all Liens other than Permitted Liens
have been canceled and released, including duly executed releases and
UCC-3 financing statements in recordable form and otherwise in form and
substance satisfactory to the Administrative Agent.
(d) Global Assignment and Assumptions. The Global Assignment
and Assumptions duly executed and delivered by each of the parties
thereto.
(e) Legal Opinions.
(i) An opinion of Xxxxxxxx & Xxxxx, counsel to the
Credit Parties, addressed to the Administrative Agent and the
Banks, which opinion shall be in the form previously received
with such changes as are reasonably requested by either Agent;
and
(ii) an opinion of FCC counsel to the Credit Parties
addressed to the Administrative Agent and the Banks, which
opinion shall be in the form previously received with such
changes as reasonably requested by either Agent.
(f) Certificates. A certificate of each Credit Party
executed on such Credit Party's behalf by a Responsible Officer of such
Credit Party, dated as of the Effective Date, stating that:
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(i) the representations and warranties of the Parent
Guarantors and the Borrower contained in Article VI and the
representations and warranties of the other Credit Parties set
forth in the Loan Documents to which they are a party are true
and correct on and as of such date, as though made on and as of
such date (except to the extent such representations and
warranties expressly relate to an earlier date, in which case
such representations and warranties shall be true and correct as
of such earlier date);
(ii) no Default or Event of Default exists both
before and after giving effect to any Borrowing or the issuance
of any Letter of Credit on the Initial Borrowing Date; and
(iii) after giving effect to the initial Credit Event
under this Agreement, no Nexstar Entity will have any
Indebtedness outstanding except as shall be permitted under
Section 8.05.
(g) Financial Statements.
(i) Consolidated audited financial statements of the
Nexstar Entities for Fiscal Years 1999, 2000 and 2001;
(ii) a combined balance sheet for the LIN Stations
and income statement for each LIN Station for each of its fiscal
years ending during 1999, 2000 and 2001;
(iii) a balance sheet and income statement for each
Xxxxxx Station for each of its fiscal years ending during 2000,
2001 and 2002;
(iv) unaudited quarterly financial statements for the
Nexstar Entities for the last quarter for which unaudited
quarterly statements were required to be delivered pursuant to
the Existing Nexstar Credit Agreement;
(v) monthly financial statements for the Nexstar
Entities for each month ending after the quarter described in
clause (iv) above and for which monthly statements were required
to be delivered pursuant to the Existing Nexstar Credit
Agreement; and
(vi) a consolidated balance sheet and income
statement from each of the Nexstar Entities as of December 31,
2002, calculated on a Pro Forma Basis giving effect to the
initial borrowings to be made under this Agreement, the
refinancing of the loans under the Existing Nexstar Credit
Agreement, the Acquisition of the Acquired Properties and the
payment or accrual of all fees and expenses payable in
connection with the foregoing.
(h) Solvency Certificate. The Solvency Certificate.
(i) Minimum Pro Forma Consolidated Operating Cash Flow. A
certificate of the Borrower, duly executed on the Borrower's behalf by a
Responsible Officer of the
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Borrower, certifying to the Banks that the Nexstar Entities and the
Mission Entities shall have a combined pro forma Consolidated Operating
Cash Flow for the Measurement Period ended December 31, 2002, giving
effect to the Acquisition of the Acquired Properties as of the first day
of such Measurement Period and including any cost savings relating to
the Acquired Properties that are disclosed to the Banks and reasonably
acceptable to the Joint Lead Arrangers, of not less than $60,000,000.
(j) Information Certificate. The Information Certificate,
duly executed on the Borrower's behalf by a Responsible Officer of the
Borrower.
(k) Confirmation Agreements. Confirmation Agreements, duly
executed by the Borrower, substantially in the form of Exhibits E-1, E-2
and E-3.
(l) Other Documents. Such other approvals, opinions or
documents, including financing statements, as either Agent or any Bank
may reasonably request.
5.02 Additional Conditions to the Effective Date. The occurrence of
the Effective Date and the obligation of the Banks to make Loans and the Issuing
Bank to issue Letters of Credit on the Initial Borrowing Date are subject to the
satisfaction, prior to or concurrently with the occurrence of the Effective Date
and the making of Loans and the issuance of Letters of Credit on the Initial
Borrowing Date of the other conditions precedent set forth below, each in a
manner reasonably satisfactory to the Administrative Agent and the Banks:
(a) Mission Credit Agreement. On or prior to the Effective
Date, the Mission Borrower shall have entered into the Mission Credit
Agreement and related loan documents, and shall have utilized the
proceeds from same to incur up to $85,000,000 in Indebtedness to
refinance the Indebtedness outstanding under the Existing Mission Credit
Agreement (as defined in the Mission Credit Agreement), all on a basis
which is satisfactory to the Administrative Agent and the Banks.
(b) No Restraints. There shall exist no judgment, order,
injunction or other restraint which would prevent or delay the
consummation of, or impose materially adverse conditions upon this
Agreement and the other Loan Documents, the Mission Credit Agreement and
related documents or any of the transactions contemplated in connection
with any of the foregoing.
(c) Margin Regulations. All Loans made under this Agreement
shall be in full compliance with all applicable Requirements of Law,
including, without limitation, Regulations T, U and X of the Federal
Reserve Board.
(d) Material Adverse Effect. Since December 31, 2002, there
shall have occurred no event or circumstance which has had or could
reasonably be expected to have a Material Adverse Effect.
(e) Fees. The Administrative Agent, the Issuing Bank and the
other Banks shall have received (i) all fees and expenses that are due
and payable on or before the Effective Date pursuant to this Agreement
and any other Loan Document and (ii) an amount equal to the estimated
fees and expenses of Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
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incurred in connection with the preparation, examination, negotiation,
execution and delivery of this Agreement, the other Loan Documents and
the consummation of the transactions contemplated herein.
(f) Repayment, Repurchase, Cancellation and/or Modification
of Certain Indebtedness. (i) All Indebtedness and all other obligations
outstanding with respect to the Existing Nexstar Credit Agreement and
all other Indebtedness not permitted by Section 8.05 shall have been
paid or otherwise canceled or discharged in full, and all Liens created
in connection therewith shall have been either terminated or assigned to
the Administrative Agent for the benefit of the Banks, and (ii) the
Administrative Agent shall have received satisfactory evidence that all
of the foregoing has occurred.
(g) Governmental and Third Party Approvals. All material
Authorizations and third-party approvals (including, without limitation,
all FCC Licenses and consents) necessary or appropriate in connection
with this Agreement or the other Loan Documents, the Mission Loan
Documents and the other transactions contemplated herein (other than
approval by the FCC and other Persons of the acquisitions of the
Acquired Properties, which will be obtained prior to the acquisition
thereof) and in the other Loan Documents shall have been obtained and
shall be in full force and effect, and all applicable waiting periods
shall have expired without any action being taken or threatened by any
competent authority which would restrain, prevent or otherwise impose
materially adverse conditions on this Agreement, the other Loan
Documents, the Mission Loan Documents, or any of the other transactions
contemplated herein or therein.
(h) All Proceedings Satisfactory. All corporate and other
proceedings taken prior to or on the Effective Date in connection with
this Agreement, the other Loan Documents and the transactions
contemplated herein and all documents and evidences incident thereto
shall be satisfactory in form and substance to the Banks, and the Banks
shall have received such copies thereof and such other materials
(certified, if requested) as they may have reasonably requested in
connection therewith.
(i) Rating of Senior Credit Facilities. The Administrative
Agent shall have received evidence that the senior secured debt rating
for debt facilities evidenced by this Agreement and the Mission Credit
Agreement is not less than B2 by Xxxxx'x and B by S&P, in each case with
a stable or positive outlook.
5.03 Conditions to All Borrowings and the Issuance of Any Letters of
Credit. The obligation of the Banks to make or convert any Loans agreed to be
made by them hereunder and the obligation of the Issuing Bank to issue, renew or
amend any Letter of Credit (including any initial Loans to be made or Letters of
Credit to be issued on the Initial Borrowing Date) are subject to the
satisfaction of the following conditions precedent on the relevant Borrowing
Date or date of issuance of a Letter of Credit, as applicable.
(a) Notice of Borrowing; Letter of Credit Application. The
Administrative Agent (and the Issuing Bank, in the case of any issuance
of Letter a Credit) shall have received, as applicable (i) a Notice of
Borrowing in the case of Loans, as required under Section 2.03(a) or
Section 2.03(b), as applicable, or (ii) in the case of any issuance of
any
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Letter of Credit, a Letter of Credit Application, as required under
Section 3.02 and/or (iii) a Notice of Conversion/Continuation, as
required under Section 2.04.
(b) Representations and Warranties. Each of the
representations and warranties made by the Credit Parties in or pursuant
to the Loan Documents shall be true and correct in all material respects
on and as of such Borrowing Date or date of issuance of a Letter of
Credit as if made on and as of such date, both before and after giving
effect to the Credit Event requested to be made on such date and the
proposed use of the proceeds thereof (except to the extent such
representations and warranties expressly refer to an earlier date, in
which case they shall be true and correct as of such earlier date).
(c) No Default. No Default or Event of Default shall exist
both before and after giving effect to the Credit Event requested to be
made on such date and the proposed use of proceeds thereof.
(d) No Material Adverse Effect. Since the Effective Date, no
events shall have occurred which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
Each Notice of Borrowing or Letter of Credit Application submitted by
the Borrower hereunder shall be deemed to constitute a representation and
warranty by the Borrower hereunder, as of the date of each such Notice or
Application and as of the date of the related Borrowing or issuance of a Letter
of Credit, that the conditions set forth in Sections 5.03(b), (c) and (d) are
satisfied.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent, the Syndication Agent and the Banks
to enter into this Agreement and to make the Loans and to issue Letters of
Credit, each Parent Guarantor and the Borrower both as to itself and as to its
respective Subsidiaries hereby makes the following representations and
warranties to the Administrative Agent, the Syndication Agent and each Bank:
6.01 Existence; Compliance with Law. Each Nexstar Entity (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has the corporate, limited liability
company or partnership power and authority, legal right and all governmental
licenses, authorizations, consents and approvals to own (or hold under lease)
and operate its property or assets and conduct the business in which it is
currently engaged except, with respect only to such legal right and governmental
licenses, authorizations, consents and approvals, where the failure to possess
any such legal right or governmental license, authorization, consent or
approvals could not reasonably be expected to have a Material Adverse Effect;
(c) has the corporate, limited liability company or partnership power and
authority, legal right and all governmental licenses, authorizations, consents
and approvals to execute, deliver, and perform its obligations under the Loan
Documents to which it is a party; (d) is duly qualified to do business as a
foreign entity, and licensed and in good standing, under the laws of each
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jurisdiction where its ownership, lease or operation of property or the nature
or conduct of its business requires such qualification or license, except where
the failure so to qualify could not reasonably be expected to have a Material
Adverse Effect; and (e) is in compliance, in all material respects, with all
Requirements of Law.
6.02 Corporate, Limited Liability Company or Partnership
Authorization; No Contravention. The execution, delivery and performance by each
Nexstar Entity of this Agreement and any other Loan Document to which such
Nexstar Entity is a party have been duly authorized by all necessary corporate,
limited liability company or partnership action, as the case may be, of such
Nexstar Entity and do not and will not: (a) contravene any terms of the Charter
Documents of such Nexstar Entity; (b) conflict with or result in any breach or
contravention of, constitute (alone or with notice or lapse of time or both) a
default under or give rise to any right to accelerate any material Contractual
Obligation of any Nexstar Entity and will not result in, or require, the
creation of any Lien on any of their respective properties or any revenues,
income or profits therefrom, whether now owned or hereafter acquired pursuant to
any Requirement of Law or Contractual Obligation (other than pursuant to the
Security Documents) to which such Nexstar Entity is a party or any order,
injunction, writ or decree of any Governmental Authority to which such Nexstar
Entity or its property is subject; or (c) violate any Requirement of Law.
6.03 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or in respect of, or notice to, or filing
with (or approvals required under state blue sky securities laws) any
Governmental Authority or any other Person is necessary or required in
connection with the Borrowings to be made hereunder or with the execution,
delivery or performance by, or enforcement against, any Nexstar Entity of this
Agreement or any other Loan Document, except that (i) certain of the Loan
Documents may have to be filed with the FCC after the Effective Date and (ii)
the prior approval of the FCC may be required for the Banks to exercise certain
of their rights with respect to the Stations.
6.04 Binding Effect. This Agreement and each other Loan Document to
which any Nexstar Entity is a party constitutes the legal, valid and binding
obligation of such Nexstar Entity to the extent such Nexstar Entity is a party
thereto, enforceable against such Nexstar Entity in accordance with its terms,
except as 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.
6.05 Litigation. There are no actions, suits, proceedings, claims or
disputes pending, or to the best knowledge of each Nexstar Entity, threatened at
law, in equity, in arbitration or before any Governmental Authority, against any
Nexstar Entity or any of their respective properties or assets which: (a)
purport to affect or pertain to this Agreement or any other Loan Document, or
any of the transactions contemplated hereby or thereby; or (b) as to which there
is a reasonable possibility of an adverse determination, that if adversely
determined, could, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. No injunction, writ, temporary restraining order
or any order of any nature has been issued by any court or other Governmental
Authority purporting to enjoin or restrain the execution, delivery or
performance of this Agreement or any other Loan Document, or directing that any
transaction provided for herein or therein not be consummated as herein or
therein provided.
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6.06 No Default. No Default or Event of Default exists or will result
from the incurring of any Obligations by any Nexstar Entity. No Nexstar Entity
is in default under or with respect to any Contractual Obligation in any respect
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
6.07 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state
law. Each Plan which is intended to qualify under Section 401(a) of the
Code (i) has received a favorable determination letter from the Internal
Revenue Service or (ii) has been recently established and has not
received such a determination letter and such Plan complies with the
requirements of Section 401(a) of the Code; and to the best knowledge of
each Nexstar Entity nothing has occurred which would cause the loss of
such qualification or the revocation of such determination letter.
(b) There are no pending or, to the best knowledge of each
Nexstar Entity, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has resulted, or
could reasonably be expected to result, in a Material Adverse Effect.
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted, or
could reasonably be expected to result, in a Material Adverse Effect.
(c) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Pension Plan or Multiemployer Plan.
(d) As of the date hereof, no Pension Plan has an Unfunded
Pension Liability.
(e) No Nexstar Entity and no ERISA Affiliate has incurred,
nor reasonably expects to incur, any material liability under Title IV
of ERISA with respect to any Pension Plan.
(f) No Nexstar Entity and no ERISA Affiliate has incurred
nor reasonably expects to incur any material liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA,
would result in such material liability) under Section 4201 or 4243 of
ERISA with respect to a Multiemployer Plan.
(g) No Nexstar Entity and no ERISA Affiliate has transferred
any Unfunded Pension Liability to any Person or otherwise engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
6.08 Use of Proceeds; Margin Regulations. No Nexstar Entity is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying Margin Stock. No part
of the proceeds of any Loan have been or will be used by any Nexstar Entity,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, (i) to purchase or carry Margin Stock or to extend credit to others
for the purpose of purchasing or carrying Margin Stock or to refund indebtedness
originally incurred for such purpose, or (ii) for any purpose that entails a
violation of, or that is inconsistent with, the
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provisions of the regulations of the Federal Reserve Board including Regulations
U and X. If requested by any Bank or the Administrative Agent, each Credit Party
will furnish to the Administrative Agent and each Bank a statement to the
foregoing effect in conformity with the requirements of FR Form U-1 referred to
in said Regulation U.
6.09 Ownership of Property; Intellectual Property.
(a) Each Nexstar Entity has good record and indefeasible
title in fee simple to, or a valid leasehold interest in, all its Real
Property, and good title to, a valid leasehold interest in, or a valid
right to use, all its other property and assets which are material to
the operations of its businesses, in each case subject only to Permitted
Liens. All Mortgaged Properties of the Nexstar Entities are listed on
Schedule 6.09.
(b) (i) Each Nexstar Entity has complied with all
obligations under all leases to which it is a party and all such leases
are in full force and effect and (ii) each Nexstar Entity enjoys
peaceful and undisturbed possession under all such leases under which it
is a tenant, in each case except where the failure to comply or to enjoy
such possession, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
(c) As of the date of this Agreement, (i) no Nexstar Entity
has received any notice of, nor has any knowledge of, any pending or
contemplated condemnation proceeding affecting any Real Property owned
by such Nexstar Entity or any sale or disposition thereof in lieu of
condemnation and (ii) no Nexstar Entity is obligated under any right of
first refusal, option or other contractual right to sell, assign or
otherwise dispose of any of its Real Property or any interest therein.
(d) Each Nexstar Entity owns, or otherwise has the right to
use, all trademarks, tradenames, copyrights, technology, know-how and
processes ("Intellectual Property") necessary for the conduct of its
business as currently conducted except for those which the failure to
own or have the right to use, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect. Except for
such claims that, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect, no claim has been
asserted and is pending by any Person challenging or questioning the use
of any such Intellectual Property or the validity or effectiveness of
any such Intellectual Property, nor does any Nexstar Entity know of any
valid basis for any such claim. Except for such infringements that,
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, to the knowledge of each Nexstar Entity,
the use of such Intellectual Property by such Nexstar Entity does not
infringe on the rights of any Person.
6.10 Taxes. Each Nexstar Entity has filed all federal and other
material tax returns and reports required to be filed and paid the tax thereon
shown to be due, and has paid all federal and other material taxes, assessments,
fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are
being contested in good faith by appropriate proceedings and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against any
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Nexstar Entity which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
6.11 Financial Statements. All balance sheets, statements of
operations and other financial data which have been or shall hereafter be
furnished to the Administrative Agent and/or the Banks for purposes of or in
connection with this Agreement or any transaction contemplated hereby
(including, without limitation, the Compliance Certificate delivered to the
Administrative Agent pursuant to the Existing Nexstar Credit Agreement for the
Fiscal Quarter ended September 30, 2002 do and will present fairly, in all
material respects, the financial condition of the Nexstar Entities involved as
of the dates thereof and the results of their operations for the period(s)
covered thereby, and all such balance sheets, statements of operations and other
financial statements have been prepared in accordance with GAAP (subject, in the
case of interim financial statements, to normal year-end adjustments and the
absence of complete footnote disclosure). No Nexstar Entity has any material
Guarantee Obligation, contingent liability or liability for taxes, or any
long-term lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange transaction,
which is not reflected in its financial statements or in the schedules or notes
thereto and which would be required by GAAP to be disclosed therein (or in the
notes and schedules thereto). Since September 30, 2002, there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
6.12 Securities Law, etc.; Compliance. All transactions contemplated
by this Agreement and the other Loan Documents comply in all material respects
with (a) Regulations T, U and X of the Federal Reserve Board and (b) all other
applicable laws and any rules and regulations thereunder, except where the
failure to comply, in the case of this clause (b), could not reasonably be
expected to have a Material Adverse Effect.
6.13 Governmental Regulation. No Nexstar Entity is an "investment
company" within the meaning of the Investment Company Act of 1940 or a "holding
company," or a "subsidiary company" of a "holding company," or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company," within
the meaning of the Public Utility Holding Company Act of 1935. No Nexstar Entity
is subject to regulation under any other federal or state statute or regulation
which limits its ability to incur Indebtedness or Guaranty Obligations under
this Agreement or any other Loan Document.
6.14 Accuracy of Information. All factual information (excluding, in
any event, financial projections) heretofore or contemporaneously herewith
furnished by or on behalf of any Nexstar Entity in writing to the Administrative
Agent or any Bank for purposes of or in connection with this Agreement or any
transaction contemplated hereby, and all other such factual information
hereafter furnished by or on behalf of any Nexstar Entity to the Administrative
Agent or any Bank will be, true and accurate in every material respect on the
date as of which such information is dated or certified and not incomplete by
omitting to state any material fact necessary to make such information, in the
light of the circumstances existing at the time such information was delivered,
not misleading.
6.15 Hazardous Materials. No Nexstar Entity has caused or permitted
any Hazardous Material to be disposed of or otherwise released, to its best
knowledge, either from, on or under
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any property currently or formerly legally or beneficially owned or operated by,
or otherwise used by such Nexstar Entity, in any manner which has had or is
reasonably likely to have, a Material Adverse Effect. To the best knowledge of
each Nexstar Entity, no such property has ever been used as a dump site or
storage site for any Hazardous Materials or otherwise contains or contained
Hazardous Materials which usage has had or is reasonably likely to have, a
Material Adverse Effect. The failure, if any, of any Nexstar Entity, in
connection with their current and former properties or their businesses, to be
in compliance with any Environmental Law or to obtain any permit, certificate,
license, approval and other authorization under such Environmental Laws has not
had, and is not reasonably expected to have, a Material Adverse Effect. No
Nexstar Entity has entered into, has agreed to or is subject to any judgment,
decree or order or other similar requirement of any Governmental Authority under
any Environmental Law, including without limitation, relating to compliance or
to investigation, cleanup, remediation or removal of Hazardous Materials, which
has had, or is reasonably expected to have, a Material Adverse Effect. No
Nexstar Entity has contractually assumed any liabilities or obligations under
any Environmental Law which assumption has had, or is reasonably expected to
have, a Material Adverse Effect. There are no facts or circumstances which exist
that could give rise to liabilities with respect to Hazardous Materials or any
Environmental Law, which have had, or are reasonably expected to have, a
Material Adverse Effect.
6.16 FCC Licenses.
(a) Each Nexstar Entity holds such validly issued FCC
licenses and authorizations as are necessary to operate their respective
Stations as they are currently operated (collectively, the "FCC
Licenses"), and each such FCC License is in full force and effect. The
Stations of each Nexstar Entity and the FCC Licenses of each Nexstar
Entity as of the Effective Date are listed on Schedule 6.16, and each of
such FCC Licenses has the expiration date indicated on Schedule 6.16.
(b) No Nexstar Entity has knowledge of any condition imposed
by the FCC as part of any FCC License which is neither set forth on the
face thereof as issued by the FCC nor contained in the rules and
regulations of the FCC applicable generally to stations of the type,
nature, class or location of the Station in question. Each Station has
been and is being operated in all material respects in accordance with
the terms and conditions of the FCC Licenses applicable to it and the
rules and regulations of the FCC and the Communications Act of 1934, as
amended (the "Communications Act").
(c) No proceedings are pending or are threatened which may
result in the revocation, modification, non-renewal or suspension of any
of the FCC Licenses, the denial of any pending applications, the
issuance of any cease and desist order or the imposition of any fines,
forfeitures or other administrative actions by the FCC with respect to
any Station or its operation, other than any matters which, individually
or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect and proceedings affecting the television broadcasting
industry in general.
(d) All reports, applications and other documents required
to be filed by the Nexstar Entities with the FCC with respect to the
Stations have been timely filed, and all such reports, applications and
documents are true, correct and complete in all respects,
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except where the failure to make such timely filing or any inaccuracy
therein could not reasonably be expected to have a Material Adverse
Effect, and no Nexstar Entity has knowledge of any matters which could
reasonably be expected to result in the suspension or revocation of or
the refusal to renew any of the FCC Licenses or the imposition on any
Nexstar Entity of any material fines or forfeitures by the FCC, or which
could reasonably be expected to result in the revocation, rescission,
reversal or modification of any Station's authorization to operate as
currently authorized under the Communications Act and the policies,
rules and regulations of the FCC.
(e) There are no unsatisfied or otherwise outstanding
citations issued by the FCC with respect to any Station or its
operations. The Borrower has delivered to the Banks true and complete
copies of all FCC Licenses (including any and all amendments and other
modifications thereto), all pending applications relating thereto and
all orders and other documents issued by the FCC authorizing the
Acquisition of the Xxxxxx Stations and the LIN Stations, if any.
6.17 Subsidiaries; Capital Stock of Nexstar Finance Holdings. No
Nexstar Entity has any Subsidiaries except, on the date hereof, those
Subsidiaries which are identified in Schedule 6.17 and, thereafter, those
Subsidiaries identified as to be formed or Acquired in Schedule 6.17 or in any
Guaranty Supplement and those Subsidiaries permitted to be formed or Acquired in
compliance with the terms hereof. As of the date hereof, each of the Nexstar
Entities identified in Schedule 6.17 as owning Capital Stock of Nexstar Finance
Holdings II owns and holds directly the Capital Stock of Nexstar Finance
Holdings II indicated in Schedule 6.17. As of the date hereof, the Capital Stock
of Nexstar Finance Holdings II held by such Nexstar Entities collectively
constitutes all of the issued and outstanding Capital Stock of Nexstar Finance
Holdings II. Nexstar Finance Holdings II owns 100% of the Capital Stock of
Nexstar Finance Holdings.
6.18 Solvency. As of the date on which this representation and
warranty is made or deemed made, each Nexstar Entity is Solvent on a
consolidated and consolidating basis, both before and after giving effect to any
transaction with respect to which this representation and warranty is being made
and to the incurrence of all Indebtedness, Guarantee Obligations and other
obligations incurred on such date in connection herewith and therewith.
6.19 Labor Controversies. There are no labor controversies pending
or, to the best knowledge of each Nexstar Entity, threatened against any Nexstar
Entity which could reasonably be expected to have a Material Adverse Effect.
6.20 Security Documents.
(a) The Pledge and Security Agreement is effective to create
in favor of the Collateral Agent, for the benefit of the Banks, a legal,
valid and enforceable security interest in the Pledged Collateral and
the Lien granted pursuant to the Pledge and Security Agreement
constitutes a fully perfected first priority Lien on, and security
interest in, all right, title and interest of the pledgor or pledgors
thereunder in such Pledged Collateral and the proceeds thereof, in each
case prior and superior in right to any other Person.
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(b) The Security Agreement is effective to create in favor
of the Collateral Agent, for the benefit of the Banks, a legal, valid
and enforceable security interest in the Security Agreement Collateral
and proceeds thereof and the Lien granted pursuant to the Security
Agreement constitutes a fully perfected Lien on, and security interest
in, all right, title and interest of the grantor or grantors thereunder
in such Collateral and the proceeds thereof, in each case prior and
superior in right to any other Person, other than with respect to the
rights of Persons pursuant to Permitted Liens.
6.21 Network Affiliation Agreements. Set forth on Schedule 6.21
hereto is a list, as of the Effective Date, of each effective Network
Affiliation Agreement and the expiration date therefor.
6.22 Condition of Stations. All of the material properties, equipment
and systems of each Nexstar Entity and the Stations are, and all material
properties, equipment and systems to be added in connection with any
contemplated Station expansion or construction will be, in condition which is
sufficient for the operation thereof in accordance with past practice of the
Station in question and are and will be in compliance with all applicable
standards, rules or requirements imposed by (a) any governmental agency or
authority including without limitation the FCC and (b) any FCC License, in each
case except where such noncompliance could not reasonably be expected to have a
Material Adverse Effect.
6.23 Special Purpose Entities. The Parent Guarantors engage in no
business activities (other than as contemplated by this Agreement), and have (a)
no significant assets other than debt and equity securities of their respective
Subsidiaries or (b) liabilities other than (i) those liabilities permitted under
this Agreement and the other Loan Documents to which they are each respectively
a party, (ii) the Management Loan Guaranty, (iii) the Nexstar Guaranty of
Mission Obligations, (iv) the Management Agreement, (v) the Holdings
Subordinated Convertible Promissory Notes, (vi) the Parent Subordinated
Convertible Promissory Notes and (vii) liabilities for the payment of taxes.
ARTICLE VII.
AFFIRMATIVE COVENANTS
The Borrower and each Parent Guarantor agrees with the Administrative
Agent, the Syndication Agent and each Bank that, until all Commitments and
Letters of Credit have terminated and all Obligations (other than indemnities
for which no request for payment has been made) have been paid and performed in
full:
7.01 Financial Statements. The Borrower shall deliver to the
Administrative Agent, in form and detail satisfactory to the Administrative
Agent and the Majority Banks, and with sufficient copies for each Bank:
(a) 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 Ultimate Parent and its consolidated Subsidiaries and of
the Borrower and its consolidated Subsidiaries as at the end of such
Fiscal Year and the related consolidated statements of income or
operations,
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stockholders' or 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 accompanied by the opinion of
PricewaterhouseCoopers LLP or another 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 Ultimate Parent and/or the Borrower, on the one hand,
and such auditors, on the other hand, which are disclosed and described
in such statements); and 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 Ultimate Parent, the Borrower or
any of their respective Subsidiaries;
(b) 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 Ultimate
Parent and its consolidated Subsidiaries and of the Borrower and its
consolidated Subsidiaries as of the end of such Fiscal Quarter and the
related consolidated statements of income, stockholders' or members'
equity and cash flows for the period commencing on the first day and
ending on the last day of such Fiscal Quarter, and certified (in a
certificate of the Ultimate Parent or the Borrower, as the case may be,
executed on behalf of such Nexstar Entity by a Responsible Officer) 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 Ultimate Parent and its consolidated
Subsidiaries and of the Borrower and its consolidated Subsidiaries,
respectively; and
(c) 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 Ultimate Parent and its consolidated Subsidiaries and the
Borrower and its consolidated Subsidiaries as of the end of such month
and the related statements of income, stockholders' or members' equity
and cash flows for the period commencing on the first day and ending on
the last day of such month, and certified (in a certificate of the
Ultimate Parent or the Borrower, as the case may be, executed on behalf
of such Nexstar Entity by a Responsible Officer) 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 Ultimate Parent and its consolidated Subsidiaries and
the Borrower and its consolidated Subsidiaries, respectively.
7.02 Certificates; Other Information. The Borrower shall furnish to
the Administrative Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial
statements referred to in Sections 7.01(a) and (b), a Compliance
Certificate of the Ultimate Parent and the Borrower;
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(b) 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;
(c) promptly, such additional business, financial and other
information with respect to the Ultimate Parent, the Borrower or any of
their respective Subsidiaries as the Administrative Agent, at the
request of any Bank, may from time to time reasonably request; and
(d) promptly upon receipt thereof, notice of any change in
the credit ratings of any Nexstar Entity by Xxxxx'x or S & P.
7.03 Notices. The Borrower shall, upon any Responsible Officer of any
Nexstar Entity obtaining knowledge thereof, give notice (accompanied by a
reasonably detailed explanation with respect thereto) promptly to the
Administrative Agent, the Issuing Bank and each Bank of:
(a) the occurrence of any Default or Event of Default;
(b) any litigation, arbitration, or governmental
investigation or proceeding not previously disclosed by the Borrower to
the Banks which has been instituted or, to the knowledge of any Nexstar
Entity, is threatened against any Nexstar Entity or to which any of
their respective properties is subject (i) which could reasonably be
expected to have a Material Adverse Effect or (ii) which relates to this
Agreement, any other Loan Document or any of the transactions
contemplated hereby;
(c) any development which shall occur in any litigation,
arbitration, or governmental investigation or proceeding previously
disclosed by any Nexstar Entity to the Banks which could reasonably be
expected to have a Material Adverse Effect; or
(d) any of the following events affecting any Nexstar Entity
or any ERISA Affiliate (but in no event more than ten days after such
event), together with a copy of any notice with respect to such event
that may be required to be filed with a Governmental Authority and any
notice delivered by a Governmental Authority to any Nexstar Entity or
any ERISA Affiliate with respect to such event:
(i) an ERISA Event; or
(ii) any of the representations and warranties in
Section 6.07 ceasing to be true and correct.
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 the Banks (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
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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.
7.05 FCC Licenses and Regulatory Compliance. The Parent Guarantors
and the Borrower shall, and shall cause each of their respective Subsidiaries
to, comply in all material respects with all terms and conditions of all FCC
Licenses covering the Stations, 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 Parent Guarantors, the
Borrower and/or their respective Subsidiaries or the operation of the Stations
of any Nexstar Entity.
7.06 License Lapse. As soon as possible and in any event within five
days after the receipt thereof by any Nexstar Entity, the Borrower will give the
Banks 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
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.
7.07 Maintenance of Corporate, Limited Liability Company or
Partnership Existence, etc. The Parent Guarantors and the Borrower shall, and
shall cause each of their respective 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 except to the extent otherwise permitted pursuant to Section 8.04
(including by waiver or consent). Prior to the effective time of the Mergers,
each of the Nexstar Entities will continue to own and hold directly all of the
outstanding shares of Capital Stock of their respective Subsidiaries, each of
the Parent Guarantors that own Capital Stock of the Nexstar Finance Holdings II,
will continue to own and hold directly, collectively, all of the issued and
outstanding Capital Stock of Nexstar Finance Holdings II, except as otherwise
permitted pursuant to Section 8.04, and Nexstar Finance Holdings II will
continue to own and hold directly all of the Capital Stock of Nexstar Finance
Holdings. After the effective time of the Mergers, the Ultimate Parent will
continue to own and hold directly all of the outstanding shares of capital stock
of Nexstar Finance Holdings, and each of the Nexstar Entities other than the
Ultimate Parent will continue to own and hold directly all of the outstanding
shares of Capital Stock of their respective Subsidiaries, in each case as set
forth on Schedule 6.17, except as otherwise permitted pursuant to Section 8.04.
7.08 Foreign Qualification, etc. The Parent Guarantors and the
Borrower will, and will cause each of their respective Subsidiaries to, cause to
be done at all times all things necessary to maintain and preserve the rights
and franchises of the Parent Guarantors, the Borrower and their respective
Subsidiaries to be duly qualified to do business and be in good standing as a
foreign corporation in each jurisdiction where the nature of its business makes
such qualification necessary and where the failure to maintain and preserve or
so qualify could reasonably be expected to have a Material Adverse Effect.
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7.09 Payment of Taxes, etc. The Parent Guarantors and the Borrower
will, and will cause each of their respective Subsidiaries to, pay and
discharge, as the same may become due and payable, all federal and material
state and local taxes, assessments, and other governmental charges or levies
against or on any of the income, profits or property of a Nexstar Entity, as
well as material claims of any kind which, if unpaid, might become a Lien upon a
Nexstar Entity's properties, and will pay (before they become delinquent) all
other material obligations and liabilities; provided, however, that the
foregoing shall not require the Parent, Guarantors, the Borrower or any of their
respective Subsidiaries to pay or discharge any such tax, assessment, charge,
levy, lien, obligation or liability so long as such Nexstar Entity shall contest
the validity thereof in good faith by appropriate proceedings and shall set
aside on its books adequate reserves in accordance with GAAP.
7.10 Maintenance of Property; Insurance. The Parent Guarantors and
the Borrower will, and will cause each of their respective 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 their respective 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.
7.11 Compliance with Laws, etc. The Parent Guarantors and the
Borrower will, and will cause each of their respective Subsidiaries to, comply
with the Requirements of Law of any Governmental Authority, the noncompliance
with which could reasonably be expected to have a Material Adverse Effect.
7.12 Books and Records. The Parent Guarantors and the Borrower will,
and will cause each of their respective Subsidiaries to, keep proper books and
records reflecting all of their business affairs and transactions in accordance
with GAAP. Each of the Parent Guarantors and the Borrower will, and will cause
each of their respective Subsidiaries to, permit the Agents and any
Agent-Related Person, or, after the occurrence and during the continuance of any
Default or Event of Default under Section 9.01, any Bank, 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 Default 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 Administrative Agent, the Syndication Agent, any Agent-Related
Person, any Bank 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 Borrower's expense for any charges imposed by such
accountants or for making such abstracts or photocopies, but otherwise at the
Administrative Agent's, Syndication Agent's or such Bank's expense.
7.13 Use of Proceeds. The Borrower shall use, or cause its
Subsidiaries to use, the proceeds of the Loans (a) to refinance the Indebtedness
outstanding under the Existing Nexstar Credit Agreement and to pay related
transaction costs, (b) to finance Acquisitions permitted under this Agreement
(including by waiver or consent), and (c) for capital expenditures, working
capital and other general corporate requirements of the Borrower and its
Subsidiaries.
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7.14 End of Fiscal Years; Fiscal Quarters. The Parent Guarantors and
the Borrower will, for financial reporting purposes, cause (a) its and each of
their respective Subsidiaries' fiscal years to end on December 31 of each year
and (b) its and each of their respective Subsidiaries' fiscal quarters to end on
March 31, June 31, September 30 and December 31 of each year.
7.15 Interest Rate Protection. The Borrower shall maintain such
Interest Rate Protection Agreements as are necessary so as to provide, through
and including March 31, 2005 that at least 50% of the principal amount of the
sum of all Indebtedness for borrowed money of the Borrower and its Subsidiaries
plus all outstanding Mission Loans is subject to either a fixed interest rate or
interest rate protection.
7.16 Additional Security; Further Assurances.
(a) The Parent Guarantors and the Borrower will, and will
cause each of their respective Subsidiaries to, grant to the Collateral
Agent, for the benefit of the Banks, security interests and mortgages in
such assets and properties of the Nexstar Entities as are not covered by
the Security Documents, and as may be requested from time to time by the
Administrative Agent or the Majority Banks (collectively, the
"Additional Security Documents"). All such security interests and
mortgages shall be granted pursuant to documentation reasonably
satisfactory in form and substance to the Administrative Agent and the
Borrower and shall constitute valid and enforceable perfected security
interests and mortgages superior to and prior to the rights of all third
Persons and shall be subject to no Liens except for Permitted Liens. The
Additional Security Documents or instruments related thereto shall be
duly recorded or filed in such manner and in such places as are required
by law to establish, perfect, preserve and protect the Liens in favor of
the Collateral Agent required to be granted pursuant to the Additional
Security Documents and all taxes, fees and other charges payable in
connection therewith shall be paid in full.
(b) The Parent Guarantors and the Borrower will, and will
cause each of their respective Subsidiaries to, at the expense of the
Borrower, make, execute, endorse, acknowledge, file and/or deliver to
the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements,
transfer endorsements, powers of attorney, certificates, real property
surveys, reports and other assurances or instruments and take such
further steps relating to the collateral covered by any of the Security
Documents or any Additional Security Documents as the Collateral Agent
may reasonably require and as are reasonably satisfactory to the
Borrower. Furthermore, the Borrower shall cause to be delivered to the
Collateral Agent such opinions of counsel, title insurance and other
related documents as may be reasonably requested by the Collateral Agent
to assure itself that this Section 7.16 has been complied with.
(c) If at any time any Parent Guarantor or the Borrower
creates or acquires any additional Subsidiary, such Parent Guarantor
and/or the Borrower, as applicable, will promptly notify the
Administrative Agent thereof and cause such Subsidiary, within the time
period required by clause (f) of Section 8.11, to execute and deliver
appropriate
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Guaranty Supplements, a Joinder to Security Agreement and a Joinder to
Pledge and Security Agreement.
(d) If the Administrative Agent or the Majority Banks
determine that they or any of them are required by law or regulation to
have appraisals prepared in respect of any Real Property of the Nexstar
Entities constituting Collateral, the Borrower shall provide to the
Administrative Agent appraisals which satisfy the applicable
requirements of the Real Estate Appraisal Reform Amendments of the
Financial Institution Reform, Recovery and Enforcement Act of 1989 and
which shall be in form and substance reasonably satisfactory to the
Administrative Agent.
(e) The Parent Guarantors and the Borrower agree that each
action required above by this Section 7.16 shall be completed as soon as
possible, but in no event later than 90 days after such action is either
requested to be taken by the Administrative Agent or the Majority Banks
or required to be taken by the applicable Nexstar Entity pursuant to the
terms of this Section 7.16; provided that in no event shall any Nexstar
Entity be required to take any action, other than using its reasonable
efforts, to obtain consents from third parties with respect to its
compliance with this Section 7.16.
ARTICLE VIII.
NEGATIVE COVENANTS
The Borrower and each Parent Guarantor agrees with the Administrative
Agent, the Syndication Agent and each Bank that, until all Commitments and
Letters of Credit have terminated and all Obligations (other than indemnities
for which no request for payment has been made) have been paid and performed in
full:
8.01 Changes in Business. The Parent Guarantors and the Borrower will
not, and will not cause or permit any of their respective Subsidiaries to,
directly or indirectly, alter in a fundamental and substantial manner the
character of the Television Broadcasting Business of the Nexstar Entities, taken
as a whole, from that conducted immediately following the Effective Date.
8.02 Limitation on Liens. The Parent Guarantors and the Borrower will
not, and will not permit any of their respective Subsidiaries to, create, incur,
assume, or suffer to exist any Lien upon any of their respective revenues,
property (including fixed assets, inventory, Real Property, intangible rights
and Capital Stock) or other assets, whether now owned or hereafter acquired,
other than the following ("Permitted Liens"):
(a) immaterial Liens which were granted prior to the
Effective Date securing Indebtedness or other obligations in an
aggregate principal (or face amount) for all Nexstar Entities not to
exceed $2,500,000, and refinancings, renewals and extensions thereof to
the extent not encumbering additional property;
(b) Liens for taxes, assessments or other governmental
charges or levies to the extent that payment thereof shall not at the
time be required to be made in accordance with the provisions of Section
7.09;
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(c) Liens encumbering property of any Nexstar Entity
consisting of carriers, warehousemen, mechanics, materialmen, repairmen
and landlords and other Liens arising by operation of law and incurred
in the ordinary course of business for sums which are not overdue or
which are being contested in good faith by appropriate proceedings and
(if so contested) for which appropriate reserves with respect thereto
have been established and maintained on the books of such Nexstar Entity
in accordance with GAAP;
(d) Liens encumbering property of any Nexstar Entity
incurred in the ordinary course of business (i) in connection with
workers' compensation, unemployment insurance, or other forms of
governmental insurance or benefits, or to secure performance of bids,
tenders, statutory obligations, leases, and contracts (other than for
Indebtedness) entered into in the ordinary course of business of such
Nexstar Entity or (ii) to secure obligations on surety, performance or
appeal bonds so long as the obligations secured by Liens under this
clause (ii) do not exceed $2,500,000 in the aggregate at any time
outstanding for all Nexstar Entities;
(e) easements, rights-of-way, reservations, permits,
servitudes, zoning and similar restrictions and other similar
encumbrances or title defects (i) described in the Mortgage Policies or
(ii) which, in the aggregate, are not substantial in amount, and which
do not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business
of any Nexstar Entity;
(f) judgment Liens securing amounts not in excess of (i)
$2,500,000 and (x) in existence less than 30 days after the entry
thereof, (y) with respect to which execution has been stayed or (z) with
respect to which the appropriate insurance carrier has agreed in writing
that there is coverage by insurance or (ii) $2,500,000 in the aggregate
at any time outstanding for all Nexstar Entities;
(g) Liens securing documentary letters of credit; provided
such Liens attach only to the property or goods to which such letter of
credit relates;
(h) purchase money security interests encumbering, or Liens
otherwise encumbering at the time of the acquisition thereof by the
Borrower or its Subsidiaries, (i) Real Property, provided that such
security interests and Liens do not secure amounts in excess of
$2,500,000 in the aggregate at any time outstanding for the Borrower and
its Subsidiaries and (ii) equipment, furniture, machinery or other
assets hereafter acquired by the Borrower or its Subsidiaries for normal
business purposes, and refinancings, renewals and extensions of such
security interests and Liens, provided that such security interests and
Liens do not secure amounts in excess of $3,500,000 in the aggregate at
any time outstanding for the Borrower and its Subsidiaries;
(i) interests in Leaseholds under which a Nexstar Entity is
a lessor, provided such Leaseholds are otherwise not prohibited by the
terms of this Agreement;
(j) bankers' Liens in respect of deposit accounts that are
not part of the perfected Collateral;
(k) Liens created by the Security Documents;
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(l) Liens represented by the escrow of cash or Cash
Equivalents, and the earnings thereon, securing the obligations of the
Borrower or any of its Subsidiaries under any agreement to Acquire, or
pursuant to which it Acquired, Reinvestment Assets in accordance with
this Agreement or other assets which it is permitted to Acquire pursuant
to Section 8.04 (including by waiver or consent) or securing the
obligations of the Borrower or any of its Subsidiaries to the seller of
the property under any agreement pursuant to which the Borrower or any
of its Subsidiaries may Acquire Reinvestment Assets in accordance with
this Agreement or other assets which the Borrower or its Subsidiaries
are permitted to Acquire pursuant to Section 8.04 (including by waiver
or consent); and
(m) other Liens, so long as the obligations secured thereby
do not exceed $1,000,000 in the aggregate (for all Nexstar Entities) at
any time outstanding.
8.03 Disposition of Assets. The Parent Guarantors and the Borrower
will not, and will not suffer or permit any of their respective Subsidiaries to,
directly or indirectly, make any Disposition or enter into any agreement to make
any Disposition, except:
(a) any Nexstar Entity may make and agree to make
Dispositions to Wholly-Owned Subsidiaries of the Borrower or the
Borrower after prior written notice to the Administrative Agent
describing the Disposition and compliance by the transferee with the
applicable terms of the Security Documents;
(b) so long as no Default or Event of Default exists both
before and after giving effect thereto, the Borrower or any Subsidiary
of the Borrower may agree to and make Dispositions of Stations or the
Capital Stock of any Subsidiary of the Borrower so long as (i) the
aggregate amount received for all such Dispositions by the Mission
Entities and the Nexstar Entities does not exceed $30,000,000 in any
Fiscal Year or $60,000,000 during the period from the Effective Date
until the date the Obligations have been paid in full and the
Commitments have been terminated, and (ii) at least 10 Business Days
prior to the consummation of any proposed Disposition, the Borrower
shall have delivered to the Administrative Agent (A) a certificate of
the Borrower executed on its behalf by a Responsible Officer of the
Borrower, which certificate shall contain (x) financial projections of
the Borrower and its Subsidiaries attached to such certificate which
have been prepared on a Pro Forma Basis (giving effect to the
consummation of such Disposition and any related repayment of
Indebtedness) for the period from the proposed date of the consummation
of any proposed Disposition to the Stated Maturity Date of the latest to
mature of the Loans demonstrating compliance for such period with the
covenants set forth in Section 8.09, (y) a certification to the
Administrative Agent and the Banks that all representations and
warranties set forth in this Agreement and the other Loan Documents are
true and correct as of such date and will be true and correct both
before and after giving effect to such Disposition and (z) a
certification that no Default or Event of Default exists both before and
after giving effect to such Disposition and (B) a Pro Forma Compliance
Certificate of the Borrower for the then applicable Measurement Period
giving effect to the consummation of such Disposition and any related
repayment of Indebtedness;
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(c) Dispositions permitted by Section 8.04(c) and (d);
(d) Dispositions of cash or Cash Equivalents, unless
otherwise prohibited under this Agreement or the other Loan Documents;
(e) Dispositions of Capital Stock permitted under Section
8.13 (including by waiver or consent);
(f) so long as no Default or Event of Default exists both
before and after giving effect thereto, Dispositions consisting of Sale
and Leaseback Transactions effected with the prior written consent of
the Administrative Agent and the Majority Banks; and
(g) so long as no Default or Event of Default exists both
before and after giving effect thereto, Dispositions in connection with
a like-kind exchange (in accordance with the Code) of a Station or
Stations on terms and conditions reasonably acceptable to the
Administrative Agent and the Majority Banks, so long as (i) the
aggregate amount received for all such Dispositions does not exceed
$100,000,000 during the period from the Effective Date until the date
the Obligations have been paid in full and the Commitments have been
terminated and (ii) the Borrower provides all information and
certificates required by Section 8.04(b).
8.04 Consolidations, Mergers, Acquisitions, etc. The Parent
Guarantors and the Borrower will not, and will not suffer or permit any of their
respective Subsidiaries to, wind up, liquidate or dissolve themselves (or enter
into any agreement to take any such action), or make any Acquisition, or enter
into any agreement to make any Acquisition, 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, or commit to do any of the foregoing, except:
(a) the Parent Guarantors, the Borrower and their respective
Subsidiaries may make Dispositions permitted under Section 8.03
(including by waiver or consent);
(b) so long as no Default or Event of Default exists both
before and after giving effect thereto, (i) the purchase or acquisition
(by merger, consolidation, acquisition of Capital Stock or assets,
like-kind exchange or otherwise) by the Borrower or any Wholly-Owned
Subsidiary of the Borrower, after the Effective Date of (A) 100% of the
Capital Stock of any Person primarily engaged in the Television
Broadcasting Business, (B) a television broadcast station and all
related assets necessary to operate such television broadcast station,
or (ii) the entering into by the Borrower or any of its Wholly-Owned
Subsidiaries, after the Effective Date, of any Local Marketing
Agreement, Joint Sales Agreement and/or Shared Services Agreement with
respect to a television broadcasting station (other than in connection
with a Disposition); provided that at least 5 Business Days prior to
both the entering into commitment to enter into any transactions or
series of related transactions and the consummation of any such proposed
transaction or series of related transactions, or at such later time as
agreed to by the Administrative Agent, the Borrower shall have delivered
to the Administrative Agent,
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(1) a certificate of the Borrower executed on its behalf by
a Responsible Officer of the Borrower, certifying
(x) that the financial projections attached thereto
have been prepared on a Pro Forma Basis in good
faith after inclusion of the full transaction or
series of related transactions and all related
borrowings and issuances of Capital Stock in
connection therewith for the period from the date of
the actual or anticipated, as applicable,
consummation of the proposed transaction or series
of related transactions to the Stated Maturity Date
for the latest to mature of the Loans,
(y) that no Default or Event of Default exists or is
projected to exist both before and after giving
effect to the consummation of such transaction or
series of related transactions after giving effect
to the full transaction or series of related
transactions and all related borrowings and
issuances of Capital Stock in connection therewith,
and
(z) that as of the actual or anticipated, as
applicable, date of the consummation of the proposed
transaction or series of related transactions, each
of the Consolidated Total Leverage Ratio and the
Consolidated Senior Leverage Ratio then in effect
will be at least .25:1.0 less than the maximum
respective Consolidated Total Leverage Ratio and
Consolidated Senior Leverage Ratio permitted in
Section 8.09 for such date,
(2) a Pro Forma Compliance Certificate of the Borrower for
the Measurement Period for the actual or anticipated, as applicable,
consummation of such transactions, giving effect to the consummation of
such transaction or series of related transactions, and
(3) evidence satisfactory to the Majority Banks that there
is sufficient committed availability hereunder and/or from one or more
other financing sources acceptable to the Administrative Agent to
finance such transaction or series of related transactions;
provided further, that if immediately after giving effect to such transaction or
series of related transactions, the Consolidated Senior Leverage Ratio is
greater than or equal to 3.00:1.00, (i) the aggregate purchase consideration
paid or committed to be paid by the Nexstar Entities and the Mission Entities,
as applicable, in connection with such transaction or series of related
transactions may not exceed $25,000,000, (ii) the aggregate purchase
consideration committed to be paid but not yet paid by the Nexstar Entities and
the Mission Entities, as applicable, in connection with all Acquisitions to
which they have been committed pursuant to definitive agreements may not exceed
$50,000,000 in the aggregate, and (iii) the certificate provided pursuant to
clause (1) of
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the foregoing proviso shall contain, in addition to those requirements set forth
in (x), (y) and (z) above, certification of compliance with clauses (i) and (ii)
of this second proviso.
(c) any Subsidiary of the Borrower may merge with and into,
or be dissolved or liquidated into, the Borrower so long as (i) the
Borrower is the surviving Person of any such merger, dissolution or
liquidation and (ii) the Borrower complies with the relevant provisions
of the Security Documents to which it is a party so that the security
interests granted to the Collateral Agent pursuant to such Security
Documents in the assets of such merged, dissolved or liquidated
Subsidiary so merged shall remain in full force and effect and perfected
(to at least the same extent as in effect immediately prior to such
merger, dissolution or liquidation);
(d) any Subsidiary of the Borrower may merge with and into,
or be dissolved or liquidated into, any Wholly-Owned Subsidiary of the
Borrower so long as (i) such Wholly-Owned Subsidiary of the Borrower is
the surviving corporation of such merger, dissolution or liquidation and
(ii) the acquiring Wholly-Owned Subsidiary complies with the relevant
provisions of the Security Documents to which it is a party so that the
security interests granted to the Collateral Agent pursuant to such
Security Documents in the assets of such merged, dissolved or liquidated
Subsidiary shall remain in full force and effect and perfected (to at
least the same extent as in effect immediately prior to such merger,
dissolution or liquidation);
(e) the formation or creation of new Subsidiaries of the
Nexstar Entities in accordance with Section 8.11(f);
(f) the Borrower or a Wholly-Owned Subsidiary of the
Borrower which is a Guarantor may acquire the stock of the corporations
that directly or indirectly own the Xxxxxx Stations, provided
(A) the maximum purchase price (net of adjustments
set forth in Section 1.2(c) of the Stock Purchase
Agreement, dated December 30, 2002, by and among the
Ultimate Parent, Nexstar Broadcasting of Little Rock,
L.L.C., Nexstar Broadcasting of Dothan, L.L.C., Xxxxxx
Network, Inc., United Broadcasting Corporation, KARK-TV,
Inc., and Xxxxxx Network of Alabama, Inc.), is
$90,000,000,
(B) not more than $40,000,000 shall have been paid
concurrent with the execution of any related Local
Marketing Agreement, Joint Sales Agreement and/or Shared
Services Agreement (or similar arrangement), or a stock
purchase agreement (or similar arrangement) and the
remainder of the purchase price is to be paid only upon
or after consummation of the purchase of such stock,
(C) the purchase of such stock must be consummated
no later than June 30, 2004, and
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(D) no Event of Default exists or will exist before
and after giving effect to the consummation of such
transaction;
(g) the Parent Guarantors, the Borrower and their respective
Subsidiaries may consummate the Mergers; provided (A) the Mergers are
accomplished pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent and its counsel, (B)
immediately after the Mergers, the Ultimate Parent, Nexstar Finance
Holdings and Nexstar Finance, Inc., execute and deliver to the
Administrative Agent Ratification and Assumption Agreements
substantially in the forms of Exhibits X-0, X-0 xxx X-0, respectively,
and cause to be delivered to the Administrative Agent an opinion of
counsel in form and substance reasonably satisfactory to the
Administrative Agent (including, without limitation, customary opinions
with respect to the Mergers and an enforceability opinion with respect
to each Ratification and Assumption Agreement) and such other documents
as may be reasonably requested by the Administrative Agent to assure
itself of the continuing effectiveness of the Loan Documents being
ratified and assumed by the Ultimate Parent, Nexstar Finance Holdings
and Nexstar Finance, Inc., respectively, (C) no Default or Event of
Default exists after giving effect to the Mergers, (D) the Parent
Merger, the Holdco Merger and the Borrower Merger are consummated and
effective on the same day, and (E) the Initial Public Offering is
consummated on or within one Business Day after the effective date of
the Mergers;
(h) with respect to any Station owned by any Mission Entity,
any Nexstar Entity may (subject to the FCC's rules and regulations)
enter into a Local Marketing Agreement, Joint Sales Agreement and/or
Shared Services Agreement with any Mission Entity and/or any Nexstar
Entity; and
(i) with respect to any Station owned by any Nexstar Entity,
any other Nexstar Entity may (subject to the FCC's rules and
regulations) enter into a Local Marketing Agreement, Joint Sales
Agreement and/or Shared Services Agreement with any Nexstar Entity.
8.05 Limitation on Indebtedness. The Parent Guarantors and the
Borrower will not, and will not suffer or permit any of their respective
Subsidiaries to, create, incur, issue, assume, suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness existing on the Effective Date and
described on Schedule 8.05(a) and any refinancings, refundings, renewals
or extensions thereof (without increasing, or shortening the maturity
of, the principal amount of such Indebtedness);
(b) Indebtedness incurred pursuant to any Loan Document;
(c) Indebtedness of any Credit Party owing to the Borrower
or any Wholly-Owned Subsidiary of the Borrower, provided that any such
Indebtedness (i) is permitted to be advanced by the Borrower or such
Wholly-Owned Subsidiary pursuant to the
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provisions of Section 8.11 and (ii) is not subordinated to any other
Indebtedness of the obligor (other than the Obligations);
(d) so long as no Event of Default exists both before and
after giving effect to the incurrence thereof, Indebtedness of the
Borrower and/or its Subsidiaries secured by Liens permitted by Section
8.02(h);
(e) so long as no Event of Default exists both before and
after giving effect to the incurrence thereof, (i) Permitted Borrower
Unsecured Indebtedness in an aggregate principal amount not to exceed
$5,000,000 outstanding at any time, such maximum amount to be reduced by
the aggregate principal amount of "Permitted Borrower Unsecured
Indebtedness" (as such term is defined in the Mission Credit Agreement)
of any Mission Entity outstanding at any time, and (ii) Permitted Seller
Subordinated Indebtedness, in an aggregate principal amount not to
exceed $15,000,000 outstanding at any time, such maximum permitted
amount to be reduced by the aggregate principal amount of "Permitted
Seller Subordinated Indebtedness" (as such term is defined in the
Mission Credit Agreement) of any Mission Entity outstanding at such
time, provided that prior to the incurrence of any such Indebtedness,
the Borrower shall have delivered to the Administrative Agent (x) a
certificate of the Borrower executed on its behalf by a Responsible
Officer of the Borrower certifying (A) compliance with each of the
financial covenants contained in Section 8.09, based on financial
projections of the Borrower and its Subsidiaries attached to such
certificate which have been prepared on a Pro Forma Basis for the period
from the proposed date of the incurrence of such Indebtedness to the
Stated Maturity Date of the latest to mature of the Loans and (B) that
no Default or Event of Default exists or will exist both before and
after giving effect to the incurrence of such Indebtedness and (y) a Pro
Forma Compliance Certificate of the Borrower prepared as of the date of
the incurrence of such Indebtedness, giving effect to the incurrence of
such Indebtedness;
(f) so long as no Event of Default exists both before and
after giving effect to the incurrence thereof, Interest Rate Protection
Agreements required hereunder or in respect of Indebtedness otherwise
permitted hereby so long as such agreements are not entered into for
speculative purposes and the Borrower is in compliance with Section 7.15
after giving effect thereto;
(g) Capital Lease Obligations and other Indebtedness (other
than Indebtedness for borrowed money) of the Borrower and/or its
Subsidiaries in an amount not to exceed $3,500,000 in the aggregate for
the Borrower and its Subsidiaries at any time outstanding, such maximum
amount to be reduced by the aggregate principal amount of Indebtedness
of any Mission Entity permitted under Section 8.05(g) of the Mission
Credit Agreement outstanding at any time;
(h) (i) subordinated Guaranty Obligations of the Nexstar
Entities (other than the Borrower) with respect to Permitted Borrower
Subordinated Indebtedness and Guaranty Obligations of the Nexstar
Entities (other than Nexstar Finance Holdings) with respect to Permitted
Holdings Unsecured Indebtedness, and (ii) subordinated Guaranty
Obligations of the Nexstar Entities (other than the Borrower) with
respect to Permitted
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Seller Subordinated Indebtedness incurred by the Borrower and
subordinated Guaranty Obligations of the Nexstar Entities with respect
to Permitted Seller Subordinated Indebtedness (as that term is defined
in the Mission Credit Agreement);
(i) the Ultimate Parent, Nexstar Finance Holdings II and/or
Nexstar Finance Holdings may borrow up to an aggregate principal amount
not to exceed $30,000,000 in the aggregate at any time outstanding from
one or more ABRY Funds and/or Sook (or other Persons exercising
preemptive rights in connection with an issuance of Capital Stock to one
or more of them) pursuant to the terms and conditions of, and as
evidenced by, a Parent Subordinated Convertible Promissory Note (an
"Initial Loan"), provided that, concurrently upon receipt thereof by
Nexstar Finance Holdings II, the Net Debt Proceeds from any Initial Loan
are used to make a loan in equal amount to Nexstar Finance Holdings
pursuant to the terms and conditions of, and as evidenced by, a Holdings
Subordinated Convertible Promissory Note, provided further that,
concurrently upon receipt thereof by Nexstar Finance Holdings, the New
Debt Proceeds from any Initial Loan made to Nexstar Finance Holdings or
any loan pursuant to the preceding proviso are used to make a loan in
equal amount to the Borrower pursuant to the terms and conditions or,
and as evidenced by, a Borrower Subordinated Convertible Promissory
Note, provided further that each such loan made pursuant to a Parent
Subordinated Convertible Promissory Note, a Holdings Subordinated
Convertible Promissory Note or a Borrower Subordinated Convertible
Promissory Note shall remain outstanding only until the earlier to occur
of (x) the occurrence of a Default or an Event of Default or (y) the
date which is eighteen months after such loan is made, at which time (I)
the principal amount of (and all accrued and unpaid interest on) each
such Initial Loan to Nexstar Finance Holdings or Nexstar Finance
Holdings II will convert into Capital Stock (that is not Disqualified
Stock) of the Ultimate Parent in accordance with the terms and
provisions of the applicable Parent Subordinated Convertible Promissory
Note, (II) the principal amount of (and all accrued and unpaid interest
on) each such loan by Nexstar Finance Holdings II to Nexstar Finance
Holdings will convert into common equity of Nexstar Finance Holdings in
accordance with the terms and provisions of the applicable Holdings
Subordinated Convertible Promissory Note, and (III) the principal amount
of (and all accrued and unpaid interest on) each such loan by Nexstar
Finance Holdings to the Borrower will convert into common equity of the
Borrower in accordance with the terms and provisions of the applicable
Borrower Subordinated Convertible Promissory Note;
(j) so long as no Default or Event of Default exists both
before and after giving effect to the incurrence thereof, the Borrower
may incur Permitted Borrower Subordinated Indebtedness and Nexstar
Finance Holdings may incur Permitted Holdings Unsecured Indebtedness in
an aggregate amount not to exceed $150,000,000 for such Permitted
Borrower Subordinated Indebtedness and Permitted Holdings Unsecured
Indebtedness incurred after the Effective Date, provided that (A) prior
to the date of the incurrence thereof, the Borrower shall have delivered
to the Administrative Agent (1) a certificate of the Borrower executed
on its behalf by a Responsible Officer of the Borrower, certifying
compliance with each of the financial covenants contained in Section
8.09, based on financial projections of the Borrower and its
Subsidiaries attached to such certificate which have been prepared on a
Pro Forma Basis for the period from
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the date of the proposed date of the incurrence of such Permitted
Borrower Subordinated Indebtedness or Permitted Holdings Unsecured
Indebtedness to the Stated Maturity Date of the latest to mature of the
Loans and (y) that no Default or Event of Default exists or will exist
both before and after giving effect to the incurrence of such
Indebtedness, and (2) a Pro Forma Compliance Certificate of the Borrower
prepared as of the date of the incurrence of such Indebtedness giving
effect to the incurrence of such Indebtedness and the use(s) of the
proceeds thereof, and (B) concurrently upon receipt thereof, the Net
Debt Proceeds therefrom are applied as may be required by accordance
with Section 2.07(f);
(k) (i) prior to the effective time of the Mergers,
intercompany loans from the Ultimate Parent to Nexstar Finance Holdings
II and from Nexstar Finance Holdings II to Nexstar Finance Holdings
which are pledged as security for the Loans and the proceeds of which
are concurrently, upon receipt thereof, contributed as common equity to
the Borrower and (ii) after the effective time of the Mergers,
intercompany loans from the Ultimate Parent to Nexstar Finance Holdings
which are pledged as security for the Loans and the proceeds of which
are concurrently, upon receipt thereof, contributed as common equity to
the Borrower; and
(l) Permitted Parent Preferred Equity as permitted by
Section 8.13(e).
8.06 Transactions with Affiliates. Other than any Permitted Affiliate
Transaction, the Parent Guarantors and the Borrower will not, and will not
permit any of their respective Subsidiaries to, enter into, or cause, suffer, or
permit to exist:
(a) any arrangement or contract with any of its Affiliates
of a nature customarily entered into by Persons which are Affiliates of
each other (including arrangements relating to the allocation of
revenues, taxes, and expenses or otherwise) requiring any payments to be
made by any Nexstar Entity to any such Affiliate unless such arrangement
or contract is specifically permitted by this Agreement, is in the
ordinary course of such Person's business and is fair and equitable to
such Nexstar Entity;
(b) any other transaction, arrangement, or contract with any
of its Affiliates unless such transaction, arrangement or contract is on
terms which are specifically permitted by this Agreement, is in the
ordinary course of such Person's business and is on terms not less
favorable than are obtainable from any Person which is not one of its
Affiliates; or
(c) any management services agreement other than the Second
Amended and Restated Management Consulting Services Agreement, dated
January 5, 1998, originally entered into between ABRY Partners, Inc. and
Nexstar Management Inc. (f/k/a Nexstar Broadcasting Group, Inc.), as in
effect on the Effective Date (the "Management Agreement").
8.07 Use of Credits; Compliance with Margin Regulations. The Parent
Guarantors and the Borrower will not, and will not suffer or permit any of their
respective Subsidiaries to, use any portion of the proceeds of the Loans or any
Letter of Credit, directly or indirectly, to
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purchase or carry Margin Stock other than in compliance with Regulations T, U
and X of the Federal Reserve Board. At no time shall the value of the Margin
Stock owned by any Nexstar Entity (as determined in accordance with Regulation U
of the Federal Reserve Board) exceed 25% of the value (as determined in
accordance with Section 221.2(g)(2) of Regulation U of the Federal Reserve
Board) of the assets of such Nexstar Entity.
8.08 Environmental Liabilities. The Parent Guarantors and the
Borrower will not and will not permit any of their respective Subsidiaries to
violate any Environmental Law to an extent sufficient to give rise to a Material
Adverse Effect; and, without limiting the foregoing, the Parent Guarantors and
the Borrower will not, and will not permit any of their respective Subsidiaries
or any other Person to, dispose of any Hazardous Material into or onto, or
(except in accordance with applicable law) from, any Real Property owned,
operated or otherwise used by any Nexstar Entity, or allow any Lien imposed
pursuant to any Environmental Law to be imposed or to remain on such Real
Property, in each case to the extent the same are reasonably likely to have a
Material Adverse Effect, except as contested in reasonable good faith by
appropriate proceedings and the pendency of such proceedings will not have a
Material Adverse Effect and except and unless adequate reserves have been
established and are being maintained on its books in accordance with GAAP.
8.09 Financial Covenants.
(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
March 30, 2004 7.25 to 1.00
March 31, 2004 through and including June 29, 2004 7.00 to 1.00
June 30, 2004 through and including September 29, 2004 6.75 to 1.00
September 30, 2004 through and including December 30, 2004 6.25 to 1.00
December 31, 2004 through and including June 29, 2006 5.75 to 1.00
June 30, 2006 and thereafter 5.50 to 1.00
If the Initial Public Offering is consummated prior to March 31, 2004, then the
maximum Consolidated Total Leverage Ratio for the period from such consummation
through and including March 30, 2004 shall be reduced to 7.00 to 1.00.
(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:
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Period Ratio
---------------------------------------------------------- ---------------
Effective Date through and including June 29, 2004 4.25 to 1.00
June 30, 2004 through and including September 29, 2004 4.00 to 1.00
September 30, 2004 through and including December 30, 2004 3.75 to 1.00
December 31, 2004 through and including June 29, 2006 3.25 to 1.00
June 30, 2006 and thereafter 3.00 to 1.00
If the Initial Public Offering is consummated prior to March 31, 2004, then the
maximum Consolidated Senior Leverage Ratio for the period from such consummation
through and including September 29, 2004 shall be reduced to 4.00 to 1.00.
(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, 2004 1.50 to 1.00
June 30, 2004 through and including December 30, 2006 1.75 to 1.00
December 31, 2006 and thereafter 2.00 to 1.00
(d) Consolidated Fixed Charge Coverage Ratio. The
Consolidated Fixed Charge Coverage Ratio shall not at any time be less
than (i) 1.10 to 1.00 for the Effective Date through and including
September 29, 2004, and (ii) 1.20 to 1.00 for September 30, 2004 and
thereafter.
(e) Limitations on Capital Expenditures. The Parent
Guarantors and the Borrower will not, and will not permit any of their
respective Subsidiaries to, make any Capital Expenditures (including any
Capital Expenditures with respect to the Acquired Properties) during any
Fiscal Year which exceed, in the aggregate for the Ultimate Parent and
its Subsidiaries, $9,000,000. Notwithstanding anything to the contrary
contained in the preceding sentence, (x) in the event the amount of
Capital Expenditures permitted to be made by the Ultimate Parent and its
Subsidiaries pursuant to this Section 8.09(e) in any Fiscal Year (before
giving effect to any increase in such permitted expenditure amount
pursuant to this sentence) is greater than the amount of such Capital
Expenditures made by the Ultimate Parent and its Subsidiaries during
such Fiscal Year, such excess may be carried forward and utilized to
make Capital Expenditures in the succeeding Fiscal Year, (y) the amount
of Capital Expenditures permitted to be made by the Ultimate Parent and
its Subsidiaries during any Fiscal Year shall be increased by an amount
equal
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to that portion of the proceeds of any Recovery Event not required to be
applied to prepay Loans pursuant to Section 2.07(c), and (z) the amount
of Capital Expenditures permitted to be made by the Ultimate Parent and
its Subsidiaries during any Fiscal Year shall be increased by an amount
equal to $750,000 for each Station Acquired during the Fiscal Year in
which such Acquisition occurs (except with respect to the Acquired
Properties) and for each such Station for each Fiscal Year thereafter.
(f) Limitation on Film Cash Payments. The Parent Guarantors
and the Borrower will not, and will not permit any of their respective
Subsidiaries to, make any Film Cash Payments during any Fiscal Year
which exceed, in the aggregate for the Ultimate Parent and its
Subsidiaries an amount equal to $11,000,000; provided that such amount
shall be increased by $750,000 for each Station Acquired during the
Fiscal Year in which such Acquisition occurs (except with respect to the
Acquired Properties) and for each such Station for each Fiscal Year
thereafter.
8.10 Restricted Payments. The Parent Guarantors and the Borrower
shall not, and shall not permit any of their respective Subsidiaries to, make
any Restricted Payment, except:
(a) so long as no Default or Event of Default exists both
before and after giving effect to such repurchases, the Ultimate Parent
may repurchase equity interests in the Ultimate Parent from former
employees of the Nexstar Entities in an aggregate amount for all such
repurchases pursuant to this Section 8.10(a) combined not to exceed
$500,000 during any Fiscal Year, and the Subsidiaries of the Ultimate
Parent may authorize, declare and/or pay Dividends to their respective
shareholders, partners or members in the amount necessary to provide the
funds necessary to permit the Ultimate Parent to make such repurchases;
(b) so long as no continuing Event of Default under clause
(a) of Section 9.01 exists before giving effect to such repurchases, the
Ultimate Parent may repurchase equity interests in the Ultimate Parent
from former members of management of any Nexstar Entity so long as such
repurchases are made from, and are equal to or less than the amount of,
any proceeds received from any key-man life insurance policy or from
capital contributions made by an ABRY Fund and/or Sook (or other Persons
exercising preemptive rights in connection with an issuance of Capital
Stock to any of them) which are not required to be used to prepay the
Loans under Section 2.07(e);
(c) the Subsidiaries of the Borrower may make Restricted
Payments to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(d) so long as no Default or Event of Default exists both
before and after giving effect to such Dividends and the Borrower and
Nexstar Finance Holdings are each properly treated as a partnership or a
disregarded entity for federal and state income tax purposes for the
relevant taxable year, (i) the Borrower may authorize, declare and pay
Dividends to Nexstar Finance Holdings and Nexstar Finance Holdings and
the other Parent Guarantors may authorize, declare and pay corresponding
Dividends to their respective shareholders, partners or members for the
annual income tax payments of such shareholders, partners or members,
not to exceed $1,755,000 in the aggregate for all tax
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payments in respect of Fiscal Year 2002 (and up to 110% of the maximum
permitted amount for the preceding Fiscal Year, with respect to any
Fiscal Year thereafter) and (ii) the Borrower and each Parent Guarantor
may authorize, declare and pay Dividends to their respective
shareholders, partners or members, as applicable, in an amount equal to
the taxes, if any, due in connection with any Disposition but in no
event in excess of the amounts received and retained by such
distributing Person (in accordance with this Agreement) in connection
with such Disposition or by receipt of any such Dividend;
(e) so long as no Default or Event of Default exists both
before and after giving effect to such Dividends, the Borrower and each
Parent Guarantor may authorize, declare and pay Dividends to their
respective shareholders, partners or members, as applicable, for the
purpose of (i) paying such distributing 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
during Fiscal Year 2003 (and up to 105% of the maximum permitted amount
for the preceding Fiscal Year, during any Fiscal Year thereafter), and
(ii) the payment of 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 $300,000 in the aggregate for all Stations
during Fiscal Year 2003 (and up to 105% of the maximum permitted amount
for the preceding Fiscal Year, during any Fiscal Year thereafter);
(f) so long as no Default or Event of Default exists both
before and after the making thereof, after the fourth anniversary date
of the issuance thereof, (i) the Borrower may authorize, declare and pay
Dividends to Nexstar Finance Holdings in the amount necessary to permit
Nexstar Finance Holdings to make payments of cash interest and/or
accreted value which becomes due and payable with respect to Permitted
Holdings Unsecured Indebtedness and (ii) Nexstar Finance Holdings may
make such cash interest and/or accreted value payments if, prior to the
making of such payments of cash interest and/or accreted value by
Nexstar Finance Holdings, the Borrower shall have delivered to the
Administrative Agent a Pro Forma Compliance Certificate of the Borrower
prepared as of the date of the making of each such Dividend of the
Borrower, giving effect to each such Dividend of the Borrower and the
related payments of cash interest and/or accreted value to be made by
Nexstar Finance Holdings as though each such Dividend of the Borrower
and the related payments of cash interest and/or accreted value to be
made by Nexstar Finance Holdings had been made on the first day of the
applicable Measurement Period relating to the date each such Dividend by
the Borrower is to be made, and otherwise demonstrating that no Default
or Event of Default exists both before and after giving effect to each
such Dividend and related payments of cash interest and/or accreted
value;
(g) so long as no Default or Event of Default exists both
before and after the making thereof, the Borrower may make scheduled
cash interest payments due and payable with respect to Permitted Seller
Subordinated Indebtedness if, prior to the making of each such payment,
the Borrower has delivered to the Administrative Agent a Pro Forma
Compliance Certificate of the Borrower prepared as of the date of the
making of each such payment, giving effect to each such payment as
though such payment had been made on the first day of the applicable
Measurement Period relating to the date such
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payment is to be made, and otherwise demonstrating that no Default or
Event of Default exists both before and after giving effect to such
payment;
(h) so long as no Default or Event of Default exists both
before and after the making thereof, the Borrower may make payments of
scheduled cash interest due and payable with respect to (i) Permitted
Borrower Unsecured Indebtedness and (ii) Permitted Borrower Subordinated
Indebtedness, if prior to the making of such payments of cash interest,
the Borrower has delivered to the Administrative Agent a Pro Forma
Compliance Certificate of the Borrower prepared as of the date of the
making of each such payment of cash interest, giving effect to each such
payment as though such payment had been made on the first day of the
applicable Measurement Period relating to the date such payment is to be
made, and otherwise demonstrating that no Default or Event of Default
exists both before and after giving effect to such payment of cash
interest;
(i) so long as no Default or Event of Default exists after the making
thereof, the Nexstar Entities may make the Cash Redemption Funding, the
Preferred Redemption and the Holdings II Notes Repayment; provided, that
(i) each such Restricted Payment may only be made
using Net Issuance Proceeds of the Initial Public Offering
(recognizing that the Cash Redemption Funding will be made prior
to the Initial Public Offering with funds other than Net
Issuance Proceeds of the Initial Public Offering but that an
amount equal to the Cash Redemption Funding will be immediately
contributed to the Borrower as cash common equity with the Net
Issuance Proceeds of the Initial Public Offering to replace such
funds),
(ii) immediately prior to the Initial Public
Offering, the Administrative Agent shall have received (A) a
consolidated balance sheet of the Ultimate Parent and its
consolidated Subsidiaries, taken together, and the Borrower and
its consolidated Subsidiaries, taken together, prepared on a Pro
Forma Basis, giving effect to the Initial Public Offering and
the other transactions consummated in connection therewith, as
if such transactions occurred as of the first day of the
applicable Measurement Period, and (B) a Pro Forma Compliance
Certificate of the Ultimate Parent and the Borrower duly
executed on behalf of the Ultimate Parent and the Borrower by a
Responsible Officer of the Ultimate Parent and the Borrower,
giving effect to the Initial Public Offering and the other
transactions consummated in connection therewith, as if such
transactions occurred as of the first day of the applicable
Measurement Period, and certifying that the Initial Public
Offering complies with all of the other requirements of Section
8.13,
(iii) the Holdings II Notes Repayment is effected
contemporaneously with the Initial Public Offering, and
(iv) the Cash Redemption Funding, the Preferred
Redemption and the Holdings II Notes Repayment all occur
pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent;
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(j) so long as no Default or Event of Default exists both
before and after the making thereof, after February 13, 2007 (i) the
Borrower may authorize, declare and pay Dividends to Nexstar Finance
Holdings and Nexstar Finance Holdings may in turn make corresponding
Dividends to one or more of the Ultimate Parent's Wholly-Owned
Subsidiaries, and such Wholly-Owned Subsidiaries of the Ultimate Parent
may in turn make corresponding Dividends to the Ultimate Parent, in each
case in the amount necessary to permit the Ultimate Parent to make
payments of cash Dividends which become due and payable with respect to
Permitted Parent Preferred Equity and (ii) the Ultimate Parent may pay
such cash Dividends if, prior to the making of such payments of cash
Dividends by the Ultimate Parent, the Borrower shall have delivered to
the Administrative Agent a Pro Forma Compliance Certificate of the
Borrower prepared as of the date of the making of each such Dividend,
giving effect to each such Dividend of the Borrower, Nexstar Finance
Holdings and such Wholly-Owned Subsidiaries of the Ultimate Parent and
the related payments of cash Dividends to be made by Nexstar Finance
Holdings, the Wholly-Owned Subsidiaries of the Ultimate Parent and the
Ultimate Parent as though each such Dividend and the related payments of
cash Dividends had been made on the first day of the applicable
Measurement Period relating to the date each such Dividend is to be
made, and otherwise demonstrating that no Default or Event of Default
exists both before and after giving effect to each such Dividend and
related payments of cash Dividends;
(k) prior to the effective time of the Mergers only, so long
as no Default or Event of Default exists both before and after the
making thereof, (i) the Borrower may authorize, declare and pay
Dividends to Nexstar Finance Holdings and Nexstar Finance Holdings may
in turn make corresponding Dividends to one or more of the Ultimate
Parent's Wholly-Owned Subsidiaries, and such Wholly-Owned Subsidiaries
of the Ultimate Parent may in turn make corresponding Dividends to the
Ultimate Parent, in each case in the amount necessary to permit the
Ultimate Parent to make payments to Nexstar Equity pursuant to the
Nexstar Equity Reimbursement Agreement to reimburse such entity for
expenses in connection with maintaining its corporate existence, filing
tax returns, maintaining directors' and officers' insurance and such
other activities as are deemed necessary by Nexstar Equity's board of
directors and agreed to by the Ultimate Parent, provided, that the
aggregate amount of such Dividends and expenses to be reimbursed by the
Ultimate Parent in any Fiscal Year shall not exceed $40,000, and (ii)
the Ultimate Parent may make such payments to Nexstar Equity; and
(l) so long as (i) no Default or Event of Default exists
after giving effect to the making of such Restricted Payment and (ii)
prior to the making of such Restricted Payment the Administrative Agent
shall have received a certificate duly executed on behalf of the
Ultimate Parent and the Borrower by a Responsible Officer of the
Borrower certifying that each of the Consolidated Total Leverage Ratio
and the Consolidated Senior Leverage Ratio in effect after the making of
such Restricted Payment will be at least .25:1.0 less than the maximum
respective Consolidated Total Leverage Ratio and Consolidated Senior
Leverage Ratio permitted in Section 8.09 for such date, any Nexstar
Entity may make any Restricted Payment with Net Issuance Proceeds from
the Initial Public Offering to repay, repurchase and or redeem any
Capital Stock or debt instrument of any Nexstar Entity.
8.11 Advances, Investments and Loans. The Parent Guarantors and the
Borrower will not, and will not permit their respective Subsidiaries to, lend
money or credit or make advances to any Person, or purchase or acquire any
Capital Stock, obligations or securities of, or any other
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interest in, or make any capital contribution to, any Person, or purchase or own
a futures contract or otherwise become liable for the purchase or sale of
currency or other commodities at a future date in the nature of a futures
contract, or hold any cash or Cash Equivalents, except:
(a) the Nexstar Entities may invest in cash and Cash
Equivalents;
(b) the Borrower may enter into Interest Rate Protection
Agreements in compliance with Section 8.05(f);
(c) the Credit Parties may make equity contributions to the
capital of their respective Subsidiaries that are Credit Parties (or
prior to the effective time of the Mergers, to Nexstar Finance Holdings
II, in the case of those Parent Guarantors that collectively own all of
the issued and outstanding Capital Stock of the Nexstar Finance Holdings
II);
(d) any purchase or acquisition of Capital Stock as
permitted pursuant to Section 8.04 (including by waiver or consent);
(e) advances, loans and investments in existence on the
Effective Date and listed on Schedule 8.11(e) shall be permitted,
without giving effect to any additions thereto or replacements thereof
(except those additions or replacements which are existing obligations
as of the Effective Date);
(f) any Nexstar Entity may establish or create new
Wholly-Owned Subsidiaries so long as (i) at least 30 days' prior written
notice thereof (or such lesser notice as is acceptable to the
Administrative Agent) is given to the Administrative Agent, (ii) the
Capital Stock of such new Subsidiary is pledged pursuant to, and to the
extent required by, this Agreement and the Pledge and Security Agreement
and the certificates, if any, representing Capital Stock, together with
stock powers duly executed in blank, are delivered to the Collateral
Agent, (iii) such new Subsidiary executes Guaranty Supplements, a
Joinder to Security Agreement and a Joinder to Pledge and Security
Agreement, and (iv) such new Subsidiary, to the extent requested by the
Administrative Agent or the Majority Banks, takes all actions required
pursuant to Section 7.16. In addition, each new Wholly-Owned Subsidiary
that is required to execute any Loan Document shall execute and deliver,
or cause to be executed and delivered, all other relevant documentation
of the type described in Section 5.01 as such new Subsidiary would have
had to deliver if such new Subsidiary were a Credit Party on the
Effective Date;
(g) the Nexstar Entities may make loans and advances to
their respective employees in an aggregate principal amount for all
Nexstar Entities not to exceed $500,000 at any time outstanding plus
amounts paid pursuant to the Management Loan Guaranty;
(h) (i) the Borrower may make intercompany loans and
advances to any Wholly-Owned Subsidiary of the Borrower which is a
Credit Party, (ii) prior to the effective time of the Mergers, Nexstar
Finance Holdings II may make loans to Nexstar
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Finance Holdings as permitted under Section 8.05(i) and (iii) Nexstar
Finance Holdings may make loans to the Borrower as permitted under
Section 8.05(i); and
(i) Indebtedness permitted under Section 8.05(j).
8.12 Limitation on Business Activities of the Nexstar Entities.
(a) The Parent Guarantors shall not engage in any business
activities other than the ownership of Capital Stock of other Parent
Guarantors or the Borrower and shall have no significant assets other
than such Capital Stock or liabilities other than the Indebtedness
permitted to be incurred by them pursuant to Section 8.05 (including by
waiver or consent) and liabilities for the payment of taxes.
(b) The Borrower and its Subsidiaries shall not engage in
any business other than the Television Broadcasting Business.
8.13 Sales or Issuances of Capital Stock. The Parent Guarantors and
the Borrower will not, and will not permit any of their respective Subsidiaries
to, sell or issue any of their Capital Stock to any Person; provided that
(a) the Ultimate Parent may sell or issue Capital Stock
(excluding Disqualified Stock and Capital Stock issued in connection
with the Initial Public Offering) and (i) the Net Issuance Proceeds,
minus permitted Restricted Payments therefrom in accordance with the
terms of Section 8.10 (if any) are applied as may be required by Section
2.07 and (ii) all remaining Net Issuance Proceeds are contributed to the
Borrower as cash common equity on terms and conditions acceptable to the
Administrative Agent,
(b) any Subsidiary of the Borrower may sell or issue Capital
Stock to the Borrower or a Wholly-Owned Subsidiary of the Borrower so
long as relevant provisions of the Security Documents and Section 7.16
are complied with in full,
(c) prior to the effective date of the Mergers, any Parent
Guarantor may sell or issue Capital Stock to any Wholly-Owned Subsidiary
of the Ultimate Parent so long as relevant provisions of the Security
Documents and Section 7.16 are complied with in full, and
(d) the Ultimate Parent may sell or issue Capital Stock in
connection with the Initial Public Offering, so long as
(i) the Initial Public Offering is an underwritten
public offering by the Ultimate Parent pursuant to an effective
registration statement filed with the Securities and Exchange
Commission and otherwise complies with the requirements of the
Securities Act of 1933, as amended and all other applicable
Requirements of Law,
(ii) the Initial Public Offering occurs pursuant to
documentation in form and substance satisfactory to the
Xxxxxxxxxxxxxx Xxxxx,
000
(xxx) the Initial Public Offering is consummated
immediately after the Mergers are consummated, and
(iv) upon the earlier of six months after the
consummation of the Initial Public Offering or the occurrence of
an Event of Default, all Net Issuance Proceeds from the Initial
Public Offering not previously used to make Restricted Payments
permitted by Section 8.10 or previously contributed to the
common equity of the Borrower, shall be contributed to the
Borrower as cash equity on terms and conditions acceptable to
the Administrative Agent; and
(e) so long as no Default or Event of Default exists after
giving effect to any such transaction, the Ultimate Parent may sell or
issue the Permitted Parent Preferred Equity; provided that upon the
earlier of six months after such sale or issuance of such Permitted
Parent Preferred Equity or the occurrence of an Event of Default, the
Net Issuance Proceeds from such sale or issuance of such Permitted
Parent Preferred Equity are contributed to the Borrower as cash common
equity on terms and conditions acceptable to the Administrative Agent.
8.14 No Waivers, Amendments or Restrictive Agreements. The Parent
Guarantors and the Borrower will not, and will not permit any of their
respective Subsidiaries to, (i) permit any waiver, supplement, modification or
amendment of the documentation relating to any Indebtedness of any Credit Party
having a principal balance (or a Guaranty Obligation with respect to
Indebtedness having a principal balance) of more than $500,000 or any indenture
or other agreement evidencing, creating or governing any of the foregoing
Indebtedness, in each case other than any such amendment, modification or change
which (A) would extend the maturity or reduce the amount of any payment of
principal thereof or which would reduce the rate or extend the date for payment
of interest thereon or (B) is not adverse to the interests of the Banks in any
material respect, so long as, in each case, no consent fee is payable in
connection therewith, (ii) except as necessary for the consummation of Mergers
in accordance with Section 8.04(g), modify their respective Charter Documents,
to the extent that any such modification of such Charter Documents would be
adverse to the Banks in any material respect or (iii) enter into any Contractual
Obligation which would prohibit or restrict the Subsidiaries of the Borrower or
Parent Guarantors from making Dividends or Restricted Payments to the Borrower.
ARTICLE IX.
EVENTS OF DEFAULT
9.01 Event of Default. Any of the following shall constitute an
"Event of Default":
(a) Non-Payment. The Borrower fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan or any
amount of any Letter of Credit Obligation, or (ii) within five days
after the same shall become due and payable, any interest, fee or any
other amount payable hereunder; or
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(b) Representation or Warranty. Any representation or
warranty by any Credit Party made or deemed made herein or in any other
Loan Document, or which is contained in any certificate, document or
financial or other statement by a Credit Party, or any of their
respective Responsible Officers, furnished at any time under this
Agreement or in or under any other Loan Document, shall prove to have
been incorrect in any material respect on or as of the date made or
deemed made; or
(c) Specific Defaults. Any Borrower or any Parent Guarantor
fails to perform or observe any term, covenant or agreement contained in
Sections 7.03(a), 7.05, 7.06, 7.07, 7.14 or Article VIII; or
(d) Other Defaults. Any Credit Party fails to perform or
observe any other term or covenant contained in this Agreement or any
other Loan Document, and such default shall continue unremedied for a
period of 30 days after the date upon which written notice thereof is
given to the Borrower by the Administrative Agent or any Bank; or
(e) Cross-Default. Any Credit Party (i) fails to make any
payment or dividend, as applicable, including, without limitation in
respect of Permitted Borrower Unsecured Indebtedness, Permitted Holdings
Unsecured Indebtedness, Permitted Borrower Subordinated Indebtedness,
Permitted Holdings Subordinated Indebtedness, Existing Parent Preferred
Equity or any other Indebtedness having an aggregate principal amount of
$3,500,000 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 Permitted Borrower
Unsecured Indebtedness, Permitted Holdings Unsecured Indebtedness,
Permitted Borrower Subordinated Indebtedness, Permitted Holdings
Subordinated Indebtedness, Existing Parent Preferred Equity or any other
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 is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, such Indebtedness to be declared to be
redeemed, repurchased or due and payable prior to its stated maturity;
or an Event of Default (as defined in the Mission Credit Agreement)
shall occur and be continuing under the Mission Credit Agreement; or
(f) Insolvency; Voluntary Proceedings. Any Credit Party (i)
commences any Insolvency Proceeding with respect to itself; or (ii)
takes any action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against any Credit Party or any writ,
judgment, warrant of attachment, execution or similar process, is issued
or levied against a substantial part of
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any Credit Party's 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) any
Credit Party admits 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)
any Credit Party acquiesces 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; or
(h) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could
reasonably be expected to result in liability of any Credit Party or an
ERISA Affiliate under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of
$1,000,000; (ii) the commencement or increase of contributions to, or
the adoption of or the amendment of a Pension Plan by any Credit Party
or an ERISA Affiliate which has resulted or could reasonably be expected
to result in an increase in Unfunded Pension Liability among all Pension
Plans with Unfunded Pension Liabilities in an aggregate amount in excess
of $1,000,000; (iii) any of the representations and warranties contained
in Section 6.07 shall cease to be true and correct in any material
respect and which cessation has resulted or could reasonably be expected
to result in a Material Adverse Effect; or (iv) any Credit Party or an
ERISA Affiliate shall fail to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan, which has resulted or could reasonably be expected to result in a
Material Adverse Effect; or
(i) Judgments. One or more non-interlocutory judgments,
orders or decrees shall be entered against any Credit Party 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 $3,500,000 or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of 30
days after the entry thereof; or
(j) Change of Control. Any Change of Control shall occur; or
(k) Guaranty Agreements. Any Guaranty Agreement or any
provision thereof shall for any reason cease to be in full force and
effect or valid and binding on or enforceable against any Credit Party
or a Credit Party shall so state in writing or bring an action to limit
its obligations or liabilities thereunder; or any Credit Party shall
fail to perform any of its obligations thereunder; or
(l) Security Documents. Any provision of any Security
Document other than the Mortgages shall (other than in accordance with
the terms thereof) cease to be in full force and effect or cease to
create a valid, security interest in the Collateral (other than an
immaterial portion of the Collateral) purported to be covered thereby or
such security interest shall cease to be a valid and first priority
security interest (subject only to Permitted Liens), or any party
thereto shall default in the performance of its obligations
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thereunder beyond applicable periods of grace, in each case other than
as a result of any action or inaction by the Collateral Agent, the
Administrative Agent, the Syndication Agent or any Bank; or
(m) Termination of Material Licenses. Any Credit Party shall
fail to have all required authorizations and licenses (including FCC
Licenses), the absence of which would have a Material Adverse Effect
individually or in the aggregate; or
(n) Termination of Network Affiliation Agreements. A Network
Affiliation Agreement with a Major Television Network (other than a
Network Affiliation Agreement that is not in respect of the primary
affiliation of a Station or a Network Affiliation Agreement which is
replaced by another network affiliation agreement with a Major
Television Network before it ceases to be effective) ceases to be in
full force and effect, if either (i) after giving effect to such
cessation, three or more Stations are Former Major Network Affiliates,
or (ii) the Station that is subject to such Network Affiliation
Agreement is a Significant Station at the time of such cessation.
9.02 Remedies. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the
Majority Banks:
(a) declare the Commitment of each Bank to make Loans and
any obligation of the Issuing Bank to issue Letters of Credit to be
terminated, whereupon such Commitments and obligation shall forthwith be
terminated;
(b) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts
owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by
each Credit Party;
(c) demand that the Borrower Cash Collateralize Letter of
Credit Obligations to the extent of outstanding and wholly or partially
undrawn Letters of Credit, whereupon the Borrower shall so Cash
Collateralize such Letters of Credit to that extent;
(d) exercise on behalf of itself, the Issuing Bank and the
Banks all rights and remedies available to it, the Issuing Bank and the
Banks under the Loan Documents or applicable laws;
(e) apply any cash collateral as provided in Section 3.07 to
the payment of outstanding Obligations; and/or
(f) take all actions to enforce the rights and remedies of
the Collateral Agent under the Security Documents;
provided, however, that upon the occurrence of any event specified above in
Section 9.01(f) or (g) with respect to any Credit Party (in the case of clause
(i) of paragraph (g) upon the expiration of the 60-day period mentioned
therein), the obligation of each Bank to make Loans and any obligation of the
Issuing Bank to issue Letters of Credit shall automatically terminate, and all
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reimbursement obligations under Letters of Credit and the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable without further act or notice by the
Administrative Agent, the Issuing Bank or any other Bank, which are hereby
expressly waived by the Borrower and each Parent Guarantor.
If at the end of any Fiscal Quarter there exists an Event of Default
with respect to one or more of Sections 8.09(a), (b), (c) and/or (d), 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, (i) cure such
Events of Default under Sections 8.09(a) and/or (b) by receiving equity
contributions from an ABRY Fund and/or Sook (and/or other Persons exercising
preemptive rights in connection with an equity issuance to one or more of them),
and applying the proceeds therefrom to repay Loans and/or to reduce Commitments
so that the Consolidated Total Leverage Ratio and the Consolidated Senior
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 relevant ratios set
forth in Sections 8.09(a) and (b); and (ii) cure such Event or Events of Default
under Sections 8.09(c) and/or (d) by receiving equity contributions from ABRY
Fund and/or Sook (and/or other Persons exercising preemptive rights in
connection with an issuance to one or more of them), and applying the proceeds
therefrom to repay Loans, the amount of which shall be added on a non-annualized
basis to increase Consolidated Operating Cash Flow for the Borrower and its
Subsidiaries for the Fiscal Quarter during which such Event of Default occurred
so that each of the Consolidated Interest Coverage Ratio and the Consolidated
Fixed Charge Coverage Ratio, in each case calculated on a Pro Forma Basis after
giving effect to any such addition and application of proceeds, as of the last
day of the Fiscal Quarter for which such Event of Default occurred, shall not be
less than the relevant ratios set forth in Section 8.09(c) and (d). The
provisions of this paragraph may not be utilized in consecutive quarters, nor
more than four times prior to the Maturity Date.
9.03 Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
9.04 Application of Funds. After the exercise of any remedy in
Section 9.02 (or after the Loans have automatically become immediately due and
payable and the Letter of Credit Obligations have automatically been required to
be Cash Collateralized as set forth in the proviso to Section 9.02, any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations
constituting fees, indemnities, expenses and other amounts (including
Attorney Costs and amounts payable under Article IV) payable to the
Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations
constituting fees, indemnities and other amounts (other than principal
and interest) payable to the Banks (including Attorney Costs and amounts
payable under Article IV), ratably among them in proportion to the
amounts described in this clause Second payable to them;
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Third, to payment of that portion of the Obligations
constituting accrued and unpaid interest on the Loans, ratably among the
Banks in proportion to the respective amounts described in this clause
Third payable to them;
Fourth, to payment of that portion of the Obligations
constituting unpaid principal of the Loans, ratably among the Banks in
proportion to the respective amounts described in this clause Fourth
held by them;
Fifth, to the Administrative Agent for the account of the
Issuing Bank, to Cash Collateralize that portion of Letter of Credit
Obligations comprised of the aggregate undrawn amount of Letters of
Credit; and
Sixth, to any remaining outstanding and unpaid Obligations,
ratably among the Banks in proportion to the respective amounts
described in this clause Sixth held by them; and
Last, the balance, if any, after all of the Obligations have
been indefeasibly paid in full, to the Borrower or as otherwise required
by applicable law.
Amounts used to Cash Collateralize the aggregate undrawn amount of Letters of
Credit pursuant to clause Fifth above shall be applied to satisfy drawings under
such Letters of Credit as they occur. If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the
order set forth above.
ARTICLE X.
THE ADMINISTRATIVE AGENT, THE ISSUING BANK, THE SYNDICATION
AGENT, THE LEAD ARRANGERS AND JOINT BOOK MANAGERS
10.01 Appointment and Authorization.
(a) Each of the Banks and the Issuing Bank hereby
irrevocably appoints, designates and authorizes the Administrative Agent
to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere herein or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Administrative
Agent have or be deemed to have any fiduciary relationship with any Bank
or participant, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or
any other Loan Document or otherwise exist against the Administrative
Agent. Without limiting the generality of the foregoing sentence, the
use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable
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Law. Instead, such term is used merely as a matter of market custom, and
is intended to create or reflect only an administrative relationship
between independent contracting parties.
(b) The Issuing Bank shall act on behalf of the Banks with
respect to any Letters of Credit issued by it and the documents
associated therewith, and the Issuing Bank shall have all of the
benefits and immunities (i) provided to the Administrative Agent in this
Article X with respect to any acts taken or omissions suffered by the
Issuing Bank in connection with Letters of Credit issued by it or
proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if
the term "Administrative Agent" as used in this Article X and in the
definition of "Agent-Related Person" included the Issuing Bank with
respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the Issuing Bank.
(c) Notwithstanding any provision to the contrary contained
elsewhere herein or in any other Loan Document, the Syndication Agent
shall not have any duties or responsibilities, except those expressly
set forth herein, nor shall the Syndication Agent have or be deemed to
have any fiduciary relationship with any Bank or participant, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document
or otherwise exist against the Syndication Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" herein
and in the other Loan Documents with reference to the Syndication Agent
(if applicable) is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
10.02 Delegation of Duties. The Administrative Agent and the
Syndication Agent may execute any of their duties under this Agreement or any
other Loan Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
10.03 Liability of Agents. No Agent-Related Person shall (a) be liable
for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any of the Banks or participant for any recital, statement,
representation or warranty made by any Credit Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
any Credit Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Bank or Participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained
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in, or conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of any Credit Party or any Affiliate thereof.
10.04 Reliance by the Agents.
(a) The Agents shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, electronic mail
message, statement or other document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by the
proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to any Credit Party), independent accountants
and other experts selected by the Administrative Agent. The Agents shall
be fully justified in failing or refusing to take any action under any
Loan Document unless it shall first receive such advice or concurrence
of the Majority Banks as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Banks against any
and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Agents shall in all
cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request
or consent of the Majority Banks (or such greater number of Banks as may
be expressly required hereby in any instance) and such request and any
action taken or failure to act pursuant thereto shall be binding upon
all the Banks.
(b) For purposes of determining compliance with the
conditions specified in Sections 5.01 and 5.02, each Bank that has
signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or
satisfactory to a Bank unless the Administrative Agent shall have
received notice from such Bank prior to the proposed Effective Date
specifying its objection thereto.
10.05 Notice of Default. The Agents shall not be deemed to have
knowledge or notice of the occurrence of any Default, except with respect to
defaults in the payment of principal, interest and fees required to be paid to
the Administrative Agent for the account of the Banks, unless the Administrative
Agent shall have received written notice from a Bank or the Borrower referring
to this Agreement, describing such Default and stating that such notice is a
"notice of default." The Administrative Agent will notify the Banks of its
receipt of any such notice. The Administrative Agent shall take such action with
respect to such Default as may be directed by the Majority Banks in accordance
with Article IX; provided, however, that unless and until the Administrative
Agent has received any such direction, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable or in the best interest of
the Banks.
10.06 Credit Decision; Disclosure of Information by the Agents. Each
Bank acknowledges that no Agent-Related Person has made any representation or
warranty to it, and that no act by the Administrative Agent hereafter taken,
including any consent to and acceptance of any assignment or review of the
affairs of any Credit Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Bank as
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to any matter, including whether Agent-Related Persons have disclosed material
information in their possession. Each Bank represents to the Agents that it has,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Credit
Parties and their respective Subsidiaries, and all applicable bank or other
regulatory Laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Borrower
and the other Credit Parties hereunder. Each Bank also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Credit Parties. Except for
notices, reports and other documents expressly required to be furnished to the
Banks by the Administrative Agent herein, the Administrative Agent shall not
have any duty or responsibility to provide any Bank with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Credit Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.
10.07 Indemnification of Administrative Agent. WHETHER OR NOT THE
TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED, THE BANKS SHALL INDEMNIFY UPON
DEMAND EACH AGENT-RELATED PERSON (TO THE EXTENT NOT REIMBURSED BY OR ON BEHALF
OF ANY CREDIT PARTY AND WITHOUT LIMITING THE OBLIGATION OF ANY CREDIT PARTY TO
DO SO), PRO RATA, AND HOLD HARMLESS EACH AGENT-RELATED PERSON FROM AND AGAINST
ANY AND ALL INDEMNIFIED LIABILITIES INCURRED BY IT (WHETHER OR NOT ARISING OUT
OF THE NEGLIGENCE OF SUCH AGENT-RELATED PERSON); PROVIDED, HOWEVER, THAT NO BANK
SHALL BE LIABLE FOR THE PAYMENT TO ANY AGENT-RELATED PERSON OF ANY PORTION OF
SUCH INDEMNIFIED LIABILITIES TO THE EXTENT DETERMINED IN A FINAL, NONAPPEALABLE
JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH
AGENT-RELATED PERSON'S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; PROVIDED,
HOWEVER, THAT NO ACTION TAKEN IN ACCORDANCE WITH THE DIRECTIONS OF THE MAJORITY
BANKS SHALL BE DEEMED TO CONSTITUTE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT FOR
PURPOSES OF THIS SECTION. WITHOUT LIMITATION OF THE FOREGOING, EACH BANK SHALL
REIMBURSE THE ADMINISTRATIVE AGENT UPON DEMAND FOR ITS RATABLE SHARE OF ANY
COSTS OR OUT-OF-POCKET EXPENSES (INCLUDING ATTORNEY COSTS) INCURRED BY THE
ADMINISTRATIVE AGENT IN CONNECTION WITH THE PREPARATION, EXECUTION, DELIVERY,
ADMINISTRATION, MODIFICATION, AMENDMENT OR ENFORCEMENT (WHETHER THROUGH
NEGOTIATIONS, LEGAL PROCEEDINGS OR OTHERWISE) OF, OR LEGAL ADVICE IN RESPECT OF
RIGHTS OR RESPONSIBILITIES UNDER, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, OR
ANY DOCUMENT CONTEMPLATED BY OR REFERRED TO HEREIN, TO THE EXTENT THAT THE
ADMINISTRATIVE AGENT IS NOT REIMBURSED FOR SUCH EXPENSES BY OR ON BEHALF OF THE
BORROWER. THE UNDERTAKING IN THIS
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SECTION SHALL SURVIVE TERMINATION OF THE COMMITMENTS, THE PAYMENT OF ALL OTHER
OBLIGATIONS AND THE RESIGNATION OF THE ADMINISTRATIVE AGENT.
10.08 Administrative Agent in Individual Capacity. Bank of America and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
each of the Credit Parties and their respective Affiliates as though Bank of
America were not the Administrative Agent or the Issuing Bank hereunder and
without notice to or consent of the Banks. The Banks acknowledge that, pursuant
to such activities, Bank of America or its Affiliates may receive information
regarding any Credit Party or its Affiliates (including information that may be
subject to confidentiality obligations in favor of such Credit Party or such
Affiliate) and acknowledge that the Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Loans, Bank
of America shall have the same rights and powers under this Agreement as any
other Bank and may exercise such rights and powers as though it were not the
Administrative Agent or the Issuing Bank, and the terms "Bank" and "Banks"
include Bank of America in its individual capacity.
10.09 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Banks; provided that
any such resignation by Bank of America shall also constitute its resignation as
Issuing Bank. If the Administrative Agent resigns under this Agreement, the
Majority Banks shall appoint from among the Banks a successor administrative
agent for the Banks, which successor administrative agent shall be consented to
by the Borrower at all times other than during the existence of an Event of
Default (which consent of the Borrower shall not be unreasonably withheld or
delayed). If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Banks, and subject
to the approval of the Borrower if no Event of Default has occurred and is
continuing, which approval the Borrower will not unreasonably withhold or delay,
a successor administrative agent from among the Banks. Upon the acceptance of
its appointment as successor administrative agent hereunder, the Person acting
as such successor administrative agent shall succeed to all the rights, powers
and duties of the retiring Administrative Agent, and Issuing Bank and the
respective terms "Administrative Agent" and "Issuing Bank" shall mean such
successor administrative agent and Letter of Credit issuer, the retiring
Administrative Agent's appointment, powers and duties as Administrative Agent
shall be terminated and the retiring Issuing Bank's rights, powers and duties as
such shall be terminated, without any other or further act or deed on the part
of such retiring Issuing Bank or any other Bank, other than the obligation of
the successor Issuing Bank to issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or to make
other arrangements satisfactory to the retiring Issuing Bank to effectively
assume the obligations of the retiring Issuing Bank with respect to such Letters
of Credit. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article X and Sections 11.04 and
11.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Banks shall perform all of the
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duties of the Administrative Agent hereunder until such time, if any, as the
Majority Banks appoint a successor agent as provided for above.
10.10 Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Credit Party, the Administrative Agent (irrespective
of whether the principal of any Loan or Letter of Credit Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, Letter
of Credit Obligations and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable
in order to have the claims of the Banks and the Administrative Agent
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Banks and the Administrative Agent and
their respective agents and counsel and all other amounts due the Banks
and the Administrative Agent under Sections 3.08, 2.09 and 11.04)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Bank to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Banks, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Bank any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Bank or to authorize the Administrative Agent
to vote in respect of the claim of any Bank in any such proceeding.
10.11 Collateral and Guaranty Matters. The Banks irrevocably authorize
the Administrative Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or held
by the Administrative Agent under any Loan Document (i) upon termination
of the Commitments and payment in full of all Obligations (other than
contingent indemnification obligations) and the expiration or
termination of all Letters of Credit, (ii) that is sold or to be sold as
part of or in connection with any sale permitted hereunder (including by
waiver or consent) or under any other Loan Document, or (iii) subject to
Section 11.01, if approved, authorized or ratified in writing by the
Majority Banks;
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(b) to subordinate any Lien on any property granted to or
held by the Administrative Agent under any Loan Document to the holder
of any Lien on such property that is permitted by Section 8.02(h)
(including by waiver or consent); and
(c) to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder (including by waiver or consent).
Upon request by the Administrative Agent at any time, the Majority Banks
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this Section
10.11.
10.12 Other Agents; Arrangers and Managers. Except as specifically set
forth herein, none of the Banks or other Persons identified on the facing page
or signature pages of this Agreement as a "syndication agent," "documentation
agent," "co-agent," "book manager," "lead manager," "arranger," "joint lead
arranger" or "co-arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Banks, those applicable to all Banks as such. Without limiting the foregoing,
none of the Banks or other Persons so identified shall have or be deemed to have
any fiduciary relationship with any Bank. Each Bank acknowledges that it has not
relied, and will not rely, on any of the Banks or other Persons so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE XI.
MISCELLANEOUS
11.01 Amendment and Waivers.
(a) Subject to the terms and provisions of Sections 2.01(c)
and 2.16, no amendment or waiver of any provision of this Agreement or
any other Loan Document and no consent with respect to any departure by
the Borrower or any other Credit Party therefrom, shall be effective
unless the same shall be in writing and signed by the Borrower, each
Credit Party affected thereby, the Majority Revolver Banks and the
Majority Banks and acknowledged by the Administrative Agent, and then
such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided
that, notwithstanding the foregoing,
(i) no such waiver, amendment, or consent shall,
unless in writing and signed by the Borrower, the Administrative
Agent and each Bank affected thereby;
(A) extend the date for or change the amount
of any principal installment due on the Loans under
Section 2.08(a), or postpone or delay any date for any
payment of interest or fees due to the Banks (or any of
them) under any other Loan Document;
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(B) increase (except as provided in Sections
2.01(c) and 2.16) or extend the Commitment of such Bank,
or reinstate any Commitment terminated pursuant to
Section 9.02(a), except as provided in Section 11.07;
(C) increase (except as provided in Sections
2.01(c) and 2.16) or extend the Aggregate Commitment;
(D) reduce the principal of, or the rate of
interest specified herein on any Loan or Letter of
Credit Borrowing (other than with respect to
post-default rates), or of any fees or other scheduled
amounts payable hereunder (excluding any mandatory
prepayments pursuant to Section 2.07) or under any other
Loan Document or reduce the Applicable Margin provided
for herein;
(E) reduce the percentage of the Commitments
or of the aggregate unpaid principal amount of the Loans
which shall be required for the Banks or any of them to
take any action hereunder;
(F) amend this Section 11.01, change the
percentage set forth in definition of the term "Majority
Banks", change the percentage set forth in the
definition of the term "Supermajority Banks" or amend
any provision of this Agreement expressly requiring the
consent of all the Banks in order to take or refrain
from taking any action;
(G) release the guaranty of any Guarantor
under its Guaranty Agreement, except in accordance with
the express provisions hereof or thereof, or release all
or substantially all of the Collateral except, in all
such cases in accordance with the express provisions of
this Agreement or the Security Documents;
(H) add any requirements to obtain the
consent of any additional Person or Persons to affect
any assignment or participation pursuant to Section
11.07; or
(I) extend any Stated Maturity Date; and
(ii) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Bank in addition to the
Majority Banks, each affected Bank or all the Banks, as the case
may be, affect the rights or duties of the Issuing Bank under
this Agreement or any Letter of Credit Related Document; and
(iii) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to
the Majority Banks, each affected Bank or all the Banks, as the
case may be, affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document; and
(iv) no amendment, waiver or consent shall, unless in
writing and signed by the Collateral Agent in addition to the
Majority Banks or all the Banks, as the case may be, affect
the rights or duties of the Collateral Agent under the
Security Documents or any other Loan Document; and
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(v) with respect to any Incremental Facility, the
Incremental Loan Amendment, and any waiver, consent or other
amendment to any term or provision of this Agreement necessary
or advisable to effectuate any Incremental Facility or any
provision thereof in accordance with the terms of, or the intent
of, this Agreement, shall be effective when executed by the
Borrower, the Administrative Agent and each Incremental Term
Bank or Incremental Revolving Bank making an Incremental
Revolving Commitment or Incremental Term Commitment; and
(vi) with respect to reallocation of the Revolving
Commitment in connection with the Revolver Reallocation Letter,
the Revolver Reallocation Letter and any waiver, consent or
other amendment to any term or provision of this Agreement
necessary or advisable to effectuate any reallocation of the
Revolving Commitment in accordance with the terms or the intent
of the Revolver Reallocation Letter, shall be effective when
executed by the Borrower, the Administrative Agent and the
Majority Revolver Banks;
(vii) Interest Rate Protection Agreements, Incremental
Loan Amendments (and related Incremental Loan documentation) and
the Revolver Reallocation Letter (and related documentation)
shall not be deemed to be Loan Documents for purposes of this
Section 11.01(a); and
(viii) no amendment, waiver or consent shall, unless in
writing and signed by the Borrower, the Administrative Agent and
the Supermajority Banks, waive, postpone or delay any mandatory
prepayment pursuant to Section 2.07.
(b) If, in connection with any proposed change, waiver,
discharge or any termination to any of the provisions of this Agreement
as contemplated by clauses (ii) through (viii), inclusive, of the second
proviso to Section 11.01(a), the consent of the Majority Banks is
obtained but the consent of one or more other Banks whose consent is
required is not obtained, then the Borrower shall have the right, so
long as all non-consenting Banks whose individual consent is required
are treated the same, to replace each such non-consenting Bank or Banks
with one or more Replacement Banks pursuant to Section 4.08(b) so long
as at such time of such replacement, each such Replacement Bank consents
to the proposed change, waiver, discharge or termination.
11.02 Notices.
(a) All notices, requests and other communications provided
for hereunder shall be in writing (including, unless the context
expressly otherwise provides, facsimile transmission) and mailed,
transmitted by facsimile or delivered, (i) if to the Borrower and/or the
Parent Guarantors, to the address or facsimile number specified for
notices on
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the applicable signature page hereof or to such other address or
facsimile number as shall be designated by such party in a notice to the
other parties; and (ii) if to the Administrative Agent, the Issuing Bank
or any Bank, to the notice address set forth on Schedule 1.01(A) or to
such other address as shall be designated by such party in a notice to
the other parties.
(b) All such notices, requests and communications shall be
effective when delivered or transmitted by facsimile machine,
respectively, provided that any matter transmitted by facsimile (i)
shall be immediately confirmed by a telephone call to the recipient at
the number specified on the applicable signature page hereof or on
Schedule 1.01(A), and (ii) shall be followed promptly by a hard copy
original thereof; except that notices to the Administrative Agent shall
not be effective until actually received by the Administrative Agent,
and notices pursuant to Article III to the Issuing Bank shall not be
effective until actually received by the Issuing Bank.
(c) The Parent Guarantors and the Borrower acknowledge and
agree that any agreement of the Administrative Agent, the Issuing Bank
and the Banks set forth in Articles II and III herein to receive certain
notices by telephone and facsimile is solely for the convenience and at
the request of the Parent Guarantors and the Borrower. The
Administrative Agent, the Issuing Bank and the Banks shall be entitled
to rely on the authority of any Person purporting to be a Person
authorized by any Parent Guarantor or the Borrower to give such notice
and the Administrative Agent, the Issuing Bank and the Banks shall not
have any liability to the Parent Guarantors or the Borrower or any other
Person on account of any action taken or not taken by the Administrative
Agent, the Issuing Bank or the Banks in reliance upon such telephonic or
facsimile notice. The obligation of the Borrower to repay the Loans and
drawings under Letters of Credit shall not be affected in any way or to
any extent by any failure by the Administrative Agent, the Issuing Bank
and the Banks to receive written confirmation of any telephonic or
facsimile notice or the receipt by the Administrative Agent, the Issuing
Bank and the Banks of a confirmation which is at variance with the terms
understood by the Administrative Agent, the Issuing Bank or the Banks to
be contained in the telephonic or facsimile notice.
11.03 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent, the Issuing Bank
or any Bank, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any other rights, remedies, powers and/or privileges available at law or in
equity.
11.04 Costs and Expenses. The Borrower shall, whether or not the
transactions contemplated hereby shall be consummated:
(a) pay or reimburse on demand all reasonable costs and
expenses incurred by the Administrative Agent in connection with the
development, preparation, negotiation, delivery, administration,
syndication of the Commitments under and execution of, and
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any amendment, supplement, waiver, consent or modification to (in each
case, whether or not consummated), this Agreement, any other Loan
Document and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby
and thereby, including the Attorney Costs incurred by the Administrative
Agent with respect thereto;
(b) pay or reimburse each Bank, the Issuing Bank and the
Administrative Agent on demand for all reasonable costs and expenses
incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies (including in
connection with any "workout" or restructuring regarding the
Obligations, and including in any Insolvency Proceeding) under this
Agreement, any other Loan Document, and any such other documents,
including Attorney Costs or the cost of any consultants incurred by the
Administrative Agent and any Bank; and
(c) except as otherwise provided in Section 7.12, pay or
reimburse the Administrative Agent and the Issuing Bank on demand for
all appraisal (including, without duplication, the allocated cost of
internal appraisal services), audit, environmental inspection and review
(including, without duplication, the allocated cost of such internal
services), search, filing, recording, title insurance and appraisal
charges and fees and taxes related thereto, and other out-of-pocket
expenses, incurred or sustained by the Administrative Agent and the cost
of independent public accountants and other outside experts retained by
the Administrative Agent or any Bank, in each case in connection with
the matters referred to Section 11.04(a) and (b). All amounts under this
Section 11.04 shall be payable within ten Business Days after demand
therefor. The agreements in this Section shall survive the termination
of the Commitments and repayment of all other Obligations.
11.05 INDEMNITY. WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY
ARE CONSUMMATED, THE BORROWER SHALL INDEMNIFY AND HOLD HARMLESS EACH
AGENT-RELATED PERSON, EACH BANK AND THEIR AFFILIATES, DIRECTORS, OFFICERS,
EMPLOYEES, COUNSEL, AGENTS, TRUSTEES, ADVISORS AND ATTORNEYS-IN-FACT (EACH, AN
"INDEMNIFIED PERSON") FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES AND DISBURSEMENTS (INCLUDING ATTORNEY COSTS) OF ANY KIND OR NATURE
WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST
ANY SUCH INDEMNIFIED PERSON IN ANY WAY RELATING TO OR ARISING OUT OF OR IN
CONNECTION WITH (A) THE EXECUTION, DELIVERY, ENFORCEMENT, PERFORMANCE OR
ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENT, LETTER OR INSTRUMENT
DELIVERED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBY, (B) ANY COMMITMENT, LOAN
OR LETTER OF CREDIT OR THE USE OR PROPOSED USE OF THE PROCEEDS THEREFROM
(INCLUDING ANY REFUSAL BY THE ISSUING BANK TO HONOR A DEMAND FOR PAYMENT UNDER A
LETTER OF CREDIT IF THE DOCUMENTS PRESENTED IN CONNECTION WITH SUCH DEMAND FOR
PAYMENT DO NOT STRICTLY COMPLY WITH THE TERMS OF SUCH
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LETTER OF CREDIT), (C) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS
MATERIALS ON OR FROM ANY PROPERTY CURRENTLY OR FORMERLY OWNED OR OPERATED BY THE
BORROWER, ANY SUBSIDIARY OR ANY OTHER CREDIT PARTY, OR ANY ENVIRONMENTAL CLAIM
RELATED IN ANY WAY TO THE BORROWER, ANY SUBSIDIARY OR ANY OTHER CREDIT PARTY OR
(D) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING
RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY (INCLUDING ANY INVESTIGATION OF, PREPARATION FOR, OR DEFENSE OF ANY
PENDING OR THREATENED CLAIM, INVESTIGATION, LITIGATION OR PROCEEDING) AND
REGARDLESS OF WHETHER ANY INDEMNIFIED PERSON IS A PARTY THERETO (ALL OF THE
FOREGOING, COLLECTIVELY, THE "INDEMNIFIED LIABILITIES") IN ALL CASES, WHETHER OR
NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE NEGLIGENCE OF SUCH
INDEMNIFIED PERSON; PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY
INDEMNIFIED PERSON, BE AVAILABLE TO THE EXTENT THAT SUCH LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS,
SUITS, COSTS, EXPENSES OR DISBURSEMENTS ARE DETERMINED BY A COURT OF COMPETENT
JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PERSON. NO INDEMNIFIED
PERSON SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY OTHERS OF ANY
INFORMATION OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR OTHER SIMILAR
INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT, NOR SHALL
ANY INDEMNIFIED PERSON HAVE ANY LIABILITY FOR ANY INDIRECT OR CONSEQUENTIAL
DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ARISING OUT OF
ITS ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH (WHETHER BEFORE OR AFTER THE
EFFECTIVE DATE). ALL AMOUNTS DUE UNDER THIS SECTION 11.05 SHALL BE PAYABLE
WITHIN TEN BUSINESS DAYS AFTER DEMAND THEREFOR. THE AGREEMENT IN THIS SECTION
SHALL SURVIVE THE RESIGNATION OF THE ADMINISTRATIVE AGENT, THE REPLACEMENT OF
ANY BANK, THE TERMINATION OF THE COMMITMENTS AND THE REPAYMENT, SATISFACTION OR
DISCHARGE OF ALL THE OTHER OBLIGATIONS.
11.06 Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower (other than as a
result of the Borrower Merger) may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent and each Bank.
11.07 Assignments, Participations, etc.
(a) Any Bank may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Revolving Commitment,
Incremental Revolving Commitment (if any) and the Loans (including for
purposes of this subsection (a), participations in Letter of Credit
131
Obligations) at the time owing to it); provided, however, that (i)
except in the case of an assignment of the entire remaining amount of
the assigning Bank's Commitment and the Loans at the time owing to it,
after giving effect to any such assignment, no Bank, Affiliate of a Bank
or an Approved Fund with respect to a Bank shall hold Mission Loans and
Loans hereunder aggregating less than $10,000, determined as of the date
the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified
in the Assignment and Assumption, as of the Trade Date; (ii) each such
assignment of Loans hereunder must be consummated simultaneously with an
assignment among the same parties of a corresponding percentage of the
corresponding Class of Mission Loans and/or commitments (as applicable)
under the Mission Credit Agreement in accordance with the terms of the
Mission Credit Agreement; (iii) each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Bank's rights
and obligations under this Agreement with respect to the Loans or the
Commitment assigned; (iv) any assignment of a Commitment must be
approved by the Administrative Agent and the Issuing Bank unless the
Person that is the proposed assignee is itself a Bank (whether or not
the proposed assignee would otherwise qualify as an Eligible Assignee);
and (v) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided that
with respect to any assignment between a Bank and an Affiliate of such
Bank or an Approved Fund of such Bank, such processing and recordation
fee shall be in the amount of $1,500. Only one such fee shall be payable
with respect to the assignment of Loans hereunder and the simultaneous
assignment among the same parties of a corresponding percentage of the
corresponding Class of Mission Loans and/or commitments (as applicable)
under the Mission Credit Agreement. The Borrower, the Issuing Bank 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 of a Bank or any
Approved Fund or any assignment that any Bank may from time to make to
any other Bank or any Affiliate of a Bank or any Approved Fund 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. Subject to acceptance and recording thereof by the
Administrative Agent pursuant to subsection (b) of this Section, from
and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Bank under this
Agreement, and the assigning Bank thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment
and Assumption covering all of the assigning Bank's rights and
obligations under this Agreement, such Bank shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections
4.01, 4.03, 4.04, 11.04 and 11.05 with respect to facts and
circumstances occurring prior to the effective date of such assignment).
Upon request, the Borrower (at its expense) shall execute and deliver a
Note to the assignee Bank. Any assignment or transfer by a Bank of
rights or obligations under this Agreement that does not comply with
this subsection shall be treated for
132
purposes of this Agreement as a sale by such Bank of a participation in
such rights and obligations in accordance with subsection (c) of this
Section.
(b) The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at the Administrative
Agent's Payment Office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and
addresses of the Banks, and the Commitments of, and principal amounts of
the Loans and Letter of Credit Obligations owing to, each Bank pursuant
to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative
Agent and the Banks may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Bank hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Bank,
at any reasonable time and from time to time upon reasonable prior
notice.
(c) Any Bank may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations
to any Person (other than a natural person or the Borrower or any of the
Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all or
a portion of such Bank's rights and/or obligations under this Agreement
(including all or a portion of its Commitments and/or the Loans
(including such Bank's participations in Letter of Credit Obligations)
owing to it); provided, however, that (i) such Bank's obligations under
this Agreement shall remain unchanged, (ii) such Bank shall remain
solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Issuing Bank and the
Administrative Agent and the other Banks shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement and the other Loan Documents. Any
agreement or instrument pursuant to which a Bank sells such a
participation shall provide that such Bank shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Bank will not, without the consent
of the Participant, agree to any amendment, waiver or other modification
described in clause (i), subsections (B), (D) and (I) of the first
proviso to Section 11.01 that directly affects such Participant. Subject
to subsection (e) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 4.01, 4.03 and
4.04 to the same extent as if it were a Bank and had acquired its
interest by assignment pursuant to subsection (d) of this Section. To
the extent permitted by law, each Participant also shall be entitled to
the benefits of Section 11.09 as though it were a Bank, provided such
Participant agrees to be subject to Section 4.04(f) as though it were a
Bank.
(d) A Participant shall not be entitled to receive any
greater payment under any provision of this Agreement than the
applicable Bank would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's prior
written consent. A Participant which is organized under the laws of a
jurisdiction outside the United States shall not be entitled to the
benefits of Section 4.01 unless the Borrower is notified of the
133
participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 4.04(f) as though it
were a Bank.
(e) Any Bank may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Bank,
including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment shall release
such Bank from any of its obligations hereunder or substitute any such
pledgee or assignee for such Bank as a party hereto.
(f) As used herein, the following terms have the following
meanings:
"Eligible Assignee" means (a) a Bank; (b) an Affiliate
of a Bank; (c) an Approved Fund; and (d) any other Person (other
than a natural person) approved by (i) the Administrative Agent
and the Issuing Bank, and (ii) unless an Event of Default has
occurred and is continuing, the Borrower (each such approval not
to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, "Eligible Assignee" shall not
include the Borrower or any of the Borrower's Affiliates or
Subsidiaries.
"Fund" means any Person (other than a natural person)
that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions
of credit in the ordinary course of its business.
"Approved Fund" means any Fund that is administered or
managed by (a) a Bank, (b) an Affiliate of a Bank or (c) an
entity or an Affiliate of an entity that administers or manages
a Bank.
(g) Notwithstanding anything to the contrary contained
herein, any Bank that is a Fund may create a security interest in all or
any portion of the Loans owing to it and the Note, if any, held by it to
the trustee for holders of obligations owed, or securities issued, by
such Fund as security for such obligations or securities, provided that
unless and until such trustee actually becomes a Bank in compliance with
the other provisions of this Section 11.07 regarding assignments in all
respects, (i) no such pledge described in the immediately preceding
clause shall release the pledging Bank from any of its obligations under
the Loan Documents and (ii) such trustee shall not be entitled to
exercise any of the rights of a Bank under the Loan Documents even
though such trustee may have acquired ownership rights with respect to
the pledged interest through foreclosure or otherwise.
11.08 Confidentiality. The Administrative Agent, the Collateral Agent,
the Issuing Bank, the Syndication Agent and each Bank agree to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all information identified as "confidential" by any Credit Party and provided to
it by any Credit Party or any Subsidiary of any Credit Party, or by the
Administrative Agent on any Credit Party's or such Subsidiary's behalf, in
connection with this Agreement or any other Loan Document, and neither it nor
any of its Affiliates shall use any such information for any purpose or in any
manner other than pursuant to the terms contemplated
134
by this Agreement; except to the extent such information (a) was or becomes
generally available to the public other than as a result of a disclosure by such
Person or any of its Affiliates, or (b) was or becomes available on a
non-confidential basis from a source other than any Credit Party, provided that
such source is not bound by a confidentiality agreement with any Credit Party,
known to such Person; provided further, however, that the Administrative Agent,
the Collateral Agent, the Issuing Bank, the Syndication Agent and each Bank may
disclose such information (i) at the request or pursuant to any requirement of
any Governmental Authority to which the Bank is subject or in connection with an
examination of such Bank by any such authority; (ii) pursuant to subpoena or
other court process; (iii) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (iv) to the extent reasonably
required in connection with any litigation or proceeding to which such Person or
its Affiliates may be party; (v) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other Loan Document; and
(vi) to such Person's independent auditors, creditors, other professional
advisors and employees of such Person's Bank Affiliates (or any Affiliate of
such Person engaged in capital market transactions generally) retained by such
Person in connection with this Agreement. Notwithstanding the foregoing, the
Borrower authorizes the Administrative Agent, the Collateral Agent, the Issuing
Bank, the Syndication Agent and each Bank to disclose to any Participant, any
Eligible Assignee or any direct or indirect counter-party in any Interest Rate
Protection Agreement to which the disclosing Bank is a party (each, a
"Transferee") and to any prospective Transferee, such financial and other
information in such Person's possession concerning the Credit Parties or their
respective Subsidiaries which has been delivered to Administrative Agent or the
Banks pursuant to this Agreement or which has been delivered to the
Administrative Agent or the Banks by the Credit Parties in connection with such
Person's credit evaluation of the Credit Parties prior to entering into this
Agreement; provided that, unless otherwise agreed by the Borrower, such
Transferee agrees in writing to the Borrower to keep such information
confidential to the same extent required of the Banks hereunder.
11.09 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default occurs and is continuing, each Bank is
authorized at any time and from time to time, without prior notice to any Credit
Party, any such notice being hereby waived to the fullest extent permitted by
law, to set off and apply, to the extent permitted by applicable law, any and
all deposits (general or special, time or demand, provisional or final) at any
time held by, and other indebtedness at any time owing to, such Bank to or for
the credit or the account of any Credit Party against any and all Obligations
owing to such Bank, now or hereafter existing, irrespective of whether or not
the Administrative Agent or such Bank shall have made demand under this
Agreement or any other Loan Document and although such Obligations may be
contingent or unmatured. Each Bank agrees promptly to notify the Borrower and
the Administrative Agent after any such set-off and application made by such
Bank; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each Bank under this
Section 11.09 are in addition to the other rights and remedies (including other
rights of set-off) which such Bank may have.
11.10 Notification of Addresses, Lending Offices, etc. Each Bank shall
notify the Administrative Agent in writing of any changes in the address to
which notices to the Bank should be directed, of addresses of its Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
135
11.11 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement in any number of separate counterparts, each of
which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Borrower and the Administrative Agent.
11.12 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
11.13 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the parties hereto and their
permitted successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Agreement or any of the other Loan Documents.
None of the Administrative Agent, the Syndication Agent the Issuing Bank or any
Bank shall have any obligation to any Person not a party to this Agreement or
any other Loan Document.
11.14 Governing Law and Jurisdiction; Waiver of Trial by Jury.
(a) GOVERNING LAW.THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT AND
EACH BANK SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) JURISDICTION.PURSUANT TO SECTION 5-1402 OF THE NEW YORK
GENERAL OBLIGATION LAW, ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT AND ANY OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS
OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. TO THE
EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN
SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT
RELATED THERETO. THE PARTIES HERETO EACH WAIVE PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER
MEANS PERMITTED BY NEW YORK LAW.
(c) WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY OF ANY
136
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT
OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR
THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE;
AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY A COURT TRIAL WITHOUT A
JURY, ANY THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE
OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
11.15 Effectiveness.
(a) This Agreement shall become effective on the date (the
"Effective Date") on which (i) each Parent Guarantor, the Borrower, the
Administrative Agent, the Issuing Bank, the Syndication Agent, and each
Bank shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered (including by way of
facsimile device) the same to the Administrative Agent at its Notice
Office and (ii) the conditions contained in Sections 5.01 and 5.02 shall
have been satisfied or deemed satisfied pursuant to Section 10.04(b) (or
waived by the Majority Banks, or to the extent required by Section
11.01, all the Banks). Unless the Administrative Agent has received
actual notice from any Bank that the conditions contained in Sections
5.01 and 5.02 have not been met to its satisfaction in accordance with
Section 10.04(b), upon the satisfaction of the condition described in
clause (i) of the immediately preceding sentence and upon the
Administrative Agent's good faith determination that the conditions
described in clause (ii) of the immediately preceding sentence have been
met, then the Effective Date shall have been deemed to have occurred,
regardless of any subsequent determination that one or more of the
conditions thereto had not been met (although the occurrence of the
Effective Date shall not release any Parent Guarantor or the Borrower
from any liability for failure to satisfy one or more of the applicable
conditions contained in Sections 5.01 and 5.02).
(b) On the Effective Date, each Bank shall deliver to the
Administrative Agent for the account of the Borrower an amount equal to
the amount by which the principal amount of Loans to be made by such
Bank on the Effective Date exceeds the amount of the Loans of such Bank
outstanding under the Existing Nexstar Credit Agreement on the Effective
Date, plus any accrued but unpaid interest with respect thereto.
Notwithstanding anything to the contrary contained in this Section
11.15(b), in satisfying the foregoing condition, unless the
Administrative Agent shall have been notified by any Bank prior to the
occurrence of the Effective Date that such Bank does not intend to make
available to the Administrative Agent such Bank's Term B Loans and
Revolving Loans required to be made by it on such date, then the
Administrative Agent may, in reliance on such assumption, make available
to the Borrower the corresponding
137
amounts and the making available by the Administrative Agent of such
amounts shall satisfy the condition contained in this Section 11.15.
(c) This Agreement constitutes an amendment and restatement
of the Existing Nexstar Credit Agreement and as such supersedes the
Existing Nexstar Credit Agreement in its entirety; provided, however,
that in no event shall the Liens or Guaranty Agreements securing the
Existing Nexstar Credit Agreement or the obligations thereunder be
deemed affected hereby, it being the intent and agreement of the
Ultimate Parent, the Borrower and the Subsidiaries of the Ultimate
Parent parties hereto that the Guaranty Agreements and the Liens on the
Collateral granted to secure the obligations of the Ultimate Parent, the
Borrower and the Subsidiaries of the Ultimate Parent in connection with
the Existing Nexstar Credit Agreement and/or the Guaranty Agreements,
shall not be extinguished and shall remain valid, binding and
enforceable securing the obligations under the Existing Nexstar Credit
Agreement as amended and restated hereby.
11.16 Survival of Representations and Warranties. All representations
and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Bank, regardless of any investigation made by the
Administrative Agent or any Bank or on their behalf and notwithstanding that the
Administrative Agent may have had notice or knowledge of any Default at the time
of any Credit Event, and shall continue in full force and effect as long as any
Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any
Letter of Credit shall remain outstanding.
[Remainder of page is intentionally left blank; signature pages follow]
138
IN WITNESS WHEREOF, the parties hereto have caused this Second Amended
and Restated Credit Agreement to be duly executed and delivered by their proper
and duly authorized officers as of the day and year first above written.
BORROWER:
NEXSTAR FINANCE, L.L.C.
By: /s/ G. Xxxxxx Xxxxxxxx
-----------------------------
Title: Chief Financial Officer
Address:
000 Xxxx Xxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxx
PARENT GUARANTORS:
NEXSTAR BROADCASTING GROUP, L.L.C.
NEXSTAR BROADCASTING OF NORTHEASTERN
PENNSYLVANIA, INC. (F/K/A NEXSTAR
BROADCASTING OF NORTHEASTERN
PENNSYLVANIA LP, INC.)
NEXSTAR BROADCASTING OF JOPLIN, INC.
(F/K/A NEXSTAR BROADCASTING OF
XXXXXX XX, INC.)
NEXSTAR BROADCASTING OF ERIE, INC.
(F/K/A NEXSTAR BROADCASTING OF ERIE
LP, INC.)
KBTV BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF BEAUMONT/PORT
XXXXXX, INC.)
KFDX BROADCASTING INC. (F/K/A
NEXSTAR BROADCASTING OF WICHITA
FALLS, INC.)
NEXSTAR BROADCASTING OF ROCHESTER,
INC.
KTAB BROADCASTING INC. (F/K/A
NEXSTAR BROADCASTING OF ABILENE,
INC.)
ERC HOLDINGS, INC.
NEXSTAR MIDWEST HOLDINGS, INC.
NEXSTAR BROADCASTING OF CHAMPAIGN,
INC.
NEXSTAR BROADCASTING OF PEORIA, INC.
KMID BROADCASTING INC. (F/K/A
NEXSTAR BROADCASTING OF
MIDLAND-ODESSA, INC.)
KTAL BROADCASTING INC. (F/K/A
NEXSTAR BROADCASTING OF LOUISIANA,
INC.)
NEXSTAR FINANCE HOLDINGS II, L.L.C.
(F/K/A NEXSTAR FINANCE HOLDINGS,
L.L.C.)
NEXSTAR FINANCE HOLDINGS, L.L.C.
(F/K/A NBG, L.L.C.)
NEXSTAR FINANCE HOLDINGS, INC.
NEXSTAR ALABAMA HOLDINGS, INC.
NEXSTAR ARKANSAS HOLDINGS, INC.
By: /s/ G. Xxxxxx Xxxxxxxx
-----------------------------
Title: Chief Financial Officer
Address:
000 Xxxx Xxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxx
ADMINISTRATIVE AGENT, SYNDICATION
AGENT, ISSUING BANK AND BANKS:
BANK OF AMERICA, N.A.,
as Administrative Agent, as Issuing
Bank and as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Title: Principal
BEAR XXXXXXX CORPORATE LENDING INC.
as Syndication Agent and as a Bank
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Title: Executive Vice President
By their execution hereinbelow, each of the undersigned hereby (i)
consents to the execution and delivery of this Agreement; (ii) reaffirms and
consents to the pledge of their Capital Securities and Indebtedness, if any,
pledged to the Administrative Agent pursuant to the Pledge and Security
Agreement to secure the Obligations; (iii) reaffirms their obligations under
each the Loan Documents to which any of the undersigned are a party and agrees
that all references to the Existing Nexstar Credit Agreement made in such Loan
Documents shall include the Existing Nexstar Credit Agreement as amended and
restated by this Agreement; and (iv) agrees that, notwithstanding anything to
the contrary contained in this Agreement and the other Loan Documents executed
in connection herewith, and notwithstanding any prior course of conduct, the
undersigned's consent shall not be required for any future amendment,
modification, supplement, restatement, increase, renewal, extension,
rearrangement or substitution of this Agreement or any of the other Loan
Documents.
Consented to, Acknowledged and Agreed
as of the day and year first above
written
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 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.
NEXSTAR MANAGEMENT, INC. (F/K/A
NEXSTAR BROADCASTING GROUP, INC.)
NEXSTAR ALABAMA ACQUISITION, INC.
NEXSTAR ARKANSAS ACQUISITION, INC.
By: /s/ G. Xxxxxx Xxxxxxxx
-----------------------------
Title: Chief Financial Officer of
each of the above-named
entities
By their execution hereinbelow, each of the undersigned hereby (i)
consents to the execution and delivery of this Agreement; (ii) reaffirms and
consents to the pledge of their Capital Securities and Indebtedness, if any,
pledged to the Administrative Agent pursuant to the Pledge and Security
Agreement (as defined in the Mission Credit Agreement) to secure the
Obligations; (iii) reaffirms their obligations under each the Loan Documents to
which any of the undersigned are a party and agrees that all references to the
Existing Nexstar Credit Agreement made in such Loan Documents shall include the
Existing Nexstar Credit Agreement as amended and restated by this Agreement; and
(iv) agrees that, notwithstanding anything to the contrary contained in this
Agreement and the other Loan Documents executed in connection herewith, and
notwithstanding any prior course of conduct, the undersigned's consent shall not
be required for any future amendment, modification, supplement, restatement,
increase, renewal, extension, rearrangement or substitution of this Agreement or
any of the other Loan Documents.
Consented to, Acknowledged and Agreed
as of the day and year first above
written
MISSION BROADCASTING, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Title: President
SCHEDULE 1.01(A)
LENDING OFFICES/NOTICE ADDRESSES
BANK OF AMERICA, N.A.
ADMINISTRATIVE AGENT:
Administrative Agent's Office
(for payments and Requests for Credit Extensions):
Bank of America, N.A.
Street Address: 000 Xxxx Xx., 00xx Xxxxx
Mail Code: TX1-492-14-12
City, State ZIP Code: Xxxxxx XX, 00000-0000
Attention: Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: xxxxxxxx.xxxxx@xxxxxxxxxxxxx.xxx
Payment Instructions:
Account No.: 1292000883
Ref: Nexstar Finance LLC
ABA# 000000000
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
Street Address: 000 Xxxx Xx., 00xx Xxxxx
Mail Code: TX1-492-14-11
City, State ZIP Code: Xxxxxx XX 00000-0000
Attention: Xxxxxx XxXxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: xxxxxx.x.xxxxxx@xxxxxxxxxxxxx.xxx
An additionally copy to Bank of America, N.A.
Media and Telecom Portfolio Management
Street Address: 000 Xxxx Xx., 00xx Xxxxx
Mail Code: TX1-492-64-01
City, State ZIP Code: Xxxxxx XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: xxxxxx.x.xxxxxxx@xxxxxxxxxxxxx.xxx
Schedule 1.01(A)
ISSUING BANK:
Bank of America, N.A.
Trade Operations-Los Angeles #22621
000 X. Xxxxxxx Xxxxxx, 00xx Xxxxx
Mail Code: CA9-703-19-23
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxxx / Xxxxxx Xxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: Xxxxxx.Xxxx@xxxxxxxxxxxxx.xxx
BEAR XXXXXXX CORPORATE LENDING INC.
Administrative and Funding Contact:
(for payments and Requests for Credit Extensions):
Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxxxxxxx@xxxx.xxx
Payment Instructions:
Send to: Citibank, N.A.
ABA #: 0210-00089
Account No.: 0925-3186
Favor of: Bear Xxxxxxx Securities Corp.
Further Credit to Account No. 096-00220-28
Attention: Xxxxx Xxxxxxx
Ref: XXX
Schedule 1.01(A)
Credit Contact:
Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxxxxxxxxx@xxxx.xxx
GENERAL ELECTRIC CAPITAL CORPORATION
Administrative and Funding Contact:
(for payments and Requests for Credit Extensions):
General Electric Capital Corporation
Commercial Finance
0 Xxxx Xxxxx Xxxx, Xxxxxxxx 0X
Xxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxx.xxxxxxx@xx.xxx
Payment Instructions:
Send to: Deutsche Bank/Bankers Trust
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, XX 00000
ABA #: 000-000-000 Account No.: 00-000-000
Name: GECC-CAF Depository
Reference: CFN 6198-NEXSTAR3
Operations/Notices Contact:
General Electric Capital Corporation
Commercial Finance
0 Xxxx Xxxxx Xxxx, Xxxxxxxx 0X
Xxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Schedule 1.01(A)
XXXXXXX XXXXX CAPITAL, A DIVISION OF XXXXXXX XXXXX BUSINESS
FINANCIAL SERVICES INC.
Credit Contact:
Xxxxxxx Xxxxx Capital
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxxxxx@xxxxxxxx.xx.xxx
Payment Instructions:
LaSalle Bank
Chicago, IL
ABA#: 000000000
Account No.: 5800393182
Account Name: MLBFS Corp. Finance
Ref: Nexstar Broadcasting
Operations Contact:
Xxxxxxx Xxxxx Capital
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: Xxxxxx0@xxxxxxxx.xx.xxx
ROYAL BANK OF CANADA
Credit Contact:
Royal Bank of Canada
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: Xxxx.Xxxxxxxx@xxxxx.xxx
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: Xxxxxxx.Xxxxxxx@xxxxx.xxx
Schedule 1.01(A)
Payment Instructions:
Chase Manhattan Bank N.A., New York
ABA No. 000-000-000
For Account of: Royal Bank of Canada, New York
Account No: 000-0-000000
For further Credit to Account No. 000-000-0
Ref: Nexstar Broadcasting Group
Operations:
Royal Bank of Canada
Loans Administration
Xxx Xxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Manager
Telephone: (000) 000-0000
Fax: (000) 000-0000
TORONTO DOMINION (TEXAS), INC.
Credit Contact
Toronto Dominion (Texas), Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Manager, Credit Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxx0@xxxxx.xxx
Payment Instructions:
Bank of America, N.A.
Swift Code (XXXXXX0X)
ABA#: 000000000
Account No.: 0000-0-00000
Ref: Nexstar Finance, L.L.C. & Mission Broadcasting, Inc.
Attn: Xxxxx X. Xxxxxx, Mgr., Credit Admin.
Schedule 1.01(A)
Operations Contact:
Toronto Dominion (Texas), Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Manager, Credit Administration
Telephone: (000) 000-0000
The Toronto-Dominion Bank
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Schedule 1.01(A)
SCHEDULE 1.01(B)
PRO FORMA ADJUSTMENTS TO CONSOLIDATED OPERATING CASH FLOW
Schedule 1.01(B)
SCHEDULE 1.01(C)
DESCRIPTION OF PERMITTED REVOLVER REALLOCATION
The Revolving Banks have agreed that, no more than two times during the term of
this Agreement, the Borrower may reallocate the revolving commitments of each
such Bank between the Mission Loan and the Revolving Facility hereunder,
provided that in no event shall the sum of any Revolving Bank's Revolving
Commitment plus its Revolving Commitment (as that term is defined in the Mission
Credit Agreement), be increased over the sum of such commitments in effect on
the Effective Date.
In no event shall any reallocation of the revolver result in the sum of (a) the
aggregate Revolving Commitments of all Banks plus (b) the aggregate Revolving
Commitments (as that term is defined in the Mission Credit Agreement), exceeding
$80,000,000.
Schedule 1.01(C)
SCHEDULE 2.01
COMMITMENTS
REVOLVING
COMMITMENT REVOLVING TERM B FACILITY TERM B
PERCENTAGE COMMITMENT PERCENTAGE COMMITMENT
------------------------------------------------------------------------------------------------------------------------
LENDERS
Bank of America, 28.12500000% $ 14,062,500.00 89.72972973% $ 116,648,648.65
N.A.
Bear Xxxxxxx
Corporate Lending Inc. 28.12500000% $ 14,062,500.00 0.00000000% $ 0.00
General Electric 12.50000000% $ 6,250,000.00 5.40540541% $ 7,027,027.03
Capital Corporation
Xxxxxxx Xxxxx Capital, 12.50000000% $ 6,250,000.00 2.70270270% $ 3,513,513.51
a division of Xxxxxxx
Xxxxx Business
Financial Services Inc.
Royal Bank of Canada 18.00000000% $ 9,375,000.00 0.00000000% $ 0.00
Toronto Dominion (Texas), 0.00000000% $ 0.00 2.16216216% $ 2,810,810.81
Inc.
Totals 100.000000% $ 50,000,000.00 100.000000% $ 130,000,000.00
Schedule 2.01
SCHEDULE 6.09
MORTGAGED PROPERTIES
None.
Schedule 6.09
SCHEDULE 6.16
FCC LICENSES
NEXSTAR BROADCASTING GROUP, L.L.C.
PORT XXXXXX, TEXAS
Licensee: Nexstar Broadcasting of Beaumont/Port Xxxxxx, L.L.C.
FACILITY TYPE CALL SIGN EXP. DATE
------------- --------- ---------
TV Broadcast Station License KBTV-TV 08/01/2006
(Channel 0, Xxxx Xxxxxx, Xxxxx)
DTV STA KBTV-DT 05/22/2003
(Channel 00, Xxxx Xxxxxx, Xxxxx)
TV Intercity Relay KB-98129 08/01/2006
TV Pickup KD-4600 08/01/2006
TV Pickup KE-5101 08/01/2006
Auxiliary Remote Pickup KKX215 08/01/2006
TV Studio Transmitter Link KLA-89 08/01/2006
TV Pickup KT-2456 08/01/2006
TV Intercity Relay WLD-443 08/01/2006
TV Intercity Relay WPNG-520 08/01/2006
WICHITA FALLS, TEXAS
Licensee: Nexstar Broadcasting of Wichita Falls, L.L.C.
FACILITY TYPE CALL SIGN EXP. DATE
------------- --------- ---------
TV Broadcast Station License KFDX-TV 08/01/2006
(Channel 3, Wichita Falls, Texas)
DTV STA (Request Filed 01/21/2003) KFDX-DT
(Channel 00, Xxxxxxx Xxxxx, Xxxxx)
Auxiliary Low Power System BLP00464 08/01/2006
TV Pickup KB-55270 08/01/2006
Auxiliary Remote Pickup KLB-725 08/01/2006
TV Pickup KJ-3525 08/01/2006
Schedule 6.16
MIDLAND, TEXAS
Licensee: Nexstar Broadcasting of Midland-Odessa, L.L.C.
FACILITY TYPE CALL SIGN EXP. DATE
------------- --------- ---------
TV Broadcast Station License KMID 08/01/2006
(Channel 2, Midland, Texas)
DTV STA KMID-DT 05/22/2003
(Channel 00, Xxxxxxx, Xxxxx)
TV Translator Station License K12FM 08/01/2006
TV Pickup KB-96686 08/01/2006
TV Studio Transmitter Link KKR-61 08/01/2006
TV Studio Transmitter Link KLB-45 08/01/2006
TV Studio Transmitter Link WHG-362 08/01/2006
TV Intercity Relay WLE-628 08/01/2006
TV Intercity Relay WLE-644 08/01/2006
TV Intercity Relay WLF-217 08/01/2006
Weather Radar Station WPMY-327 03/25/2004
ABILENE, TEXAS
Licensee: Nexstar Broadcasting of Abilene, L.L.C.
FACILITY TYPE CALL SIGN EXP. DATE
------------- --------- ---------
TV Broadcast Station License KTAB-TV 08/01/2006
(Channel 32, Abilene, Texas)
DTV STA KTAB-DT 06/02/2003
(Channel 00, Xxxxxxx, Xxxxx)
Receive-Only Earth Station E8009 11/16/2004
Business Radio KA-51599 04/17/2004
TV Pickup KS-5717 08/01/2006
Business Radio WGA-708 04/17/2004
TV Studio Transmitter Link WGH-906 08/01/2006
Business Radio WZJ-613 04/17/2004
Schedule 6.16
TEXARKANA, TEXAS
Licensee: Nexstar Broadcasting of Louisiana, L.L.C.
FACILITY TYPE CALL SIGN EXP. DATE
------------- --------- ---------
TV Broadcast Station License KTAL-TV 08/01/2006
(Channel 6, Texarkana, Texas)
DTV Construction Permit KTAL-DT 07/09/2003
(Channel 00, Xxxxxxxxx, Xxxxx)
Auxiliary Low Power Station BLQ-74 08/01/2006
TV Pickup KA-88839 08/01/2006
Auxiliary Remote Pickup KLB-589 08/01/2006
Auxiliary Remote Pickup KLB-590 08/01/2006
Auxiliary Remote Pickup KLB-591 08/01/2006
TV Intercity Relay WHB-602 08/01/2006
TV Studio Transmitter Link WHB-603 08/01/2006
TV Studio Transmitter Link WHB-604 08/01/2006
TV Intercity Relay WLP-781 08/01/2006
TV Intercity Relay WLP-782 08/01/2006
Schedule 6.16
XXXXXX-XXXXX, PENNSYLVANIA
Licensee: Nexstar Broadcasting of Northeastern Pennsylvania, L.L.C.
FACILITY TYPE CALL SIGN EXP. DATE
------------- --------- ---------
TV Broadcast Station License WBRE-TV 08/01/2007
(Channel 28, Xxxxxx-Xxxxx,
Pennsylvania)
DTV STA WBRE-DT 05/13/2003
(Channel 11, Xxxxxx-Xxxxx,
Pennsylvania)
TV Translator Station License W24BL 07/31/2007
TV Translator Station License W30AN 07/31/2007
TV Translator Station License W51BP 07/31/2007
TV Translator Station License W64AL 07/31/2007
Transmit-Only Earth Station License E910642 11/01/2011
Satellite Uplink Truck E020058 05/03/2017
TV Pickup KA-35201 08/01/2007
TV Pickup KA-35425 08/01/2007
TV Pickup KA-74870 08/01/2007
TV Pickup KC-62824 08/01/2007
Broadcast Auxiliary KF-5726 08/01/2007
R/P Base Mobile System KGU-973 08/01/2007
TV Studio Transmitter Link KGH-66 08/01/2007
TV Pickup KK-4138 08/01/2007
TV Pickup KL-2535 08/01/2007
TV Pickup KP-4407 08/01/2007
R/P Base Mobile System KQB-618 08/01/2007
TV Pickup KR-7688 08/01/2007
TV Pickup KR-7693 08/01/2007
TV Pickup KR-7771 08/01/2007
TV Pickup KS-2001 08/01/2007
TV Pickup KY-2899 08/01/2007
R/P Mobile KY-5608 08/01/2007
TV Studio Transmitter Link KZO-21 08/01/2007
TV Intercity Relay WFW-575 08/01/2007
TV Intercity Relay WGI-290 08/01/2007
TV Intercity Relay WHB-674 08/01/2007
TV Intercity Relay WLI-324 08/01/2007
TV Intercity Relay WLI-325 08/01/2007
TV Intercity Relay WLI-337 08/01/2007
Schedule 6.16
ERIE, PENNSYLVANIA
Licensee: Nexstar Broadcasting of Erie, L.L.C.
FACILITY TYPE CALL SIGN EXP. DATE
------------- --------- ---------
TV Broadcast Station License WJET-TV 08/01/2007
(Channel 24, Erie, Pennsylvania)
DTV Construction Permit WJET-DT 06/20/2003
(Channel 58, Erie, Pennsylvania)
Auxiliary TV Broadcast Pickup KC-26079 08/01/2007
TV Intercity Relay WPJE-618 08/01/2007
Weather Radar Station WPOZ-488 09/14/2004
R/P Base Mobile System WSM-744 08/01/2007
ROCHESTER, NEW YORK
Licensee: Nexstar Broadcasting of Rochester, L.L.C.
FACILITY TYPE CALL SIGN EXP. DATE
------------- --------- ---------
TV Broadcast Station License WROC-TV 06/01/2007
(Channel 0, Xxxxxxxxx, Xxx Xxxx)
DTV STA WROC-DT 05/13/2003
(Channel 00, Xxxxxxxxx, Xxx Xxxx)
Receive-Only Earth Station E940506 09/15/2004
Transmit/Receive Earth Station E000660 12/12/2010
OFS Microwave WPOU895 08/26/2009
TV Pickup KA-4851 06/01/2007
TV Intercity Relay KA-6058 06/01/2007
TV Studio Transmitter Link KEA-91 06/01/2007
TV Pickup KR-4704 06/01/2007
TV Pickup KR-4705 06/01/2007
Auxiliary Remote Pickup WHE-925 06/01/2007
Auxiliary Remote Pickup WHE-926 06/01/2007
Schedule 6.16
ST. XXXXXX, MISSOURI
Licensee: Nexstar Broadcasting of the Midwest, Inc.
FACILITY TYPE CALL SIGN EXP. DATE
------------- --------- ---------
TV Broadcast Station License KQTV 02/01/2006
(Channel 2, St. Xxxxxx, Missouri)
DTV Construction Permit KQTV-DT 06/20/2003
(Channel 53, St. Xxxxxx, Missouri)
TV Pickup KC-26093 02/01/2006
R/P Automatic Relay KQB-577 02/01/2006
JOPLIN, MISSOURI
Licensee: Nexstar Broadcasting Joplin, L.L.C.
FACILITY TYPE CALL SIGN EXP. DATE
------------- --------- ---------
TV Broadcast Station License KSNF 02/01/2006
(Channel 16, Joplin, Missouri)
DTV STA (Request filed 01/21/2003/) KSNF-DT
(Channel 46, Joplin, Missouri)
TV Pickup KW-6078 02/01/2006
Business Radio WNKN-977 02/01/2006
Weather Radar Station WPMJ-419 08/12/2003
Schedule 6.16
TERRE HAUTE, INDIANA
Licensee: Nexstar Broadcasting of the Midwest, Inc.
FACILITY TYPE CALL SIGN EXP. DATE
------------- --------- ---------
TV Broadcast Station License WTWO 08/01/2005
(Channel 2, Terre Haute, Indiana)
DTV STA (Request filed 01/29/2003) WTWO-DT
(Channel 36, Terre Haute, Indiana)
TV Pickup KC-26086 08/01/2005
R/P Base Mobile System KLH-391 08/01/2005
Weather Radar Station KVB-629 03/30/2004
Broadcast Auxiliary KW-4107 08/01/2005
TV Pickup KW-4108 08/01/2005
TV Intercity Relay WHF-306 08/01/2005
TV Intercity Relay WMU-968 08/01/2005
Weather Radar Station WPPH-816 01/06/2005
SPRINGFIELD, ILLINOIS
Licensee: Nexstar Broadcasting of Champaign, L.L.C.
FACILITY TYPE CALL SIGN EXP. DATE
------------- --------- ---------
TV Broadcast Station License WCFN 12/01/2005
(Channel 49, Springfield, Illinois)
DTV STA WCFN-DT 04/09/2003
(Channel 53, Springfield, Illinois)
TV Studio Transmitter Link WLD-973 12/01/2005
Schedule 6.16
CHAMPAIGN, ILLINOIS
Licensee: Nexstar Broadcasting of Champaign, L.L.C.
FACILITY TYPE CALL SIGN EXP. DATE
------------- --------- ---------
TV Broadcast Station License WCIA 12/01/2005
(Channel 3, Champaign, Illinois)
DTV STA WCIA-DT 04/09/2003
(Channel 48, Champaign, Illinois)
Transmit-Receive Earth Station E920434 07/24/2017
Auxiliary Low Power Station BLP00192 12/01/2005
Auxiliary Low Power Station BLP00322 12/01/2005
Auxiliary Low Power Station BLP00544 12/01/2005
Auxiliary Low Power Station BLP00883 12/01/2005
Auxiliary Low Power Station BLP00919 12/01/2005
Auxiliary Low Power Station BLP01124 12/01/2005
Auxiliary Low Power Station BLP01288 12/01/2005
TV Pickup KA-95317 12/01/2005
Business Radio KAP-730 12/01/2005
TV Pickup KC-5875 12/01/2005
Auxiliary Remote Pickup KSD-920 12/01/2005
Auxiliary Remote Pickup KSD-921 12/01/2005
TV Studio Transmitter Link KSG-35 12/01/2005
TV Intercity Relay KSI-74 12/01/2005
TV Intercity Relay KSI-75 12/01/2005
TV Pickup KW-6065 12/01/2005
TV Pickup KW-6066 12/01/2005
TV Pickup KW-6073 12/01/2005
TV Pickup KW-6074 12/01/2005
TV Intercity Relay WBJ-983 12/01/2005
TV Intercity Relay WBJ-986 12/01/2005
TV Intercity Relay WBJ-987 12/01/2005
TV Intercity Relay WBJ-988 12/01/2005
TV Intercity Relay WLG-233 12/01/2005
TV Intercity Relay WPNL-408 12/01/2005
Schedule 6.16
PEORIA, ILLINOIS
Licensee: Nexstar Broadcasting of Peoria, L.L.C.
FACILITY TYPE CALL SIGN EXP. DATE
------------- --------- ---------
TV Broadcast Station License WMBD-TV 12/01/2005
(Channel 31, Peoria, Illinois)
DTV Construction Permit WMDB-DT 06/20/2003
(Channel 30, Peoria, Illinois)
TV Pickup KA-88843 12/01/2005
TV Pickup KA-88844 12/01/2005
TV Intercity Relay KSI-71 12/01/2005
TV Intercity Relay KSI-72 12/01/2005
TV Intercity Relay KSI-73 12/01/2005
Remote Pick-up KSJ-777 12/01/2005
TV Studio Transmitter Link KSK-48 12/01/2005
TV Intercity Relay WBJ-984 12/01/2005
TV Intercity Relay WBJ-985 12/01/2005
TV Intercity Relay WLG-752 12/01/2005
TV Intercity Relay WMV-276 12/01/2005
OFS Microwave WNTX-533 02/08/2010
Schedule 6.16
SCHEDULE 6.17
SUBSIDIARIES
The following entities are direct wholly owned subsidiaries of Nexstar
Broadcasting Group, L.L.C.:
Nexstar Broadcasting of Northeastern Pennsylvania, Inc.
Nexstar Broadcasting of Joplin, Inc.
Nexstar Broadcasting of Erie, Inc.
KBTV Broadcasting, Inc.
KFDX Broadcasting, Inc.
Nexstar Broadcasting of Rochester, Inc.
KTAB Broadcasting, Inc.
ERC Holdings, Inc.
Nexstar Midwest Holdings, Inc.
Nexstar Broadcasting of Champaign, Inc.
Nexstar Broadcasting of Peoria, Inc.
KMID Broadcasting, Inc.
KTAL Broadcasting, Inc.
Schedule 6.17
Nexstar Arkansas Holdings, Inc.
Nexstar Alabama Holdings, Inc.
Each of the following entities owns 1,000 Class B interests in Nexstar Finance
Holdings II, LLC:
Nexstar Broadcasting of Northeastern Pennsylvania, Inc.
Nexstar Broadcasting of Joplin, Inc.
Nexstar Broadcasting of Erie, Inc.
KBTV Broadcasting, Inc.
KFDX Broadcasting, Inc.
Nexstar Broadcasting of Rochester, Inc.
KTAB Broadcasting, Inc..
ERC Holdings, Inc.
Nexstar Midwest Holdings, Inc.
Nexstar Broadcasting of Champaign, Inc.
Nexstar Broadcasting of Peoria, Inc.
KMID Broadcasting, Inc.
KTAL Broadcasting, Inc.
Schedule 6.17
Nexstar Arkansas Holdings, Inc.
Nexstar Alabama Holdings, Inc.
Nexstar Finance, L.L.C. is a direct wholly-owned subsidiary of Nexstar Finance
Holdings II, L.L.C.
Nexstar Finance Holdings, Inc. and Nexstar Finance, L.L.C. are direct wholly
owned subsidiaries of Nexstar Finance Holdings, L.L.C.
The following are direct wholly owned subsidiaries of Nexstar Finance L.L.C:
Nexstar Broadcasting of Northeastern Pennsylvania, L.L.C.
Nexstar Broadcasting of Joplin, L.L.C.
Nexstar Broadcasting of Erie, L.L.C.
Nexstar Broadcasting of Beaumont/Port Xxxxxx, L.L.C.
Nexstar Broadcasting of Wichita Falls, L.L.C.
Nexstar Broadcasting of Rochester, L.L.C.
Nexstar Broadcasting of Abilene, L.L.C.
Entertainment Realty Corporation
Nexstar Broadcasting of the Midwest, Inc.
Nexstar Broadcasting of Champaign, L.L.C.
Nexstar Broadcasting of Peoria, L.L.C.
Schedule 6.17
Nexstar Broadcasting of Midland-Odessa, L.L.C.
Nexstar Broadcasting of Louisiana, L.L.C.
Nexstar Finance, Inc.
Nexstar Arkansas Acquisition, Inc.
Nexstar Alabama Acquisition, Inc.
Nexstar Management, Inc. is a direct wholly owned subsidiary of Nexstar
Broadcasting of the Midwest, Inc.
Schedule 6.17
SCHEDULE 6.21
NETWORK AFFILIATION AGREEMENTS
NBC END DATE
--- --------
KSNF 12/08
KFDX 12/08
KBTV 12/08
WTWO 12/08
WBRE 12/08
KTAL 12/05
KARK/1/ 1/07
CBS END DATE
--- --------
WMBD 09/05
KTAB 12/04
WROC 12/05
WCIA 09/05
FOX END DATE
--- --------
WYZZ/2/ 06/05
----------
/1/ Owned and operated by KARK-TV, Inc. Nexstar and KARK-TV have
entered into a time brokerage agreement for this station.
/2/ Owned and operated by Xxxxxxxx Broadcast Group, Inc. Nexstar and Xxxxxxxx
have entered into an outsourcing agreement for this station.
Schedule 6.21
ABC END DATE
--- --------
KQTV 04/07
KMID 07/05
WJET 01/05
WDHN/3/ 12/04
UPN END DATE
--- --------
WCFN 04/07
----------
/3/ Owned and operated by Xxxxxx Network of Alabama, Inc. Nexstar and Xxxxxx
Network of Alabama have entered into a time brokerage agreement for this
station.
Schedule 6.21
SCHEDULE 8.05(a)
EXISTING INDEBTEDNESS
16% Senior Discount Notes of Nexstar Finance Holdings,
LLC (the "Holdco Notes")
$ 24,855,158
12% Notes of Nexstar Finance, LLC (the "Opco Notes")
154,822,112
Accrual of SWAP interest payment 281,256
Management Loan Guaranty
Guaranties by the Nexstar Entities (other than Nexstar Finance Holdings, LLC)
and the Mission Entities of the Holdco Notes
Guaranties by the Nexstar Entities (other than the Borrower) and the Mission
Entities of the Opco Notes
Notes of Nexstar Finance Holdings II, L.L.C. (f/k/a "Nexstar Finance Holdings,
L.L.C.")
31,866,000
Schedule 8.05(a)
SCHEDULE 8.11(e)
INVESTMENTS
See Schedule 6.17.
Schedule 8.11(e)
EXHIBIT A
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee]
(the "Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations as a Bank under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, Letters of Credit and Guarantees included in
such facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Bank) against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as, the "Assigned Interest"). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided
in this Assignment and Assumption, without representation or warranty by the
Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an
Affiliate/Approved Fund of [identify
Bank]]
3. Borrower(s): Nexstar Finance, L.L.C.
4. Administrative Agent: ______________________, as the
administrative agent under the Credit
Agreement
5. Credit Agreement: Second Amended and Restated Credit
Agreement, dated as of February 13, 2003
among Nexstar Finance, L.L.C., the Banks
A-1
Assignment and Assumption
parties thereto, and Bank of America,
N.A., as Administrative Agent
6. Assigned Interest:
Aggregate
Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
Facility Assigned for all Banks* Assigned* Commitment/Loans/4/
/5/ $ $ %
$ $ %
$ $ %
[7. Trade Date: __________________]/6/
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
---------------------------------------
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
---------------------------------------
Title:
----------
/4/ Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Banks thereunder.
/5/ Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment (e.g. "Revolving
Credit Commitment", "Term B Commitment", etc.).
/6/ To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
A-2
Assignment and Assumption
Consented to and Accepted:
[NAME OF ADMINISTRATIVE AGENT], as
Administrative Agent
By:
-----------------------------------
Title:
Consented to and Accepted:
[NAME OF ISSUING BANK], as Issuing Bank
By:
-----------------------------------
Title:
Consented to:/7/
NEXSTAR FINANCE, L.L.C.
By:
-----------------------------------
Title:
----------
/7/ To be added only if the consent of the Borrower is required by the terms of
the Credit Agreement.
A-3
Assignment and Assumption
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance
by the Borrower, any of its Subsidiaries or Affiliates or any other Person of
any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Bank under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Bank thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Bank thereunder, (iv) it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 7.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Bank, and (v) if it is a Bank organized
under the laws of a jurisdiction outside the United States, attached hereto is
any documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by the Assignee; and (b) agrees
that (i) it will, independently and without reliance on the Administrative
Agent, the Assignor or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Documents, and
(ii) it will perform in accordance with their terms all of the obligations which
by the terms of the Loan Documents are required to be performed by it as a Bank.
A-1-1
Assignment and Assumption
2. Payments. From and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned interest (including
payments of principal, interest, fees and other amounts) to the Assignor for
amounts which have accrued to but excluding the Effective Date and to the
Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law
of the State of New York.
A-1-2
Assignment and Assumption
EXHIBIT B
FORM OF BORROWER SUBORDINATED CONVERTIBLE PROMISSORY NOTE
THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATE AND SUBJECT IN
RIGHT OF PAYMENT, TO THE EXTENT AND IN THE MANNER SET FORTH HEREIN, TO THE PRIOR
PAYMENT IN FULL OF ALL SENIOR DEBT (AS DEFINED HEREIN).
THE SECURITY REPRESENTED BY THIS CERTIFICATE WAS ORIGINALLY ISSUED ON
_________________, AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED.
SUBORDINATED CONVERTIBLE PROMISSORY NOTE DUE __________
$____________ ______________, 20____
FOR VALUE RECEIVED, NEXSTAR FINANCE, L.L.C., a Delaware limited
liability company (the "Issuer"), hereby promises to pay to the order of NEXSTAR
FINANCE HOLDINGS, L.L.C., a Delaware limited liability company, or its assigns
(in any event, the "Holder"), on the Maturity Date (or earlier as provided
herein), the principal amount of ____________________ Dollars ($___________), to
the extent not theretofore paid (such unpaid principal amount at any time being
the "Principal Amount"), together with interest thereon calculated from the date
hereof in accordance with the provisions of this Note (the unpaid amount of any
such accrued interest at any time being the "Interest Amount" and the sum of the
Principal Amount and the Interest Amount at any time being the "Total Amount").
This Note is convertible into limited liability company membership
interests of the Issuer, as provided in Section 6 below.
Certain capitalized terms which are used and not otherwise defined in
this Note are defined in Section 8 below.
1. INTEREST.
(a) Rate and Accrual. Interest will accrue, on a daily
basis, on the Principal Amount from time to time at the rate of ___% per
annum. Interest will be computed on the basis of a 365 or 366 day year,
as applicable, and the actual number of days elapsed.
(b) Payment. The Interest Amount shall be due and payable on
the earlier to occur of an Event of Default or the Maturity Date, and in
addition shall be due and payable upon any prepayment of the Principal
Amount, subject to the terms of Section 9 hereof. The Interest Amount
may be prepaid at any time and from time to time, at the Issuer's
option, without premium or penalty, subject to the terms of Section 9
hereof.
Exhibit B
2. PAYMENT OF THE PRINCIPAL AMOUNT. Unless this Note has
theretofore been converted in accordance with Section 6, the Issuer will repay
the entire Principal Amount to the holder of this Note on the earlier to occur
of an Event of Default or the Maturity Date, subject to the terms of Section 9
hereof. The Issuer may, at its option, prepay at any time and from time to time
all or any part of the Principal Amount, without premium or penalty, subject to
the terms of Section 9 hereof. Any prepayment of all or any portion of the
Principal Amount will be accompanied by a payment of the applicable Interest
Amount.
3. APPLICATION AND METHOD OF PAYMENTS. Any amount paid to the
Holder by the Issuer in respect of this Note will be applied first, to reduce
the Interest Amount, and second, to reduce the Principal Amount. All payments in
respect of this Note will be made by wire transfer of immediately available
funds to an account designated by the Holder, and any payment so received after
1:00 p.m. Boston, Massachusetts time on any day will be deemed to have been
received on the following Business Day. Any amount which (but for the
application of this sentence) would become payable in respect of this Note on a
day which is not a Business Day will instead become due and payable on the next
succeeding Business Day, and interest accruing on the Principal Amount will
reflect any such extension.
4. TRANSFER AND EXCHANGE. Upon surrender of this Note to the Issuer
at its chief executive office for exchange, the Issuer at its expense will
execute and deliver in exchange therefor a new Note or Notes, as requested by
the surrendering Holder, which represent the Principal Amount of the surrendered
Note, registered as such Holder may request, dated so that there will be no loss
of interest on such surrendered Note and otherwise of like tenor. The issuance
of new Notes will be made without charge to the Holder) of the surrendered Note
for any issuance tax in respect thereof or other cost incurred by the Issuer in
connection with such issuance.
5. REPLACEMENT. Upon receipt of evidence reasonably satisfactory to
the Issuer of the loss, theft, destruction or mutilation of this Note and, in
the case of any such loss, theft or destruction of this Note, upon delivery of
an unsecured indemnity agreement in such reasonable amount as the Issuer may
determine or, in the case of any such mutilation, upon the surrender of this
Note to the Issuer at its chief executive office for cancellation, the Issuer at
its expense will execute and deliver, in lieu thereof, a new Note of the same
class and of like tenor, dated so that there will be no loss of interest on such
lost, stolen, destroyed or mutilated Note.
6. CONVERSION OF NOTE.
(a) Conversion Generally. If all or any portion of the
Principal Amount or the Interest Amount is not paid in full on or prior
to the earlier to occur of the date of an occurrence of an Event of
Default or the Maturity Date (the "Conversion Date"), then on the
Conversion Date the Total Amount of this Note will automatically convert
into fully paid and nonassessable Class ____ Interests of the Issuer
("Class ____ Interests"), calculated to the nearest 1/1000 of a Class
____ Interest, unless on the Conversion Date all Senior Debt has been
indefeasibly paid in full in cash and all commitments to provide Senior
Debt have expired or been terminated. The number of Class ____ Interests
Exhibit B
issuable upon any such exchange shall be equal to the Total Amount as of
the close of business on the Conversion Date divided by $______.
(b) Procedure for Conversion. If all or any portion of the
Principal Amount or the Interest Amount is not paid in full in cash on
or prior to the Conversion Date and any or all Senior Debt has not been
indefensibly paid in full in cash or any or all of the commitments to
provide Senior Debt have not expired or been terminated, then promptly
thereafter the Holder will surrender this Note to the Issuer at the
chief executive office of the Issuer, and in such event this Note will
be deemed to have been exchanged for Class ____ Interests as of the
close of business on the Conversion Date, and the Holder will be treated
for all purposes as the record holder of such Class _____ Interests at
such time, regardless of when such surrender occurs.
(c) Taxes on Conversion. The Issuer will pay any and all
taxes that may be payable in respect of the issue or delivery of Class
____ Interests on conversion of this Note. The Issuer will not, however,
be required to pay any income taxes of the Holder, and no such issue or
delivery will be made unless and until the Person requesting such issue
has paid to the Issuer the amount of any such tax or has established to
the satisfaction of the Issuer that such tax has been paid.
7. COVENANTS. So long as all or any portion of the Principal Amount
or the Interest Amount remains unpaid, the Issuer will reserve and keep
available at all times from its authorized and unissued membership interests,
free from preemptive rights, solely for issuance upon the conversion of this
Note, a sufficient number of Class ____ Interests to permit conversion in full
of this Note, and will take all actions which may be required so that such
interests may, when issued upon any such conversion, be validly issued, fully
paid and nonassessable.
8. DEFINED TERMS. As used in this Note, the following capitalized
terms have the following respective meanings:
"Administrative Agent" means Bank of America, N.A., as Administrative
Agent under each of the Credit Agreements, and any successor Administrative
Agent thereunder.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
"Business Day" means a day (other than a Saturday or Sunday) on which
banks generally are open in Boston, Massachusetts for the conduct of
substantially all of their activities.
"Credit Agreements" means, collectively, the Nexstar Credit Agreement
and the Mission Credit Agreement.
"Event of Default" shall be deemed to have occurred upon the occurrence
of an Event of Default under Section 9.01 (f) or (g) of the Credit Agreement.
Exhibit B
"Loan Documents" has the meaning set forth in the Credit Agreements.
"Maturity Date" means ___________________.
"Mission Credit Agreement" means the Amended and Restated Credit
Agreement dated as of February ____, 2003 by and among Mission Broadcasting,
Inc., various Banks referred to therein, Bank of America, N.A., as
Administrative Agent and as Issuing Bank and Bear Xxxxxxx Corporate Lending,
Inc., as Syndication Agent, as the same may be amended, restated, renewed,
extended, supplemented or otherwise modified from time to time.
"Nexstar Credit Agreement" means the Second Amended and Restated Credit
Agreement dated as of February __, 2003 by and among the Issuer, Nexstar
Broadcasting Group, L.L.C. and certain of its Subsidiaries, various Banks
referred to therein, Bank of America, N.A., as Administrative Agent and as
Issuing Bank, and Bear Xxxxxxx Corporate Lending, Inc., as Syndication Agent,
Royal Bank of Canada, General Electric Capital Corporation, and Xxxxxxx Xxxxx
Capital, as Co-Documentation Agents, as the same may be amended, restated,
renewed, extended, supplemented or otherwise modified from time to time.
"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.
"Reorganization" means any distribution of the assets of the Issuer upon
any voluntary or involuntary dissolution, winding-up, total or partial
liquidation or reorganization, or bankruptcy, insolvency, receivership or other
statutory or common law proceedings or arrangements involving the Issuer or the
readjustment of its liabilities or any assignment for the benefit of creditors
or any marshalling of its assets or liabilities.
"Senior Debt" means (i) all Obligations (as defined in the Nexstar
Credit Agreement) (whether now outstanding or hereafter incurred), whether as
obligor, guarantor or otherwise, whether on account of fees, indemnities,
reimbursement obligations in respect of letters of credit, costs, expenses or
otherwise, and (ii) amendments, restatements, supplements, renewals, extensions,
increases, rearrangements and substitutions of any such Obligations described in
the preceding clause (i).
"Subordinated Debt" means the principal of and interest on the
indebtedness evidenced by this Note (including any amendment, restatement,
supplement, renewal, extension, increase, rearrangement or substitution
thereof), and any and all other amounts payable in connection herewith, whether
on account of fees, indemnities, costs, expenses or otherwise.
"Subsidiary" means, as to any Person, (i) 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 (ii) any partnership, limited liability
company, association, joint venture or
Exhibit B
other entity in which such Person, directly or indirectly through Subsidiaries,
has more than a 50% equity interest at the time.
9. SUBORDINATION.
(a) Agreement to Subordinate. The Issuer and the Holder
hereby agree, for themselves and their respective successors and
assigns, that the payment of the Subordinated Debt is and shall be
expressly "subordinate and junior in right of payment" (as such phrase
is defined below) to the prior payment in full of all Senior Debt to the
extent and in the manner hereinafter set forth; provided, that
notwithstanding anything contained in this Note to the contrary, the
provisions of this Section 9 shall not in any way limit or interfere
with the Issuer's right to repay Subordinated Debt pursuant to the terms
of Section 8.10(l) of the Nexstar Credit Agreement.
(b) Meaning of Subordinate and Junior in Right of Payment.
"Subordinate and junior in right of payment" shall mean that no holder
of any part of the Subordinated Debt shall have any claim to the assets
of the Issuer on a parity with or prior to the claim of any holder of
any of the Senior Debt, whether such claim be made in connection with a
Reorganization or otherwise. Unless and until the Senior Debt shall have
been paid in full in cash and the Loan Documents and all commitments to
provide Senior Debt thereunder shall have terminated (other than any
indemnification and other expense reimbursement obligations under any
Loan Documents which are not yet due and payable), no holder of
Subordinated Debt will take, retain, permit to exist, demand or receive
from the Issuer, and the Issuer will not make, give or permit, directly
or indirectly, by set-off; redemption, purchase or in any other manner,
(i) any payment of the whole or any part of the Subordinated Debt
(whether in respect of principal, interest or any other amount, and
whether prior to, at or after the scheduled maturity thereof), (ii) any
security or collateral for the whole or any part of the Subordinated
Debt or (iii) any guaranty of the whole or any part of the Subordinated
Debt. The Issuer expressly agrees that it will not make any payment in
respect of any of the Subordinated Debt, or take any other action, in
contravention of the subordination provisions of this Note.
(c) Payment of Senior Debt. For purposes of this Note, the
Senior Debt shall not be deemed to have been paid in full until and
unless the holders thereof shall have indefeasibly received payment in
full in cash of the principal of, interest on and fees, costs and
expenses and any and all other amounts payable in connection with the
Senior Debt. The subordination provisions in this Note are for the
benefit of and may be enforceable directly by the holders of Senior
Debt, and each such holder shall be deemed to have acquired such Senior
Debt in reliance upon such subordination provisions.
(d) Limitations on Subordinated Debt. The Holder agrees that
so long as any Senior Debt shall remain unpaid in cash and the Loan
Documents and all commitments to provide Senior Debt thereunder shall
not have terminated(other than any indemnification and other expense
reimbursement obligations under any Loan Documents which are not yet due
and payable), it will not exercise any rights it may have under this
Note or any other document, instrument or agreement relating to the
Subordinated Debt,
Exhibit B
or to accelerate, xxx for or collect the obligations of the Issuer with
respect to the Subordinated Debt,or to realize upon any assets of the
Issuer or to attach, levy upon or execute against any assets of the
Issuer, or to initiate any Reorganization of the Issuer.
(e) Subordinated Debt Subordinated to Prior Payment of All
Senior Debt on Reorganization, Sale of the Issuer; Etc. Subject to
Section 9(b) above, upon any payment or distribution of all or any of
the assets or securities of the Issuer of any kind or character, whether
in cash, property or securities, whether made pursuant to a
Reorganization relative to the Issuer or any of its properties, or a
distribution of proceeds of or upon sale of all or any part of the
Issuer or any of its subsidiaries or any of their respective assets,
then in such event:
(i) the holders of Senior Debt shall be entitled to
receive payment in full in cash as provided herein of all
amounts due or to become due on or in respect of all Senior Debt
before any payment is made on account of or applied to the
Subordinated Debt;
(ii) any payment or distribution of assets of the
Issuer of any kind or character, whether in cash, property or
securities (including any payment or other distribution that may
be payable by reason of the payment of any other indebtedness of
the Issuer being subordinated to the payment of Subordinated
Debt), to which the holders of Subordinated Debt would be
entitled except for the subordination provisions of this Note,
shall be paid or delivered by any debtor, custodian, receiver,
trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, directly to the
Administrative Agent, on behalf of the holders of Senior Debt,
for application to the payment or prepayment of all such Senior
Debt remaining unpaid to the extent necessary to pay all such
Senior Debt in full in cash, after giving effect to any
concurrent payment or distribution to such holders of Senior
Debt; and
(iii) in the event that, notwithstanding the foregoing
subordination provisions of this Note, any holder of
Subordinated Debt shall have received any payment or
distribution with respect to Subordinated Debt contrary to such
foregoing subordination provisions, then and in such event such
payment or distribution shall be held in trust for the benefit
of, and shall be immediately paid or delivered by such holder of
Subordinated Debt to the Administrative Agent, on behalf of the
holders of Senior Debt, for application to the payment or
prepayment of all Senior Debt remaining unpaid, to the extent
necessary to pay all such Senior Debt in full, after giving
effect to any concurrent payment or distribution to such holders
of Senior Debt.
(f) Attorney-in-Fact. In the event of a Reorganization, if
any holder of Subordinated Debt has not filed any claim, proof of claim
or other instrument of similar character with respect to Subordinated
Debt held by such holder within 20 days before the expiration of the
time to file the same, the Administrative Agent on behalf of any holder
of Subordinated Debt may, as an attorney-in-fact for such holder of
Subordinated Debt,
Exhibit B
file any claim, proof of claim or other instrument of similar character
on behalf of such holder of Subordinated Debt, and each holder of
Subordinated Debt hereby appoints the Administrative Agent as an
attorney-in-fact for such holder of Subordinated Debt, to so file any
claim, proof of claim or such other instrument of similar character.
Each holder of Subordinated Debt ratifies all that the Administrative
Agent, as said attorney-in-fact, shall lawfully do or cause to be done
by virtue hereof and not in contravention of the terms hereof. The power
of attorney granted in this paragraph (f) is a power coupled with an
interest and shall be irrevocable.
(g) Holders of Subordinated Debt to be Subrogated to Rights
of Holders of Senior Debt. Subject to the indefeasible payment in full
in cash of all Senior Debt, the holders of Subordinated Debt shall be
subrogated to the rights of the holders of Senior Debt to receive
payments or distributions of assets of the Issuer made on account of the
Senior Debt until all amounts payable in respect of the Subordinated
Debt shall be paid in full, and for purposes of such subrogation, no
payment or distribution to the holders of Senior Debt of assets, whether
in cash, property or securities, distributable to the holders of Senior
Debt under the provisions hereof to which the holders of the
Subordinated Debt would be entitled except for the subordination
provisions of this Note, and no payment pursuant to the subordination
provisions of this Note to the holders of Senior Debt by the holders of
the Subordinated Debt shall, as between the Issuer, its creditors other
than the holders of Senior Debt, and the holders of the Subordinated
Debt, be deemed to be a payment by the Issuer to or on account of such
Senior Debt, it being understood that the subordination provisions of
this Note are, and are intended, solely for the purpose of defining the
relative rights of the holders of the Subordinated Debt, on the one
hand, and the holders of Senior Debt, on the other hand.
(h) Modifications to Subordinated Debt. So long as any
Senior Debt remains unpaid or the Loan Documents and all commitments to
provide Senior Debt thereunder shall not have been terminated, the
Issuer and the holders of Subordinated Debt will not (i) establish a
sinking fund for the payment or prepayment of or otherwise arrange for
the defeasance of any Subordinated Debt, or (ii) amend, modify or alter
in any way the terms of the Subordinated Debt or any document,
agreement, instrument or certificate relating thereto. Each holder of
Subordinated Debt agrees that it will not challenge, object to or in any
respect inhibit or otherwise interfere with the enforcement by the
Administrative Agent or any holder of Senior Debt of any of their rights
or remedies in respect of the Senior Debt.
(i) No Liability to Holders of Subordinated Debt. Neither
the Administrative Agent nor any holder of Senior Debt shall have any
liability whatsoever to any holder of Subordinated Debt with respect to,
and each holder of Subordinated Debt waives any claim or defense which
it may now or hereafter have against the Administrative Agent or any
holder of Senior Debt arising from (i) any and all actions which the
Administrative Agent or the holders of Senior Debt take or omit to take
(including, without limitation, actions with respect to the creation,
perfection or continuation of liens upon any collateral securing any of
the Senior Debt, actions with
Exhibit B
respect to the occurrence of any default under any Senior Debt, actions
with respect to the foreclosure upon, sale, release of, depreciation of
or failure to realize upon any of such collateral, and actions with
respect to the collection of any claim for all or any part of the Senior
Debt from any account debtor, guarantor or any other Person) with
respect to the Senior Debt or the valuation, use, protection or release
of any collateral now or hereafter securing same, other than any actions
which involve the gross negligence or willful misconduct of the
Administrative Agent or any holder of the Senior Debt; (ii) any right,
now or hereafter existing, to require the Administrative Agent or the
holders of Senior Debt to proceed against or exhaust any collateral at
any time securing the Senior Debt or to marshal any assets in favor of
any holder of Subordinated Debt; (iii) any notice of the incurrence or
increase of Senior Debt, it being understood that the Administrative
Agent or the holders of Senior Debt may make advances now or hereafter
relating to the Senior Debt, without notice to or authorization from the
holders of Subordinated Debt, in reliance upon the agreements set forth
in this Note, including but not limited to the provisions of paragraph
(j) below; or (iv) any defense based upon or arising by reason of (A)
any disability or other defense of the Issuer or any other Person or
entity, or (B) any lack of authority of any agent or any other Person or
entity acting or purporting to act on behalf of the Issuer or any holder
of Subordinated Debt, or (C) any failure by the Administrative Agent or
any holder of Senior Debt to properly perfect any Lien in any asset
securing or intended to secure all or any portion of the Senior Debt.
(j) Amendments to Senior Debt. The Administrative Agent
and/or the holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the holders of Subordinated
Debt, without incurring responsibility to such holders of Subordinated
Debt, and without impairing or releasing any of their rights, or any of
the obligations of such holders of Subordinated Debt hereunder, do any
of the following:
(i) change the amount, manner, place, or terms of
payment or change or extend the time of payment of or increase,
renew or alter the Senior Debt, or any part thereof, or enter
into or amend in any manner any agreement (including any related
loan agreement, promissory notes and collateral documents)
relating to the Senior Debt;
(ii) sell, exchange, release, or otherwise deal with
all or any part of any property by whomsoever at any time
pledged or mortgaged to secure, or howsoever securing, the
Senior Debt, or any part thereof;
(iii) release anyone liable in any manner for the
payment or collection of the Senior Debt, or any part thereof or
waive any rights against any Person;
(iv) exercise or refrain from exercising any rights
against any of the Credit Parties and others; and
(v) apply any sums, by whomsoever paid or however
realized, to the Senior Debt.
Exhibit B
(k) Legend. Each holder of Subordinated Debt will advise
each future holder or owner of Subordinated Debt that the Subordinated
Debt is subordinated to the Senior Debt in the manner and to the extent
set forth herein, and will place a legend on each note issued in
exchange or substitution for this Note (whether upon transfer or
otherwise), and on any other note, instrument, agreement and/or document
evidencing or related to the Subordinated Debt, indicating that such
note, instrument, agreement and/or document is subject to the foregoing
subordination provisions, and that by accepting or holding such other
note, instrument, agreement and/or document, each holder or owner is
bound by the terms of such subordination provisions to the same extent
that the Holder is bound.
10. AMENDMENT AND WAIVER. The provisions of this Note may be
modified, amended or waived, and the Issuer may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only with the prior written consent of the Holder.
11. REMEDIES. The Holder will have all rights and remedies set forth
in this Note and all rights and remedies which the Holder has under any law. Any
Person having any rights under any provision of this Note will be entitled to
enforce such rights specifically (without posting a bond or other security), to
recover damages by reason of any breach of any such provision and to exercise
all other rights granted by law. All such rights and remedies will be cumulative
and non-exclusive, and may be exercised singularly or concurrently. One or more
successive actions may be brought against the Issuer, either in the same action
or in separate actions, as often as the Holder deems advisable, until the Total
Amount of this Note has been paid in full.
12. SUCCESSORS AND ASSIGNS. All covenants and agreements contained
in this Note by or on behalf of the Issuer or the Holder will bind and inure to
the benefit of their respective successors and assigns whether so expressed or
not. In addition, and whether or not any express assignment has been made, the
provisions of this Note which are for the benefit of the Holder are also for the
benefit of, and enforceable by, any subsequent Holder.
13. SEVERABILITY. Whenever possible, each provision of this Note
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Note is held to be prohibited by or invalid
under applicable law, then such provision will be ineffective only to the extent
of such prohibition or invalidity, without invalidating the remainder of this
Note.
14. DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings
of this Note are inserted for convenience only and do not constitute a
substantive part of this Note. The use of the word "including" in this Note is
by way of example rather than by limitation.
15. JURISDICTION AND VENUE. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
THE ISSUER WITH RESPECT TO THIS NOTE OR ANY OTHER AGREEMENT CONTEMPLATED HEREBY
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN NEW
YORK, NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS NOTE THE ISSUER ACCEPTS
FOR ITSELF AND IN
Exhibit B
CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION
OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. THE ISSUER HEREBY WAIVES (TO
THE EXTENT PERMITTED BY APPLICABLE LAW) ANY CLAIM THAT NEW YORK, NEW YORK IS AN
INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE. THE ISSUER
DESIGNATES AND APPOINTS CORPORATION SERVICE COMPANY (AND SUCH OTHER PERSONS AS
MAY HEREAFTER BE SELECTED BY THE ISSUER, WITH THE CONSENT OF THE HOLDER) TO
RECEIVE ON ITS BEHALF, SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY
SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY THE ISSUER TO BE EFFECTIVE
AND BINDING SERVICE IN EVERY RESPECT. A COPY OF SUCH PROCESS SO SERVED WILL BE
MAILED BY REGISTERED MAIL TO THE ISSUER AT ITS CHIEF EXECUTIVE OFFICE, EXCEPT
THAT UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY
WILL NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS. NOTHING HEREIN SHALL AFFECT
THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT OF THE HOLDER TO BRING PROCEEDINGS AGAINST THE ISSUER IN THE COURTS OF
ANY OTHER JURISDICTION. TO THE EXTENT PROVIDED BY LAW, SHOULD THE ISSUER, AFTER
BEING SO SERVED, FAIL TO APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR
PAPERS SO SERVED WITHIN THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE MAILING
THEREOF, THE ISSUER WILL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY
BE ENTERED BY THE COURT AGAINST THE ISSUER, AS DEMANDED OR PRAYED FOR IN SUCH
SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE CHOICE OF FORUM FOR THE ISSUER SET
FORTH IN THIS SECTION 15 WILL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT BY THE
HOLDER OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING BY THE HOLDER
OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND THE
ISSUER HEREBY WAIVES THE RIGHT TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR
ACTION.
16. WAIVER OF RIGHT TO JURY TRIAL. THE HOLDER AND THE ISSUER HEREBY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY in any
litigation in any court with respect to, in connection with, or arising out of
this Note or any other agreement contemplated hereby or the validity,
protection, interpretation, collection or enforcement thereof; AND THE ISSUER
HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO INTERPOSE
ANY SETOFF OR COUNTERCLAIM OR CROSS-CLAIM in connection with any such
litigation, irrespective of the nature of such setoff, counterclaim or
cross-claim except to the extent that the failure so to assert any such setoff,
counterclaim or crossclaim would permanently preclude the prosecution of or
recovery upon same. Notwithstanding anything contained in this Note to the
contrary, no claim may be made by the Issuer against the Holder for any lost
profits or any special, indirect or consequential damages in respect of any
breach or wrongful conduct (other than willful misconduct constituting actual
fraud) in connection with, arising out of or in any way related to
Exhibit B
the transactions contemplated by or consummated in connection with the loans
described herein or the issuance of this Note or any act, omission or event
occurring in connection therewith; and the Issuer hereby waives, releases and
agrees not to xxx upon any such claim for any such damages. THE ISSUER AND THE
HOLDER AGREE THAT THIS SECTION 16 IS A SPECIFIC AND MATERIAL ASPECT OF THIS NOTE
AND ACKNOWLEDGE THAT THE INITIAL HOLDER NAMED IN THIS NOTE WOULD NOT HAVE
ACCEPTED THIS NOTE IF THIS SECTION 16 WERE NOT PART OF THIS NOTE.
17. TIME OF ESSENCE. Time is of the essence for the performance by
the Issuer of the obligations set forth in this Note.
18. CANCELLATION. After the entire Total Amount of this Note has
been paid in full, this Note will be surrendered to the Issuer for cancellation
and will not be reissued; provided that such cancellation will not adversely
affect any provisions of this Note which by its terms may apply after such
payment in full.
19. GOVERNING LAW. This Note will be governed by and construed in
accordance with the domestic laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
20. TRANSFER. The owner of this Note is the Holder, with respect to
principal and interest. Transfer of this Note may be effected by the Holder only
by surrender of this Note to the Issuer and either reissuance by the Issuer of
this Note to a new holder or holders or the issuance of a new Note to the new
holder or holders. It is intended that interest paid on this Note qualify for
the exemption from U.S. withholding tax as a portfolio debt instrument under
Section 871(h) and 881(c) of the Internal Revenue Code.
Exhibit B
The Issuer has executed and delivered this Note as of the date first
above written.
NEXSTAR FINANCE, L.L.C.
By:
---------------------------------------
Name:
Title:
By its execution hereinbelow, the Holder consents and agrees to be bound
by the provisions of this Note applicable to the Holder.
NEXSTAR FINANCE HOLDINGS, L.L.C.
By:
-----------------------------------
Name:
Title:
Exhibit B
EXHIBIT C
FORM OF CLOSING CERTIFICATE
The undersigned, the _________________ and _________________,
respectively of _______________________, a _____________ (the "Company"), hereby
certify to Bank of America, N.A., as Administrative Agent pursuant to Section
5.01(b) of the Second Amended and Restated Credit Agreement dated as of the date
hereof (the "Credit Agreement") among Nexstar Finance, L.L.C. (the "Borrower"),
Nexstar Broadcasting Group, L.L.C. (the "Ultimate Parent"), certain Subsidiaries
of the Ultimate Parent from time to time parties thereto, the several financial
institutions from time to time parties thereto (the "Banks"), Bank of America,
N.A., as Administrative Agent for the Banks (in such capacity and together with
its successors and assigns in such capacity, the "Administrative Agent"), and
Bear Xxxxxxx Corporate Lending Inc. as Syndication Agent, as follows (it being
understood that capitalized terms used and not otherwise defined herein shall
have the respective meanings ascribed thereto in the Credit Agreement):
1. ________________ is a duly elected and qualified ______________
of the Company;
2. ________________ is a duly elected and qualified _______________
of the Company;
3. The [resolutions/unanimous written consent] of the Company's
[board of directors or other governing body], a true, correct
and complete copy of which are attached hereto as Exhibit A and
made a part hereof, (i) were duly adopted by
[resolutions/unanimous written consent of the board of directors
or other governing body] of the Company in accordance with
applicable law (the date when such [resolutions were duly
adopted/consent was duly executed] being referred to herein as
the "Resolution Date"), (ii) are in full force and effect, (iii)
have not been repealed, amended or modified, and (iv) authorize
the Company to execute and deliver, and perform the Company's
obligations under, the Loan Documents to which the Company is a
party;
4. The individuals listed below (the "Current Officers") validly
hold the offices of the Company set forth opposite their
respective names, and the signatures set forth opposite their
respective names are their true and authentic signatures:
Name Title Signature
---- ----- ---------
___________________ Vice President ____________________________
___________________ Vice President ____________________________
___________________ Secretary ____________________________
C-1
5. Each of the Current Officers has the authority to execute and
deliver, on behalf of the Company, the Loan Documents to which
the Company is a party.
6. The Certificate of [Incorporation] [Formation] of the Company,
and all amendments thereto, as certified by the appropriate
authority where the Company is [incorporated/organized] as of a
date not more than 10 days prior to the date hereof, a true,
correct and complete copy of which is attached hereto as Exhibit
B and made a part hereof, (i) was in full force and effect
(without further modification or amendment) on the Resolution
Date, and (ii) is in full force and effect as of the date hereof
(without further modification or amendment).
7. The [By-Laws] [Limited Liability Company Agreement] of the
Company, and all amendments thereto, a true, correct and
complete copy of which are attached hereto as Exhibit C and made
a part hereof, (i) were in full force and effect (without
further modification or amendment) on the Resolution Date, and
(ii) are in full force and effect as of the date hereof (without
further modification or amendment).
8. Attached hereto as Exhibit D are recent certificates, each dated
not more than 10 days prior to the date hereof, issued by
appropriate governmental authorities which evidence the
existence, good standing and foreign qualification of Company in
each jurisdiction in which Company is incorporated or where the
Company's property or business makes qualification to transact
business therein necessary and where the failure to be so
qualified could reasonably be expected to have a Material
Adverse Effect.
9. Since [December 31, 2002], there has not occurred any change,
development or event which could reasonably be expected to have
a Material Adverse Effect.
10. The representations and warranties of the Company contained in
each Loan Document to which it is a party are true and correct
in all material respects on and as of the date hereof with the
same effect as if made on the date hereof, after giving effect
to the extensions of credit requested to be made on the date
hereof and the proposed use of the proceeds thereof.
11. No Default or Event of Default has occurred and is continuing as
of the date hereof or will occur after giving effect to the
extension of credit to be made on the date hereof and the
proposed use of the proceeds thereof.
12. After giving effect to the initial Credit Event under the Credit
Agreement, the Company will not have any Indebtedness
outstanding except as permitted by Section 8.05 of the Credit
Agreement.
13. There are no liquidation or dissolution proceedings pending or
to my knowledge threatened against the Company, nor has any
other event occurred affecting or to my knowledge threatening
the corporate existence of the Company.
C-2
14. There exists no judgment, order, injunction or other restraint
which would prevent or delay the consummation of, or impose
materially adverse conditions upon the Loan Documents to which
the Company is a party and all transactions contemplated thereby
(including, without limitation, the execution, delivery and
performance of the Mission Loan Documents to which the Company
is a party).
15. All material Authorizations and third-party approvals necessary
or appropriate in connection with the Loan Documents to which
the Company is a party and all transactions contemplated thereby
(including, without limitation, the execution, delivery and
performance of the Mission Loan Documents to which the Company
is a party), have been obtained and are in full force and
effect, and all applicable waiting periods have expired without
any action being taken or threatened by any competent authority
which would restrain, prevent or otherwise impose materially
adverse conditions on the transactions contemplated by the Loan
Documents and copies of all such Authorizations and third-party
approvals have been delivered to the Administrative Agent.
The undersigned acknowledge that (i) this Certificate constitutes the
Closing Certificate described in Section 5.01(b) of the Credit Agreement, and
(ii) each Bank is relying on this Certificate, without performing an independent
investigation, in making the Term B Loans on the Effective Date, and will
continue to rely on this Closing Certificate after the Effective Date in making
extensions of credit under the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Certificate as of the ____ day of February ____, 2003.
------------------------------------------
I, _________________, hereby certify that I am now a duly elected,
qualified, and acting _________________ of the Company; that ___________________
is also a duly elected, qualified and acting ______________ of the Company and
the signature set forth above beside his name is his correct signature; and that
the certifications set forth above are true and correct as of the date hereof.
IN WITNESS WHEREOF, I have duly executed this Certificate as of February
____, 2003.
------------------------------------------
C-3
Exhibit A
Resolutions
[to be attached]
Exhibit B
Certificate of [Incorporation][Formation]
[to be attached]
Exhibit C
[By-Laws] [Limited Liability Company Agreement]
[to be attached]
Exhibit D
Existence/Good Standing Certificates
[to be attached]
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Date:___________,______
Re: Second Amended and Restated Credit Agreement, dated as
of February 13, 2003 (as amended, restated, supplemented
or otherwise modified from time to time, the "Credit
Agreement"), among Nexstar Finance, L.L.C. (the
"Borrower"), Nexstar Broadcasting Group, L.L.C. (the
"Ultimate Parent"), certain subsidiaries of the Ultimate
Parent from time to time parties thereto, the several
financial institutions from time to time parties thereto
(the "Banks"), Bank of America, N.A., as Administrative
Agent (in such capacity and together with its successors
and assigns in such capacity, the "Administrative
Agent"), Bear Xxxxxxx Corporate Lending Inc., as
Syndication Agent, and Royal Bank of Canada, General
Electric Capital Corporation, Xxxxxxx Xxxxx Capital, a
Division of Xxxxxxx Xxxxx Business Financial Services
Inc., as Co-Documentation Agents.
Bank of America, N.A.,
as Administrative Agent
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx. Xxxxx 00000
Attention: _____________________
Ladies and Gentlemen:
This Compliance Certificate (this "Certificate") is delivered pursuant
to Section 7.02(a) of the Credit Agreement. Any terms defined in the Credit
Agreement and not defined in this Certificate are used herein as defined in the
Credit Agreement.
(a) The individuals executing this Certificate on behalf of
the undersigned are the duly elected, qualified and acting [Title] of
the Ultimate Parent and [Title] of the Borrower, respectively.
(b) Such individuals have reviewed the terms of the Credit
Agreement and have made, or caused to be made under their supervision, a
review in reasonable detail of the transactions and financial condition
of the Ultimate Parent, the Borrower and the other Subsidiaries of the
Ultimate Parent during the accounting period covered by the attached
financial statements and through the date of this Certificate.
(c) The examination described in paragraph (b) did not
disclose and such individuals have no knowledge of the existence of any
condition or event which constitutes a Default or an Event of Default
during or at the end of the accounting period covered by the attached
financial statements or as of the date of this Certificate[, except as
set forth below] (see the schedules attached hereto for further detail).
Described below (or in a separate schedule to this Certificate) are the
exceptions, if any, to paragraph (c), listing, in detail, the nature of the
condition or event, the period during which such condition or event has existed
and the action which the Ultimate Parent and the Borrower have taken, are
taking, or propose to take with respect to each such condition or event.
The foregoing certifications, together with the computations set forth
in the schedules attached hereto and the financial statements delivered with
this Certificate in support hereof, are made and delivered this ________ day of
[Month], [Year] pursuant to Section 7.02(a) of the Credit Agreement.
The Administrative Agent, by acceptance of this Certificate,
acknowledges that the undersigned have caused this Certificate to be delivered
solely to satisfy their respective obligations under the Credit Agreement and
that no personal liability will attach to the undersigned as a result of any
statement contained herein.
NEXSTAR BROADCASTING GROUP, L.L.C.
By:
-------------------------------
Title:
NEXSTAR FINANCE, L.L.C.
By:
-------------------------------
Title:
2
SCHEDULE NO. 1
To Compliance Certificate
(This Schedule is as of ______________ and pertains
to the period from ___________ to ______________ (the "Measurement Period"))
Consolidated Total Leverage Ratio (Section 8.09(a))
1. CONSOLIDATED TOTAL DEBT:
A. Indebtedness of the Ultimate Parent, Borrower and its
Subsidiaries determined on a consolidated basis in accordance
with GAAP as set forth below:
(i) All indebtedness for borrowed money $____________
(ii) All obligations issued, undertaken or assumed as the
deferred purchase price of property or services (other
than (a) trade payables entered into in the ordinary
course of business pursuant to ordinary terms and (b)
ordinary course purchase price adjustments) $____________
(iii) 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 $____________
(iv) 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 $____________
(v) 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 Borrower and/or any
of its Subsidiaries (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) $____________
(vi) All Capital Lease Obligations $____________
3
(vii) All net obligations with respect to Interest Rate
Protection Agreements $____________
(viii) Disqualified Stock $____________
(ix) All indebtedness referred to in items (i) through (viii)
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 the Borrower or any of its Subsidiaries, even though
the Borrower or any such Subsidiary 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) $____________
(x) All Guaranty Obligations in respect of obligations of
the kinds referred to in items (i) through (ix) above $____________
Indebtedness (Add Items (i) through (x)) $____________
B. Exclusions
(i) The lesser of (a) the cash on hand of the Borrower and
its Subsidiaries (exclusive of any Acquisition Set-Aside
Amount) and (b) $15,000,000 $____________
(ii) Indebtedness that matures after the latest maturity date
of the Loans and is subject to payment-in-kind interest
payment, but only for so long as such interest payments
are payment-in-kind $____________
(iii) Indebtedness evidenced by Borrower Subordinated
Convertible Promissory Notes $____________
Sum of Exclusions (Sum of Items (i) through (iii)) $____________
C. Any addition to Indebtedness required by clause (2)(ii) of the
definition of "Consolidated Operating Cash Flow" $____________
Consolidated Total Debt
(excess of Item A over Item B plus C) $____________
4
2. CONSOLIDATED OPERATING CASH FLOW:
A. Inclusions
(i) Consolidated Net Income
Inclusions in Consolidated Net Income
(a) Net income (or loss) of the Borrower and its
Subsidiaries determined on a consolidated basis
for such period determined in conformity with
GAAP $____________
Exclusions from Consolidated Net Income
(b) All excluded income (or losses) as described in
subsections (i) through (v) of the definition of
"Consolidated Net Income" set forth in the
Credit Agreement $____________
Consolidated Net Income (excess of Item (a) over Item (b)) $____________
(ii) To the extent deducted in calculating Consolidated Net
Income in item (i) above, the sum of the following,
without duplication:
(a) Consolidated Depreciation Expense $____________
(b) Consolidated Amortization Expense $____________
(c) Consolidated Interest Expense $____________
(d) Income tax expense of the Borrower and its
Subsidiaries (other than any such expense with
respect to extraordinary gains) $____________
(e) Recurring and non-recurring non-cash losses and
expenses (determined on a consolidated basis) $____________
(Sum of Items (a) through (e)) $____________
Inclusions (Sum of Items (i) and (ii)) $____________
B. Exclusions
5
(i) The sum of the following
(a) Film Cash Payments becoming due and payable
during such period $____________
(b) Non-cash revenues, to the extent included in
calculating Consolidated Net Income in Item A(i)
above $____________
Exclusions (Sum of Items (a) and (b)) $____________
C. Network compensation adjustment (i.e., increase (or decrease) in
Consolidated Net Income resulting from inclusion in Consolidated
Net Income of payments under Network Affiliation Agreements
actually received or currently receivable regardless of the GAAP
treatment thereof) $____________
D. Increase (or decrease) in Consolidated Operating Cash Flow
resulting from adjustments set forth on Schedule 1.01(B) to the
Credit Agreement $____________
E. Consolidated Operating Cash Flow prior to Pro Forma Adjustments
relating to Dispositions, Acquisitions and Pending Acquisitions
(Sum of Items A through D) (to be used for Consolidated Fixed
Charge Coverage Ratio and Consolidated Interest Coverage Ratio) $____________
F. Adjustments, if applicable, made on a Pro Forma Basis to give
effect to the following, each as determined on a consolidated
basis in accordance with GAAP after eliminating all intercompany
items:
(i) Any sale or disposition of any Station as if the same
had been consummated or became effective on the first
day of the Measurement Period $____________
6
(ii) Any Acquisition as if the same had been consummated or
became effective on the first day of the Measurement
Period (including adjustments for anticipated changes in
network compensation for such period to be effected
within 120 days after any such Acquisition, commissions
for national representatives and other items of revenue
or expenses (including as the result of a reduction in
the number of employees within 120 days after the date
of any such acquisition), in each case satisfactory to
the Administrative Agent) and adjustments with respect
to any Pending Acquisition as described in subsection 2
of the proviso of the definition of "Consolidated
Operating Cash Flow" in Article I of the Credit
Agreement $____________
Adjustments (Sum of Items (i) and (ii)) $____________
Consolidated Operating Cash Flow (Item E +/- Item F) $____________
3. Consolidated Total Leverage Ratio (Ratio of Item 1 to Item 2) ______:1.00
4. Maximum Consolidated Total Leverage Ratio permitted by Section 8.09(a)
of the Credit Agreement during the period ______:1.00
Compliance: yes ______ no ______
7
SCHEDULE NO. 2
To Compliance Certificate
(This Schedule is as of ______________ and pertains
to the period from ___________ to ______________)
Consolidated Senior Leverage Ratio (Section 8.09(b))
A. Consolidated Total Debt (determined in accordance with
Item 1 of Schedule 1: $____________
B. Additional Exclusions
(i) Permitted Borrower Subordinated Indebtedness $____________
(ii) Permitted Seller Subordinated Indebtedness
(including any Permitted Seller Subordinated
Indebtedness incurred by Mission Entities in
accordance with the Mission Credit Agreement) $____________
Exclusions (Sum of Items (i) and (ii)) $____________
Consolidated Total Senior Debt (excess of Item A over Item B) $____________
2. Consolidated Operating Cash Flow (determined in accordance with Item 2
of Schedule No. 1): $____________
3. Consolidated Senior Leverage Ratio (Ratio of Item 1 to Item 2) _____:1.00
4. Maximum Consolidated Senior Leverage Ratio permitted by Section 8.09(b)
of the Credit Agreement during the period _____:1.00
Compliance: yes ______ no _______
8
SCHEDULE NO. 3
To Compliance Certificate
(This Schedule is as of ______________ and pertains
to the period from ___________ to ______________(the "Measurement Period"))
Consolidated Interest Coverage Ratio (Section 8.09(c))
1. Consolidated Operating Cash Flow prior to Pro Forma Adjustments relating
to Dispositions, Acquisitions and Pending Acquisitions (determined in
accordance with Items 2A through 2E of Schedule No. 1): $____________
2. Consolidated Cash Interest Expense of the Borrower and its Subsidiaries:
A. Interest Expense of the Borrower and its Subsidiaries determined
on a consolidated basis in accordance with GAAP for the
Measurement Period including, without duplication, total
interest expense for such period (including interest
attributable to Capital Leases) with respect to all outstanding
Indebtedness of the Borrower 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 amount may be increased or
decreased by the net income (or loss) from Interest Rate
Protection Agreements of the Borrower, the Ultimate Parent and
its Subsidiaries for the Measurement Period $____________
B. Exclusions:
(i) Interest expense with respect to Indebtedness described
in Section 8.05(i) of the Credit Agreement $____________
(ii) interest expense to the extent not payable in cash
(e.g., interest or dividends on securities which must
(or may, at the election of the Borrower or any of its
Subsidiaries) be paid in additional securities, imputed
interest, amortization of original issue discount and/or
by an addition to the accreted value thereof, or
non-cash accounting adjustments relating to derivatives
transactions or contracts) during the Measurement Period $____________
9
(iii) amortization of discount $____________
(iv) deferred financing costs $____________
Exclusions (Item (i)) $____________
Consolidated Cash Interest Expense of the Borrower and its Subsidiaries
(excess of Item (A) over Item (B)) $____________
3. Consolidated Interest Coverage Ratio [Ratio of Item 1 to Item 2] _____:1.00
4. Minimum Consolidated Interest Coverage Ratio permitted by Section
8.09(c) of the Credit Agreement during the period _____:1.00
Compliance: yes ______ no _______
10
SCHEDULE NO. 4
To Compliance Certificate
(This Schedule is as of ______________ and pertains
period from ___________ to ______________ (the "Measurement Period"))
Consolidated Fixed Charge Coverage Ratio (Section 8.09(d))
1. Consolidated Operating Cash Flow prior to Pro Forma Adjustments relating
to Dispositions, Acquisitions and Pending Acquisitions (determined in
accordance with Items 2A through 2E of Schedule No. 1): $____________
2. Consolidated Cash Interest Expense of the Ultimate Parent and its
Subsidiaries $____________
A. Interest Expense of the Ultimate Parent and its Subsidiaries
determined on a consolidated basis in accordance with GAAP for
the Measurement Period including, without duplication, total
interest expense for such period (including interest
attributable to Capital Leases) with respect to all outstanding
Indebtedness of the Ultimate Parent 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 amount may be increased
or decreased by the net income (or loss) from Interest Rate
Protection Agreements of the Ultimate Parent and its
Subsidiaries for the Measurement Period $____________
B. Exclusions:
(i) interest expense to the extent not payable in cash
(e.g., interest or dividends on securities which must
(or may, at the election of the Ultimate Parent or any
of its Subsidiaries) be paid in additional securities,
imputed interest, amortization of original issue
discount and/or by an addition to the accreted value
thereof, or non-cash accounting adjustments relating to
derivatives transactions or contracts) during the
Measurement Period $____________
(ii) amortization of discount $____________
(iii) deferred financing costs $____________
11
Exclusions (Item (i) + (ii) +(iii)) $____________
3. All scheduled principal payments on Indebtedness of the Ultimate Parent
and its Subsidiaries on a consolidated basis (excluding scheduled
payments on Permitted Holdings Unsecured Indebtedness and the payment of
principal of the Loans due on their respective Maturity Dates): $____________
4. Capital Expenditures of the Ultimate Parent and its Subsidiaries $____________
5. Accrued cash income tax expense for the Ultimate Parent and its
Subsidiaries (other than any such expense paid or payable during such
period with respect to extraordinary gains) on a consolidated basis: $____________
6. The amount of cash Dividends paid by the Ultimate Parent and its
Subsidiaries on a consolidated basis in respect of Permitted Parent
Preferred Equity $____________
7. Restricted Payments made to Persons that are not Nexstar Entities under
Section 8.10(d) (excluding payments made pursuant to Section
8.10(d)(ii), Section 8.10(e) and Section 8.10(k) of the Credit Agreement $____________
8. Consolidated Fixed Charge Coverage Ratio _____:1.00
[Ratio of Item 1 to (Item 2 + Item 3 + Item 4 + Item 5 + Item 6 + Item
7)]
9. Minimum Consolidated Fixed Charge Coverage Ratio permitted by Section
8.09(d) of the Credit Agreement during the period _____:1.00
Compliance: yes ______ no ______
12
SCHEDULE NO. 5
To Compliance Certificate
(This Schedule is as of ______________ and pertains
to the Fiscal Year ending or ended on ___________ (the "Current Fiscal Year"))
Capital Expenditures (Section 8.09(e))
Maximum Capital Expenditures for Current Fiscal Year:
A. Maximum permitted Capital Expenditures of the Parent Guarantors,
the Borrower and their its Subsidiaries, determined on a
consolidated basis in accordance with GAAP (with Mission being
deemed a Subsidiary of the Borrower for purposes hereof), for
the Current Fiscal Year, as specified in Section 8.09(e) of the
Credit Agreement: $ 9,000,000
B. Adjustments
(i) Excess, if any, of (a) maximum permitted Capital
Expenditures for the prior Fiscal Year (before giving
effect to any increase in such permitted expenditure
amount pursuant to (ii) below) over (b) Capital
Expenditures made during such prior Fiscal Year: $____________
(ii) Amount equal to that portion of the proceeds of any
Recovery Event not required to be applied to prepay
Loans pursuant to Section 2.07(c) of Credit Agreement $____________
(iii) $750,000 for each Station Acquired during the Current
Fiscal Year $____________
(iv) $750,000 for each Station (other than the Acquired
Properties) Acquired after the Effective Date and prior
to the Current Fiscal Year $____________
Sum of Adjustments (Sum of Item (i) through (iv))
C. Non-cash payments and payments made or accrued with respect to
Film Obligations and Consolidation Expenses $____________
Maximum Capital Expenditures for Current Fiscal Year (Item A + Item B -
Item C) $____________
13
Aggregate Capital Expenditures made during Current Fiscal Year through
last day of Measurement Period $____________
Compliance: yes ______ no _______
14
SCHEDULE NO. 6
To Compliance Certificate
(This Schedule is as of ______________ and pertains
to the Fiscal Year ending or ended on ___________ (the "Current Fiscal Year"))
Film Cash Payments (Section 8.09(f))
Maximum Film Cash Payments for Current Fiscal Year:
A. Maximum permitted Film Cash Payments (i.e., payments in respect
of obligations for the purchase, use, license or acquisition of
programs, programming materials, films and similar assets, but
excluding amounts applied to the prepayment of such obligations
under any contract evidencing such obligations in which the
amount owed thereunder exceeds the remaining value of such
contract) of the Ultimate Parent, the Borrower and their
Subsidiaries, determined on a consolidated basis in accordance
with GAAP (with Mission being deemed a Subsidiary of the
Borrower for purposes hereof), for the Current Fiscal Year, as
specified in Section 8.09(f) of the Credit Agreement: $ 11,000,000
B. Adjustments
(i) $750,000 for each Station Acquired during the Current
Fiscal Year $____________
(ii) $750,000 for each Station (other than the Acquired
Properties) Acquired after the Effective Date and prior
to the Current Fiscal Year thereafter $____________
Sum of Adjustments (Sum of Item (i) and Item (ii)) $____________
Maximum Film Cash Payments for current Fiscal Year
(Item A + Item B) $____________
Aggregate Film Cash Payments made during Current Fiscal Year through
last day of Measurement Period $____________
Compliance: yes ______ no _______
15
EXHIBIT E-1
FORM OF CONFIRMATION AGREEMENT FOR THE SECURITY AGREEMENT
THIS CONFIRMATION AGREEMENT (this "Agreement") is dated as of February
13, 2003 by the undersigned (collectively, the "Credit Parties"), for the
benefit of the Banks as that term is defined in the Second Amended and Restated
Credit Agreement dated as of February 13, 2003 among Nexstar Finance, L.L.C.
(the "Borrower"), Nexstar Broadcasting Group, L.L.C. (the "Ultimate Parent"),
certain Subsidiaries of the Ultimate Parent from time to time parties thereto,
the several financial institutions from time to time parties thereto (the
"Banks"), Bank of America, N.A., as Administrative Agent for the Banks, and Bear
Xxxxxxx Corporate Lending Inc., as Syndication Agent (as amended, restated, or
otherwise modified from time to time, the "Credit Agreement"). Unless otherwise
defined herein, terms used herein shall have the meanings ascribed to them in
the Credit Agreement.
WITNESSETH:
The Borrower, the Ultimate Parent, the Administrative Agent and the
Banks party thereto have entered into a Second Amended and Restated Credit
Agreement, dated February 13, 2003, as amended from time to time.
The parties now seek to clarify certain terms contained in each of the
Loan Documents;
NOW, THEREFORE, for valuable consideration hereby acknowledged, each of
the Credit Parties agrees, ratifies and confirms that each of the Loan Documents
described on Exhibit 1 hereto and attached hereto as Exhibit 2, as amended by
all amendments, modifications and supplements thereto to which it is a party
remains in full force and effect, and is a valid, binding and enforceable
obligation of such Credit Party, unchanged, except to the extent amended hereby,
or amended and restated by the agreements described on Exhibit 1 hereto and
attached hereto as Exhibit 2, that any of the Obligations or Obligation (as such
term is defined in the Loan Documents, either in its plural or singular form) or
other obligations secured by assets of, or guaranteed by, the Credit Parties
pursuant to the Loan Documents shall include the Obligations as that term is
defined in the Credit Agreement. Each of the Credit Parties agrees that it shall
execute and deliver such further agreements, documents, instruments, and
certificates in form and substance satisfactory to the Administrative Agent, as
the Administrative Agent may deem necessary or appropriate in connection with
this Agreement.
The Credit Parties each agree that this Agreement and each of the
documents described on Exhibit 1 hereto and attached hereto as Exhibit 2 is a
Loan Document within the definition thereof in the Credit Agreement and the
other Loan Documents.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH BANK SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. EXCEPT AS MODIFIED OR
SUPPLEMENTED HEREBY, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ALL OTHER
DOCUMENTS AND AGREEMENTS EXECUTED IN CONNECTION THEREWITH SHALL CONTINUE IN FULL
FORCE AND EFFECT.
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument. In making
proof hereof, it shall not be necessary to produce or account for any
counterpart other than one signed by the party against which enforcement is
sought.
================================================================================
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
================================================================================
2
IN WITNESS WHEREOF, this Agreement is executed as of the date first set
forth above.
CREDIT PARTIES:
NEXSTAR FINANCE, L.L.C.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
3
NEXSTAR BROADCASTING GROUP, L.L.C.
NEXSTAR BROADCASTING OF NORTHEASTERN
PENNSYLVANIA, INC. (F/K/A NEXSTAR
BROADCASTING OF NORTHEASTERN
PENNSYLVANIA LP, INC.)
NEXSTAR BROADCASTING OF JOPLIN, INC.
(F/K/A NEXSTAR BROADCASTING OF XXXXXX
XX, INC.)
NEXSTAR BROADCASTING OF ERIE, INC. (F/K/A
NEXSTAR BROADCASTING OF ERIE LP, INC.)
KBTV BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF BEAUMONT/PORT
XXXXXX, INC.)
KFDX BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF WICHITA FALLS, INC.)
NEXSTAR BROADCASTING OF ROCHESTER, INC.
KTAB BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF ABILENE, INC.)
ERC HOLDINGS, INC.
NEXSTAR MIDWEST HOLDINGS, INC.
NEXSTAR BROADCASTING OF CHAMPAIGN, INC.
NEXSTAR BROADCASTING OF PEORIA, INC.
KMID BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF MIDLAND-ODESSA, INC.)
KTAL BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF LOUISIANA, INC.)
NEXSTAR FINANCE HOLDINGS II, L.L.C.
(F/K/A NEXSTAR FINANCE HOLDINGS, L.L.C.)
NEXSTAR FINANCE HOLDINGS, L.L.C. (F/K/A
NBG, L.L.C.)
NEXSTAR FINANCE HOLDINGS, INC.
NEXSTAR ALABAMA HOLDINGS, INC.
NEXSTAR ARKANSAS HOLDINGS, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
4
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 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.
NEXSTAR MANAGEMENT, INC. (F/K/A NEXSTAR
BROADCASTING GROUP, INC.)
NEXSTAR ALABAMA ACQUISITION, INC.
NEXSTAR ARKANSAS ACQUISITION, INC.
By:
----------------------------------
Title:
----------------------------------
of each of the above-named
entities
5
EXHIBIT 1
The following are the Loan Documents, as amended and restated or otherwise
modified from time to time:
1. Security Agreement, dated as of January 12, 2001, made by each of the
Nexstar Entities in favor of Bank of America, N.A., as Collateral Agent
6
EXHIBIT 2
7
EXHIBIT E-2
FORM OF CONFIRMATION AGREEMENT FOR THE PLEDGE
AND SECURITY AGREEMENT
THIS CONFIRMATION AGREEMENT (this "Agreement") is dated as of February
13, 2003 by the undersigned (collectively, the "Credit Parties"), for the
benefit of the Banks as that term is defined in the Second Amended and Restated
Credit Agreement dated as of February 13, 2003 among Nexstar Finance, L.L.C.
(the "Borrower"), Nexstar Broadcasting Group, L.L.C. (the "Ultimate Parent"),
certain Subsidiaries of the Ultimate Parent from time to time parties thereto,
the several financial institutions from time to time parties thereto (the
"Banks"), Bank of America, N.A., as Administrative Agent for the Banks, and Bear
Xxxxxxx Corporate Lending Inc., as Syndication Agent (as amended, restated, or
otherwise modified from time to time, the "Credit Agreement"). Unless otherwise
defined herein, terms used herein shall have the meanings ascribed to them in
the Credit Agreement.
WITNESSETH:
The Borrower, the Ultimate Parent, the Administrative Agent and the
Banks party thereto have entered into a Second Amended and Restated Credit
Agreement, dated February 13, 2003, as amended from time to time.
The parties now seek to clarify certain terms contained in each of the
Loan Documents;
NOW, THEREFORE, for valuable consideration hereby acknowledged, each of
the Credit Parties agrees, ratifies and confirms that each of the Loan Documents
described on Exhibit 1 hereto and attached hereto as Exhibit 2, as amended by
all amendments, modifications and supplements thereto to which it is a party
remains in full force and effect, and is a valid, binding and enforceable
obligation of such Credit Party, unchanged, except to the extent amended hereby,
or amended and restated by the agreements described on Exhibit 1 hereto and
attached hereto as Exhibit 2, that any of the Obligations or Obligation (as such
term is defined in the Loan Documents, either in its plural or singular form) or
other obligations secured by assets of, or guaranteed by, the Credit Parties
pursuant to the Loan Documents shall include the Obligations as that term is
defined in the Credit Agreement. Each of the Credit Parties agrees that it shall
execute and deliver such further agreements, documents, instruments, and
certificates in form and substance satisfactory to the Administrative Agent, as
the Administrative Agent may deem necessary or appropriate in connection with
this Agreement.
The Credit Parties each agree that this Agreement and each of the
documents described on Exhibit 1 hereto and attached hereto as Exhibit 2 is a
Loan Document within the definition thereof in the Credit Agreement and the
other Loan Documents.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH BANK SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. EXCEPT AS MODIFIED OR
SUPPLEMENTED HEREBY, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ALL OTHER
DOCUMENTS AND AGREEMENTS EXECUTED IN CONNECTION THEREWITH SHALL CONTINUE IN FULL
FORCE AND EFFECT.
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument. In making
proof hereof, it shall not be necessary to produce or account for any
counterpart other than one signed by the party against which enforcement is
sought.
================================================================================
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
================================================================================
2
IN WITNESS WHEREOF, this Agreement is executed as of the date first set
forth above.
CREDIT PARTIES:
NEXSTAR FINANCE, L.L.C.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
3
NEXSTAR BROADCASTING GROUP, L.L.C.
NEXSTAR BROADCASTING OF NORTHEASTERN
PENNSYLVANIA, INC. (F/K/A NEXSTAR
BROADCASTING OF NORTHEASTERN
PENNSYLVANIA LP, INC.)
NEXSTAR BROADCASTING OF JOPLIN,
INC. (F/K/A NEXSTAR BROADCASTING
OF XXXXXX XX, INC.)
NEXSTAR BROADCASTING OF ERIE, INC.
(F/K/A NEXSTAR BROADCASTING OF
ERIE LP, INC.)
KBTV BROADCASTING INC. (F/K/A
NEXSTAR BROADCASTING OF
BEAUMONT/PORT XXXXXX, INC.)
KFDX BROADCASTING INC. (F/K/A
NEXSTAR BROADCASTING OF WICHITA
FALLS, INC.)
NEXSTAR BROADCASTING OF ROCHESTER,
INC.
KTAB BROADCASTING INC. (F/K/A
NEXSTAR BROADCASTING OF ABILENE,
INC.)
ERC HOLDINGS, INC.
NEXSTAR MIDWEST HOLDINGS, INC.
NEXSTAR BROADCASTING OF CHAMPAIGN,
INC.
NEXSTAR BROADCASTING OF PEORIA, INC.
KMID BROADCASTING INC. (F/K/A
NEXSTAR BROADCASTING OF
MIDLAND-ODESSA, INC.)
KTAL BROADCASTING INC. (F/K/A
NEXSTAR BROADCASTING OF LOUISIANA,
INC.)
NEXSTAR FINANCE HOLDINGS II, L.L.C.
(F/K/A NEXSTAR FINANCE HOLDINGS,
L.L.C.)
NEXSTAR FINANCE HOLDINGS, L.L.C.
(F/K/A NBG, L.L.C.)
NEXSTAR FINANCE HOLDINGS, INC.
NEXSTAR ALABAMA HOLDINGS, INC.
NEXSTAR ARKANSAS HOLDINGS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
4
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 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.
NEXSTAR MANAGEMENT, INC. (F/K/A
NEXSTAR BROADCASTING GROUP, INC.)
NEXSTAR ALABAMA ACQUISITION, INC.
NEXSTAR ARKANSAS ACQUISITION, INC.
By:
-----------------------------
Title:
-----------------------------
of each of the above-named
entities
5
EXHIBIT 1
The following are the Loan Documents, as amended and restated or otherwise
modified from time to time:
1. Pledge and Security Agreement, dated as of January 12, 2001, made by
each of the Nexstar Entities in favor of Bank of America, N.A., as Collateral
Agent
6
EXHIBIT 2
7
EXHIBIT E-3
FORM OF CONFIRMATION AGREEMENT FOR THE GUARANTY AGREEMENTS
THIS CONFIRMATION AGREEMENT (this "Agreement") is dated as of February
13, 2003 by the undersigned (collectively, the "Credit Parties"), for the
benefit of the Banks as that term is defined in the Second Amended and Restated
Credit Agreement dated as of February 13, 2003 among Nexstar Finance, L.L.C.
(the "Borrower"), Nexstar Broadcasting Group, L.L.C. (the "Ultimate Parent"),
certain Subsidiaries of the Ultimate Parent from time to time parties thereto,
the several financial institutions from time to time parties thereto (the
"Banks"), Bank of America, N.A., as Administrative Agent for the Banks, and Bear
Xxxxxxx Corporate Lending Inc., as Syndication Agent (as amended, restated, or
otherwise modified from time to time, the "Credit Agreement"). Unless otherwise
defined herein, terms used herein shall have the meanings ascribed to them in
the Credit Agreement.
WITNESSETH:
The Borrower, the Ultimate Parent, the Administrative Agent and the
Banks party thereto have entered into a Second Amended and Restated Credit
Agreement, dated February 13, 2003, as amended from time to time.
The parties now seek to clarify certain terms contained in each of the
Loan Documents;
NOW, THEREFORE, for valuable consideration hereby acknowledged, each of
the Credit Parties agrees, ratifies and confirms that each of the Loan Documents
described on Exhibit 1 hereto and attached hereto as Exhibit 2, as amended by
all amendments, modifications and supplements thereto to which it is a party
remains in full force and effect, and is a valid, binding and enforceable
obligation of such Credit Party, unchanged, except to the extent amended hereby,
or amended and restated by the agreements described on Exhibit 1 hereto and
attached hereto as Exhibit 2, that any of the Obligations or Obligation (as such
term is defined in the Loan Documents, either in its plural or singular form) or
other obligations secured by assets of, or guaranteed by, the Credit Parties
pursuant to the Loan Documents shall include the Obligations as that term is
defined in the Credit Agreement. Each of the Credit Parties agrees that it shall
execute and deliver such further agreements, documents, instruments, and
certificates in form and substance satisfactory to the Administrative Agent, as
the Administrative Agent may deem necessary or appropriate in connection with
this Agreement.
The Credit Parties each agree that this Agreement and each of the
documents described on Exhibit 1 hereto and attached hereto as Exhibit 2 is a
Loan Document within the definition thereof in the Credit Agreement and the
other Loan Documents.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH BANK SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. EXCEPT AS MODIFIED OR
SUPPLEMENTED HEREBY, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ALL OTHER
DOCUMENTS AND AGREEMENTS EXECUTED IN CONNECTION THEREWITH SHALL CONTINUE IN FULL
FORCE AND EFFECT.
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument. In making
proof hereof, it shall not be necessary to produce or account for any
counterpart other than one signed by the party against which enforcement is
sought.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
2
IN WITNESS WHEREOF, this Agreement is executed as of the date first set
forth above.
CREDIT PARTIES:
NEXSTAR FINANCE, L.L.C.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
3
NEXSTAR BROADCASTING GROUP, L.L.C.
NEXSTAR BROADCASTING OF NORTHEASTERN
PENNSYLVANIA, INC. (F/K/A NEXSTAR
BROADCASTING OF NORTHEASTERN
PENNSYLVANIA LP, INC.)
NEXSTAR BROADCASTING OF JOPLIN, INC.
(F/K/A NEXSTAR BROADCASTING OF
XXXXXX XX, INC.)
NEXSTAR BROADCASTING OF ERIE, INC.
(F/K/A NEXSTAR BROADCASTING OF ERIE
LP, INC.)
KBTV BROADCASTING INC. (F/K/A
NEXSTAR BROADCASTING OF
BEAUMONT/PORT XXXXXX, INC.)
KFDX BROADCASTING INC. (F/K/A
NEXSTAR BROADCASTING OF WICHITA
FALLS, INC.)
NEXSTAR BROADCASTING OF ROCHESTER,
INC.
KTAB BROADCASTING INC. (F/K/A
NEXSTAR BROADCASTING OF ABILENE,
INC.)
ERC HOLDINGS, INC.
NEXSTAR MIDWEST HOLDINGS, INC.
NEXSTAR BROADCASTING OF CHAMPAIGN,
INC.
NEXSTAR BROADCASTING OF PEORIA, INC.
KMID BROADCASTING INC. (F/K/A
NEXSTAR BROADCASTING OF
MIDLAND-ODESSA, INC.)
KTAL BROADCASTING INC. (F/K/A
NEXSTAR BROADCASTING OF LOUISIANA,
INC.)
NEXSTAR FINANCE HOLDINGS II, L.L.C.
(F/K/A NEXSTAR FINANCE HOLDINGS,
L.L.C.)
NEXSTAR FINANCE HOLDINGS, L.L.C.
(F/K/A NBG, L.L.C.)
NEXSTAR FINANCE HOLDINGS, INC.
NEXSTAR ALABAMA HOLDINGS, INC.
NEXSTAR ARKANSAS HOLDINGS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
4
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 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.
NEXSTAR MANAGEMENT, INC. (F/K/A
NEXSTAR BROADCASTING GROUP, INC.)
NEXSTAR ALABAMA ACQUISITION, INC.
NEXSTAR ARKANSAS ACQUISITION, INC.
By:
------------------------------
Title:
------------------------------
of each of the above-named
entities
5
EXHIBIT 1
The following are the Loan Documents, as amended and restated or otherwise
modified from time to time:
1. Guaranty Agreement, dated as of January 12, 2001, executed by the
Ultimate Parent and Nexstar Finance Holdings, L.L.C.
2. Guaranty Agreement, dated as of January 12, 2001, executed by the Direct
Subsidiaries of the Ultimate Parent
3. Guaranty Agreement, dated as of January 12, 2001, executed by Nexstar
Finance Holdings, Inc.
4. Guaranty Agreement, dated as of January 12, 2001, executed by Subsidiary
Guarantors
5. Guaranty Agreement, dated as of January 12, 2001, executed by Nexstar
Entities of Bastet/Mission Obligations
6
EXHIBIT 2
7
EXHIBIT F-1
GLOBAL ASSIGNMENT AND ACCEPTANCE (NEXSTAR)
Reference is made to the Amended and Restated Credit Agreement, dated as
of June 14, 2001 (as amended by the First Amendment to Amended and Restated
Credit Agreement and Limited Consent dated as of November 14, 2001 and by that
Second Amendment to Credit Agreement, Limited Consent and Limited Waiver dated
as of June 4, 2002, and amended and restated as described below, the "Credit
Agreement"), among Nexstar Finance, L.L.C., Nexstar Broadcasting Group, L.L.C.
(the "Ultimate Parent"), the subsidiaries of the Ultimate Parent parties
thereto, the several banks parties thereto, Bank of America, N.A., as
Administrative Agent, Barclays Bank PLC, as syndication agent, and First Union
National Bank, as documentation agent, which Credit Agreement as in effect prior
to the Transfer Effective Date (as defined below) will be amended and restated
concurrently with this Global Assignment becoming effective on the Transfer
Effective Date to, among other things, (i) delete the senior secured term A loan
facility (the "Term A Loan Facility" and the term loan made thereunder, the
"Term A Loans"), (ii) decrease the Revolving Commitment, (iii) increase the
senior secured term B loan facility (the "Term B Loan Facility" and the term
loans made thereunder, the "Term B Loans") and (ii) exchange certain existing
Commitments and outstanding Loans. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
The undersigned Banks, in their respective capacities as assignors of
the percentage or dollar amount of Term B Commitments and Revolving Commitments,
together with the corresponding percentage of outstanding Term B Loans and
Revolving Loans owned by such assignors (the "Assigned Interests"), reflected by
the reductions in such interests owned by such assignors prior to such
assignments in Schedule 1 (in such capacities, the "Assignors") and the
undersigned Banks and other financial institutions, in their respective
capacities as assignees of such Assigned Interests as reflected by the increases
in such interests owned by such assignees in Schedule 1 (in such capacities, the
"Assignee ") agree as follows:
1. In accordance with Section 11.07 of the Credit Agreement, each
Assignor hereby irrevocably sells and assigns to the Assignees, without recourse
to such Assignor, and each of the Assignees hereby irrevocably purchases and
assumes from the Assignors, without recourse to the Assignors, as of February
13, 2003 (the "Transfer Effective Date"), the portion of the Assigned Interests
owned by such Assignor such that the interests owned by such Assignor and the
Assignees after such transfer and exchange of Commitments and Loans referred to
in the first paragraph hereof are as reflected in Schedule 1.
2. No Assignor (a) makes any representation or warranty or assumes
any responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, any other Loan Document or any other instrument
or document furnished pursuant thereto, other than that it has not created any
adverse claim upon the interest being assigned by it hereunder and that
such interest is free and clear of any such adverse claim; or (b) makes any
representation or warranty or assumes any responsibility with respect to the
financial condition of the Borrower or any other Credit Party or the performance
or observance by the Borrower or any other Credit Party of any of their
respective obligations under the Credit Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto or thereto.
3. Each Assignee (a) represents and warrants that it is legally
authorized to enter into this Global Assignment and Acceptance; (b) confirms
that, if it is not prior to the Transfer Effective Date a party to the Credit
Agreement, it has received a copy of the Credit Agreement, together with copies
of such financial statements of the Borrower and the other Credit Parties and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Global Assignment and
Acceptance and to become thereby a party to the Credit Agreement; (c) agrees
that it will, independently and without reliance upon any Assignor, the
Administrative Agent or any other Bank and based on such financial statements,
documents and information as it shall deem appropriate at the time, make and
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Bank, and, if it is a Bank which is organized under the
laws of a jurisdiction outside of the United States, its obligations pursuant to
Section 4.01(f) of the Credit Agreement.
4. Following the execution of this Global Assignment and
Acceptance, it will be accepted by the Administrative Agent pursuant to Section
11.07 of the Credit Agreement, and it shall be effective as of the Transfer
Effective Date.
5. From and after the Transfer Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned Interests (including
payments of principal, interest, fees and other amounts) to the Assignees,
whether such amounts have accrued prior to the Transfer Effective Date or accrue
subsequent to the Transfer Effective Date. The Assignors and the Assignees shall
make all appropriate adjustments through the Administrative Agent for payments
by the Administrative Agent for periods prior to the Transfer Effective Date or
with respect to the making of this assignment.
6. From and after the Transfer Effective Date, (a) each of the
Assignees that is not prior to the Transfer Effective Date a party to the Credit
Agreement shall become a party thereto and, to the extent provided in this
Global Assignment and Acceptance, have the rights and obligations of a Bank
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) each of the Assignors shall, to the extent of its
assignment pursuant to this Global Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement, but
shall nevertheless continue to be entitled to the benefits of the
indemnities provided under the Credit Agreement.
7. THIS GLOBAL ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
8. This Global Assignment and Acceptance may be executed by one or
more of the parties to this Global Assignment and Acceptance on any number of
separate counterparts (including by facsimile transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Global
Assignment and Acceptance to be executed as of the dates indicated below by the
signatures of their respective duly authorized officers.
ASSIGNORS:
BANK OF AMERICA, N.A.
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
CIBC INC.
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
U.S. BANK NATIONAL ASSOCIATION
(SUCCESSOR BY MERGER TO
FIRSTAR BANK, N.A.)
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION
(SUCCESSOR BY MERGER TO FIRST UNION
NATIONAL BANK)
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
BARCLAYS BANK PLC
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
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
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
By: ING Capital Advisors LLC.
as Collateral Manager
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
COPERNICUS CDO EURO-I BV
By: ING Capital Advisors LLC.
as Collateral Manager
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
BALANCED HIGH YIELD FUND II, LTD.
By: ING Capital Advisors LLC.
as Asset Manager
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors LLC.
as Collateral Manager
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
CARLYLE HIGH YIELD PARTNERS III, LTD.
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
CARLYLE HIGH YIELD PARTNERS IV, LTD.
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management
as Investment Advisor
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
XXXXXXX & CO
By: Boston Management and Research
as Investment Advisor
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
FIRST DOMINION FUNDING II
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
FIRST DOMINION FUNDING III
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
XXXXXX FINANCIAL, INC.
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By: New York Life Investment
Management LLC, its Investment Manager
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
NEW YORK LIFE INSURANCE COMPANY
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
SIERRA CLO-I LTD.
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
ARES V CLO LTD.
By: ARES CLO Management V, LP,
Investment Management
By: ARES CLO GP V, LLC,
Its Managing Member
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
ARES VI CLO LTD.
By: ARES CLO Management VI, LP,
Investment Management
By: ARES CLO GP VI, LLC,
Its Managing Member
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
ARES VII CLO LTD.
By: ARES CLO Management VI, LP,
Investment Management
By: ARES CLO GP VII, LLC,
Its Managing Member
By:
-----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
ASSIGNEES:
BANK OF AMERICA, N.A.
By:
---------------------------------
Name:
---------------------------
Title:
------------------------------
BEAR XXXXXXX CORPORATE
LENDING INC.
By:
---------------------------------
Name:
---------------------------
Title:
------------------------------
ROYAL BANK OF CANADA
By:
---------------------------------
Name:
---------------------------
Title:
------------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
---------------------------------
Name:
---------------------------
Title:
------------------------------
XXXXXXX XXXXX CAPITAL, a
division of Xxxxxxx Xxxxx
Business Financial Services Inc.
By:
---------------------------------
Name:
---------------------------
Title:
------------------------------
TORONTO DOMINION (TEXAS), INC.
By:
---------------------------------
Name:
---------------------------
Title:
------------------------------
Consented to and accepted:
BANK OF AMERICA N.A.
as Administrative Agent
By:
---------------------------------
Name:
---------------------------
Title:
------------------------------
Consented to:
NEXSTAR FINANCE, L.L.C.
By:
---------------------------------
Name:
---------------------------
Title:
------------------------------
SCHEDULE 1 TO
GLOBAL ASSIGNMENT AND ACCEPTANCE
COMMITMENTS
Prior to assignment, deletion of Term A Loan Commitment, decrease of Revolving
Commitment, increase of Term B Commitment and reallocation of commitments
Term A Loan Term B
Bank Revolving Commitment Commitment/8/ Commitment
---- -------------------- ------------- ----------
Bank of America, N.A $ 14,661,818.19 $ 2,707,990.91 $ 4,297,879.47
Barclays Bank PLC $ 8,400,000.00 -0- -0-
CIBC Inc. $ 5,192,727.27 $ 4,152,694.81 -0-
US Bank, National Association $ 6,872,727.27 $ 2,789,123.37 -0-
Wachovia Bank National Association $ 6,872,727.27 $ 3,985,905.20 $ 2,578,727.67
Apex (IDM) CDO I Ltd. -0- -0- $ 1,719,151.78
Archimedes Funding IV Ltd. -0- -0- $ 859,575.89
Ares V CLO Ltd. -0- $ 640,658.21 $ 3,008,515.62
Ares VI CLO Ltd. -0- $ 640,658.21 $ 2,148,939.73
Ares VII CLO Ltd. -0- $ 2,127,612.15 -0-
Balanced High Yield Fund II Ltd. -0- -0- $ 859,575.90
Carlyle High Yield Partners III Ltd. -0- -0- $ 2,578,727.67
Carlyle High Yield Partners IV Ltd. -0- -0- $ 859,575.89
Copernicus CDO Euro-I B.V -0- -0- $ 2,578,727.67
Xxxxx Xxxxx Senior Income Trust -0- -0- $ 859,575.89
ELC (Cayman) Ltd. 0000-0 -0- -0- $ 859,575.88
ELC Cayman Ltd. 1999-III -0- -0- $ 859,575.89
ELC Cayman Ltd. CDO Series 1999-II -0- -0- $ 859,575.88
First Dominion Funding II -0- -0- $ 2,148,939.73
First Dominion Funding III -0- -0- $ 6,446,819.19
General Electric Capital Corporation -0- -0- $ 3,438,303.60
Xxxxxxx & Co -0- -0- $ 1,719,151.78
Xxxxxx Financial Inc. -0- -0- $ 5,157,455.39
New York Life Insurance and Annuity -0- -0- $ 6,446,819.19
New York Life Insurance Company -0- -0- $ 6,446,819.20
Senior Debt Portfolio -0- -0- $ 3,868,091.53
Sequils-ING I (HBDGM) Ltd. -0- -0- $ 859,575.89
Sierra CLO 1 Ltd. -0- -0- $ 1,289,363.83
Xxxxx CLO Ltd. 0000-0 -0- -0- $ 1,719,151.78
TOTAL: $ 42,000,000.00 $ 17,044,642.86 $ 64,468,191.94
----------
/8/ The Term A Commitment of each Bank is allocated between the Initial Term A
Commitment and the Additional Term A Commitment. The Initial Term A Commitment
of a Bank is equal to the product of such Bank's Term A Commitment reflected
above multiplied by 0.70 and the Additional Term A Commitment is equal to the
product of such Bank's Term A Commitment reflected above multiplied by 0.30.
After assignment, deletion of Term A Loan Commitment, decrease of Revolving
Commitment, increase of Term B Commitment and reallocation of commitments
Term B
Bank Revolving Commitment Commitment
---- -------------------- ----------
Bank of America, N.A $ 14,062,500.00 $ 116,648,648.65
Bear Xxxxxxx Corporate Lending Inc. $ 14,062,500.00 -0-
General Electric Capital Corporation $ 6,250,000.00 $ 7,027,027.03
Xxxxxxx Xxxxx Capital, a division of $ 6,250,000.00 $ 3,513,513.51
Xxxxxxx Xxxxx Business Financial Services
Inc.
Royal Bank of Canada $ 9,375,000.00 -0-
Toronto Dominion (Texas), Inc. -0- $ 2,810,810.81
TOTAL: $ 50,000,000 $ 130,000,000.00
EXHIBIT F-2
GLOBAL ASSIGNMENT AND ASSUMPTION (MISSION)
Reference is made to the Credit Agreement, dated as of January 12, 2001
(as amended by that certain First Amendment to Credit Agreement dated as of May
17, 2001, that certain Second Amendment to Credit Agreement dated as of June 14,
2001, that certain Third Amendment to Credit Agreement, Limited Consent and
Assumption Agreement dated as of November 14, 2001, that certain Fourth
Amendment to Credit Agreement, Limited Consent and Limited Waiver dated as of
June 5, 2002, and that certain Fifth Amendment to Credit Agreement and Limited
Consent dated as of September 30, 2002, and as amended and restated as described
below, the "Credit Agreement"), among Mission Broadcasting, Inc., the several
banks parties thereto, Bank of America, N.A., as Administrative Agent, Barclays
Bank PLC, as syndication agent, and First Union National Bank, as documentation
agent, which Credit Agreement as in effect prior to the Transfer Effective Date
(as defined below) will be amended and restated concurrently with this Global
Assignment becoming effective on the Transfer Effective Date to, among other
things, (i) add a Term B Loan Facility, (ii) decrease the Aggregate Commitments,
and (iv) exchange certain existing Commitments and outstanding Loans. Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
The undersigned Banks, in their respective capacities as assignors of
the percentage or dollar amount of Commitments, together with the corresponding
percentage of outstanding Loans owned by such assignors (the "Assigned
Interests"), reflected by the reductions in such interests owned by such
assignors prior to such assignments in Schedule 1 (in such capacities, the
"Assignors") and the undersigned Banks and other financial institutions, in
their respective capacities as assignees of such Assigned Interests as reflected
by the increases in such interests owned by such assignees in Schedule 1 (in
such capacities, the "Assignee ") agree as follows:
1. In accordance with Section 12.07 of the Credit Agreement, each
Assignor hereby irrevocably sells and assigns to the Assignees, without recourse
to such Assignor, and each of the Assignees hereby irrevocably purchases and
assumes from the Assignors, without recourse to the Assignors, as of February
13, 2003 (the "Transfer Effective Date"), the portion of the Assigned Interests
owned by such Assignor such that the interests owned by such Assignor and the
Assignees after such transfer and exchange of Commitments and Loans referred to
in the first paragraph hereof are as reflected in Schedule 1.
2. No Assignor (a) makes any representation or warranty or assumes
any responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, any other Loan Document or any other instrument
or document furnished pursuant thereto, other than that it has not created any
adverse claim upon the interest being assigned by it hereunder and that such
interest is free and clear of any such adverse claim; or (b) makes any
representation or warranty or assumes any responsibility with respect to the
financial condition of the Borrower or
any other Credit Party or the performance or observance by the Borrower or any
other Credit Party of any of their respective obligations under the Credit
Agreement, any other Loan Document or any other instrument or document furnished
pursuant hereto or thereto.
3. Each Assignee (a) represents and warrants that it is legally
authorized to enter into this Global Assignment and Acceptance; (b) confirms
that, if it is not prior to the Transfer Effective Date a party to the Credit
Agreement, it has received a copy of the Credit Agreement, together with copies
of such financial statements of the Borrower and the other Credit Parties and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Global Assignment and
Acceptance and to become thereby a party to the Credit Agreement; (c) agrees
that it will, independently and without reliance upon any Assignor, the
Administrative Agent or any other Bank and based on such financial statements,
documents and information as it shall deem appropriate at the time, make and
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Bank, and, if it is a Bank which is organized under the
laws of a jurisdiction outside of the United States, its obligations pursuant to
Section 4.01(f) of the Credit Agreement.
4. Following the execution of this Global Assignment and
Acceptance, it will be accepted by the Administrative Agent pursuant to Section
12.07 of the Credit Agreement, and it shall be effective as of the Transfer
Effective Date.
5. From and after the Transfer Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned Interests (including
payments of principal, interest, fees and other amounts) to the Assignees,
whether such amounts have accrued prior to the Transfer Effective Date or accrue
subsequent to the Transfer Effective Date. The Assignors and the Assignees shall
make all appropriate adjustments through the Administrative Agent for payments
by the Administrative Agent for periods prior to the Transfer Effective Date or
with respect to the making of this assignment.
6. From and after the Transfer Effective Date, (a) each of the
Assignees that is not prior to the Transfer Effective Date a party to the Credit
Agreement shall become a party thereto and, to the extent provided in this
Global Assignment and Acceptance, have the rights and obligations of a Bank
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) each of the Assignors shall, to the extent of its
assignment pursuant to this Global Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement, but
shall nevertheless continue to be entitled to the benefits of the indemnities
provided under the Credit Agreement.
7. THIS GLOBAL ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
8. This Global Assignment and Acceptance may be executed by one or
more of the parties to this Global Assignment and Acceptance on any number of
separate counterparts (including by facsimile transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Global
Assignment and Acceptance to be executed as of the dates indicated below by the
signatures of their respective duly authorized officers.
ASSIGNORS:
BANK OF AMERICA, N.A.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CIBC INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
U.S. BANK NATIONAL ASSOCIATION
(SUCCESSOR BY MERGER TO
FIRSTAR BANK, N.A.)
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
WACHOVIA BANK, NATIONAL
ASSOCIATION (SUCCESSOR BY
MERGER TO FIRST UNION NATIONAL
BANK)
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
BARCLAYS BANK PLC
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
ASSIGNEES:
BANK OF AMERICA, N.A.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
BEAR XXXXXXX CORPORATE
LENDING INC.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
ROYAL BANK OF CANADA
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
XXXXXXX XXXXX CAPITAL, a division
of Xxxxxxx Xxxxx Business
Financial Services Inc.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
TORONTO DOMINION (TEXAS), INC.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Consented to and accepted:
BANK OF AMERICA N.A.
as Administrative Agent
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Consented to:
MISSION BROADCASTING, INC.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SCHEDULE 1 TO
GLOBAL ASSIGNMENT AND ACCEPTANCE
COMMITMENTS
Prior to assignment, creation of Term B Commitment, decrease of Aggregate
Commitments, and reallocation of Commitments
Bank Revolving Commitment
---------------------------------- --------------------
Bank of America, N.A. $ 20,247,272.70
Barclays Bank PLC $ 11,600,000.00
CIBC Inc. $ 7,170,909.10
US Bank National Association $ 9,490,909.10
Wachovia Bank National Association $ 9,490,909.10
TOTAL: $ 58,000,000.00
After assignment, creation of Term B Loan Commitment, decrease of Aggregate
Commitments, and reallocation of commitments
Term B
Bank Revolving Commitment Commitment
----------------------------------------- -------------------- ----------------
Bank of America, N.A. $ 8,437,500.00 $ 49,351,351.35
Bear Xxxxxxx Corporate Lending Inc. $ 8,437,500.00 -0-
General Electric Capital Corporation $ 3,750,000.00 $ 2,972,972.97
Xxxxxxx Xxxxx Capital, a division of $ 3,750,000.00 $ 1,486,486.49
Xxxxxxx Xxxxx Business Financial Services
Inc.
Royal Bank of Canada $ 5,625,000.00 -0-
Toronto Dominion (Texas), Inc. -0- $ 1,189,189.19
TOTAL: $ 30,000,000 $ 55,000,000.00
Exhibit F-2
EXHIBIT G
FORM OF INFORMATION CERTIFICATE
Reference is made to the Second Amended and Restated Credit Agreement
dated as of February 13, 2003 (said Credit Agreement, as it may be amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, being the "Credit Agreement"), among the Borrower, the Ultimate Parent,
the Banks from time to time party to the Credit Agreement and Bank of America,
N.A., as Administrative Agent. Capitalized terms used but not defined herein
have the meanings assigned in the Credit Agreement or the Pledge and Security
Agreement referred to therein, as applicable.
The undersigned (each a "Company") hereby certify to Administrative
Agent and each other Secured Creditor as follows:
Names.
(a) Schedule 1 states the jurisdiction of organization, type of
entity, the exact name of each Company, as such name appears in its
currently effective organizational documents as filed with the
appropriate authority of the jurisdiction of such Company's
organization, and the charter or similar unique identification number,
if any, assigned to such Company by the appropriate authority of the
jurisdiction of such Company's organization.
(b) Schedule 1 also sets forth each other name each Company has had
in the past five years, together with the date of the relevant change.
(c) Except as set forth in Schedule 1, each Company has not changed
its identity or type of entity in any way within the past five years.
Changes in identity or type of entity include mergers, consolidations,
acquisitions (including both equity and asset acquisitions), and any
change in the form, nature or jurisdiction of organization.
(d) Schedule 1 states all other names (including trade, assumed and
similar names) used by each Company or any of its divisions or other
business units in connection with the conduct of its business or the
ownership of its properties at any time during the past five years.
(e) Schedule 1 states the Federal Taxpayer Identification Number of
each Company.
2. Current Locations.
(a) The chief executive office of each Company is located at the
address stated on Schedule 2, Section (a).
(b) Schedule 2, Section (b) states all locations where each Company
maintains any books or records relating to any Accounts (with each
location at which chattel paper, if any, is kept being indicated by an
"*").
Exhibit G
(c) To the best knowledge of Companys, Schedule 2, Section (c)
states all locations where Companys maintain any Equipment or Inventory
not identified in Schedule 2, Sections (a) or (b) and material to the
conduct of its business, other than motor vehicles, aircraft, rolling
stock, equipment and personal property in employees' possession for
business purposes.
(d) To the best knowledge of each Company, Schedule 2, Section (d)
states all the places of business of such Company or other location of
material Collateral not identified in Schedules 2 (a), (b) or (c), other
than motor vehicles, aircraft, rolling stock, equipment and personal
property in employees' possession for business purposes.
(e) Schedule 2, Section (e) states the names and addresses of all
Persons other than Companies that have possession of any of the material
Collateral of any Company, other than Collateral comprised of motor
vehicles, aircraft, rolling stock, equipment and personal property in
employees' possession for business purposes.
(f) The chief executive office of each Company was located at the
addresses (and at no other address) stated on Schedules 2 (a) and (b)
during the prior year.
(g) Schedules 2 (a) and (b) states all locations where each Company
maintained any books or records relating to any Accounts during the
prior year.
3. Stock Ownership and other Equity Interests. Schedule 3 is a true
and correct list of all the issued and outstanding stock, partnership interests,
limited liability company membership interests, warrants, options, puts, calls,
other rights to acquire or sell any equity interest in each Company, or other
equity interest of each Company and the record and beneficial owners of such
stock, partnership interests, membership interests, warrants, options, puts,
calls, other rights to acquire or sell any equity interest in each Company, or
other equity interests.
4. Debt Instruments. Schedule 4 is a true and correct list of all
promissory notes and other evidence of indebtedness held by each Company,
including all intercompany notes between any Company and each Subsidiary, and
each Subsidiary and each other Subsidiary.
5. Commercial Tort Claims. Schedule 5 is a complete and correct
list of all commercial tort claims in which any Company has any interest,
including the complete case name or style, the case number, and the court or
other tribunal in which the case is pending.
6. Deposit Accounts. Schedule 6 is a complete and correct list of
all deposit accounts in which any Company has any interest and correctly
describes the name of the account holder, the bank in which such account is
maintained (including the specific branch), the street address (including the
specific branch) and ABA number of such bank, the account number, and account
type.
7. Commodity Accounts. Schedule 7 is a complete and correct list of
all commodity accounts in which any Company has any interest, including the name
of the account holder, the complete name and identification number of the
account, a description of the governing
Exhibit G
agreement, and the name and street address of the commodity intermediary
maintaining the account.
8. Securities Accounts. Schedule 8 is a complete and correct list
of all securities accounts in which any Company has any interest, including the
name of the account holder, the complete name and identification number of the
account, a description of the governing agreement, and the name and street
address of the securities intermediary maintaining the account.
9. Letters of Credit. Schedule 9 is a complete and correct list of
all letters of credit in which any Company has any interest (other than for
which any Company's sole interest was as an applicant) and correctly describes
the bank which issued the letters of credit, and the letters of credit's number,
issue date, expiry, and face amount.
10. Insurance. Schedule 10 is a complete and correct list of all
insurance policies related to or included in assets owned by any Company.
11. Intellectual Property.
(a) Schedule 11(a) is a true and correct list of each state
registered patent and copyright, and each state patent and copyright
application in which any Company has any interest (whether as owner,
licensee or otherwise).
(b) Schedule 11(b) is a true and correct list of each patent in
which any Company has any interest (whether as owner, licensee or
otherwise), including the name of the registered owner, the nature of
each Company's interest, the patent registration number, the date of
patent issuance and the country issuing the patent.
(c) Schedule 11(c) is a true and correct lit of each patent
application in which any Company has any interest (whether as owner,
licensee or otherwise), including the name of the Person applying to be
the registered owner, the nature of each Company's interest, the patent
application number, the date of patent filing and the country with which
the patent application was filed.
(d) Schedule 11(d) is a true and correct list of each trademark in
which any Company has any interest (whether as owner, licensee or
otherwise), including the name of the registered owner, the nature of
each Company's interest, the registered trademark, the trademark
registration number, the international class covered, the goods and
services covered, the date of trademark registration and the country
registering the trademark.
(e) Schedule 11(e) is a true and correct list of each trademark
application in which any Company has any interest (whether as owner,
licensee or otherwise), including the name of the Person applying to be
the registered owner, the nature of each Company's interest, the
trademark the subject of the application, the trademark application
serial number, the international class covered, the goods and services
covered, the date of trademark application filing and the with which the
trademark application was filed.
Exhibit G
(f) Schedule 11(f) is a true and correct list of each copyright in
which any Company has any interest (whether as owner, licensee or
otherwise), including the name of the registered owner, the nature of
each Company's interest, the registered copyright, the date of copyright
issuance and the country issuing the copyright.
(g) Schedule 11(g) is a true and correct list of each copyright
application in which any Company has any interest (whether as owner,
licensee or otherwise), including the name of the Person applying to be
the registered owner, the nature of each Company's interest, the
copyright the subject of the application, the date of copyright
application filing and the country with which the copyright application
was filed.
(h) Schedule 11(h) is a true and correct list of all trade secrets
in which any Company has any interest (whether as owner, licensee or
otherwise).
(i) Schedule 11(i) is a true and correct list of all allegations of
use under Section 1(c) or 1(d) of the Trademark Act (12 U.S.C.
Section 1051, et. seq.) filed by any Company.
12. Software. Schedule 12 is a complete and correct list of all
software (excluding "mass market" software (a) subject to a "shrink-wrap" or
similar non-negotiable, non-exclusive license agreement and (b) not material to
any Company's business or used in processing material information of any
Company) (whether as owner, licensee, or otherwise), including the name of the
licensor and the escrow agent under the applicable software escrow agreement (if
any).
13. Internet. Schedule 13 is a complete and correct list of all
internet domain names, the complete name of the registered owner, the related
primary and secondary IP addresses, and the domain registration provider for
each domain name and internet website in which any Company has any interest, and
the address block for all IP addresses in which each Company has any interest.
14. Unusual Transactions. Except as described on Schedule 14, during
the past year, all Accounts have been originated by each Company and all
Inventory has been acquired by each Company in the ordinary course of business.
15. Description of Owned Real Property and Leases. Schedule 2,
Sections (a), (b), and (c) describe (i) all fee interests of each Company in
real property and (ii) all leases, easements, licenses and occupancy agreements
affecting real property included in, used in the operation of, or on or in which
is located any asset. Schedule 2, Section (d) describes those fee interests
subject to Mortgages which the secure the Existing Credit Agreement.
16. Network Affiliate Agreements. Schedule 16 is complete and
correct list of all Network Affiliation Agreements to which any Company is a
party and the expiration date thereof.
17. Stations and FCC Licenses. Schedule 17 is complete and correct
list of (i) all Stations owned or operated by any Company; (ii) all Local
Marketing Agreements, Joint Sales Agreements and Shared Services Agreements with
respect to a television broadcasting station to
Exhibit G
which any Company is a party and the expiration date thereof; and (iii) the FCC
Licenses of each Company and the expiration date thereof.
Exhibit G
IN WITNESS WHEREOF, the undersigned has duly executed this certificate
on February ___, 2003.
NEXSTAR FINANCE, L.L.C.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Exhibit G
NEXSTAR BROADCASTING GROUP, L.L.C.
NEXSTAR BROADCASTING OF NORTHEASTERN
PENNSYLVANIA, INC. (F/K/A NEXSTAR
BROADCASTING OF NORTHEASTERN
PENNSYLVANIA LP, INC.)
NEXSTAR BROADCASTING OF JOPLIN, INC.
(F/K/A NEXSTAR BROADCASTING OF XXXXXX XX, INC.)
NEXSTAR BROADCASTING OF ERIE, INC. (F/K/A NEXSTAR
BROADCASTING OF ERIE LP, INC.)
KBTV BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF BEAUMONT/PORT XXXXXX, INC.)
KFDX BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF WICHITA FALLS, INC.)
NEXSTAR BROADCASTING OF ROCHESTER, INC.
KTAB BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF ABILENE, INC.)
ERC HOLDINGS, INC.
NEXSTAR MIDWEST HOLDINGS, INC.
NEXSTAR BROADCASTING OF CHAMPAIGN, INC.
NEXSTAR BROADCASTING OF PEORIA, INC.
KMID BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF MIDLAND-ODESSA, INC.)
KTAL BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF LOUISIANA, INC.)
NEXSTAR FINANCE HOLDINGS II, L.L.C. (F/K/A
NEXSTAR FINANCE HOLDINGS, L.L.C.)
NEXSTAR FINANCE HOLDINGS, L.L.C. (F/K/A
NBG, L.L.C.)
NEXSTAR FINANCE HOLDINGS, INC.
NEXSTAR ALABAMA HOLDINGS, INC.
NEXSTAR ARKANSAS HOLDINGS, INC.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Exhibit G
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 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.
NEXSTAR MANAGEMENT, INC. (F/K/A NEXSTAR
BROADCASTING GROUP, INC.)
NEXSTAR ALABAMA ACQUISITION, INC.
NEXSTAR ARKANSAS ACQUISITION, INC.
By:
-----------------------------------------------
Name:
---------------------------------------------
of each of the above-named entities
Exhibit G
EXHIBIT H
FORM OF NOTICE OF BORROWING
Date:
-----------,----
Bank of America, N.A.,
as Administrative Agent
Corporate Loan Services
000 Xxxx Xxxxxx, ___xx Xxxxx
Xxxxxx, Xxxxx 00000-0000
Attention:
-------------------
Telecopier:
------------------
Re: Second Amended and Restated Credit Agreement, dated as
of February 13, 2003 (as amended, restated, supplemented
or otherwise modified from time to time, the "Credit
Agreement"), among Nexstar Finance, L.L.C. (the
"Borrower"), Nexstar Broadcasting Group, L.L.C. (the
"Ultimate Parent"), certain Subsidiaries of the Ultimate
Parent from time to time parties thereto, the several
financial institutions from time to time parties thereto
(the "Banks"), Bank of America, N.A., as Administrative
Agent for the Banks (in such capacity and together with
its successors and assigns in such capacity, the
"Administrative Agent"), Bear Xxxxxxx Corporate Lending
Inc., as Syndication Agent, and Royal Bank of Canada,
General Electric Capital Corporation, Xxxxxxx Xxxxx
Capital, a Division of Xxxxxxx Xxxxx Business Financial
Services Inc., as Co-Documentation Agents.
Ladies and Gentlemen:
The undersigned refers to the Credit Agreement, the terms defined
therein being used herein as therein defined, and hereby gives you notice
irrevocably, pursuant to [Section 2.03(a)] [and] [Section 2.03(b)] of the Credit
Agreement, of the Borrowing specified herein:
(1) The proposed Borrowing is to consist of [Incremental] [Term B]
[Revolving] Loans.
(2) The Business Day of the proposed Borrowing is
-------------,----.
(3) The aggregate amount of the proposed Borrowing is $
------------.
(4) The proposed Borrowing is to be comprised of [Eurodollar] [Base
Rate] Loans.
(5) The duration of the Interest Period for the Eurodollar Loans
included in the
Exhibit H
proposed Borrowing shall be [one] [two] [three] [six] [nine] [twelve]
months.]/9/
The Borrower hereby certifies that the following statements will be true
on the date of the proposed Borrowing, before and after giving effect thereto
and to the application of the proceeds therefrom:
(a) the representations and warranties of the Credit Parties
contained in the Credit Agreement and the other Loan Documents are true
and correct in all material respects as though made on and as of such
date (except to the extent such representations and warranties expressly
refer to an earlier date, in which case they shall be true and correct
in all material respects as of such earlier date);
(b) no Default or Event of Default exists or shall result
from such proposed Borrowing; and
(c) since the Effective Date, no events have occurred which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
NEXSTAR FINANCE, L.L.C.
By:
-----------------------------------------------
Title:
----------
/9/ To be included for a proposed Borrowing of Eurodollar Loans.
Exhibit H
EXHIBIT I
FORM OF NOTICE OF CONVERSION/CONTINUATION
Date: _______, ____
Bank of America, N.A.,
as Administrative Agent
Corporate Loan Services
000 Xxxx Xxxxxx, ____ Xxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: ______________
Telecopier: ______________
Re: Second Amended and Restated Credit Agreement, dated as
of February 13, 2003 (as amended, restated, supplemented
or otherwise modified from time to time, the "Credit
Agreement"), among Nexstar Finance, L.L.C. (the
"Borrower"), Nexstar Broadcasting Group, L.L.C. (the
"Ultimate Parent"), certain Subsidiaries of the Ultimate
Parent from time to time parties thereto, the several
financial institutions from time to time parties thereto
(the "Banks"), Bank of America, N.A., as Administrative
Agent for the Banks (in such capacity and together with
its successors and assigns in such capacity, the
"Administrative Agent"), Bear Xxxxxxx Corporate Lending
Inc., as Syndication Agent, and Royal Bank of Canada,
General Electric Capital Corporation, Xxxxxxx Xxxxx
Capital, a Division of Xxxxxxx Xxxxx Business Financial
Services Inc., as Co-Documentation Agents.
Ladies and Gentlemen:
The undersigned refers to the Credit Agreement, the terms
defined therein being used herein as therein defined, and hereby gives you
notice irrevocably, pursuant to Section 2.04 of the Credit Agreement, of the
[conversion] [continuation] of the Loan specified herein:
(1) The Business Day of the [conversion] [continuation] is
_____________, _______.
(2) The aggregate amount of [Incremental] [Term B]
[Revolving] Loans to be [converted] [continued] is
$_________________.
(3) The Loans are to be [converted into] [continued as]
[Base Rate] [Eurodollar] Loans.
Exhibit I
[(4) The duration of the Interest Period for the Loans
included in the [conversion] [continuation] shall be
[one] [two] [three] [six] [nine] [twelve] months.]/10/
NEXSTAR FINANCE, L.L.C.
By:
--------------------------------
Title:
----------
/10/ To be included for a proposed Borrowing of Eurodollar Loans. Interest
Periods of 9 or 12 months require the consent of each of the Banks.
Exhibit I
EXHIBIT J-1
FORM OF PARENT SUBORDINATED CONVERTIBLE PROMISSORY NOTE
THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATE AND SUBJECT IN
RIGHT OF PAYMENT, TO THE EXTENT AND IN THE MANNER SET FORTH HEREIN, TO THE PRIOR
PAYMENT IN FULL OF ALL SENIOR DEBT (AS DEFINED HEREIN).
THE SECURITY REPRESENTED BY THIS CERTIFICATE WAS ORIGINALLY ISSUED ON
______________, AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
SUBORDINATED CONVERTIBLE PROMISSORY NOTE DUE ______
$___________________ _________________, 20___
FOR VALUE RECEIVED, NEXSTAR FINANCE HOLDINGS, L.L.C. [ULTIMATE PARENT,
NEXSTAR FINANCE HOLDINGS II], a Delaware limited liability company (the
"Issuer"), hereby promises to pay to the order of,[ANY ABRY FUNDS] or its
assigns (in any event, the "Holder"), on the Maturity Date (or earlier as
provided herein), the principal amount of Dollars
___________________________________ ($_______), to the extent not theretofore
paid (such unpaid principal amount at any time being the "Principal Amount"),
together with interest thereon calculated from the date hereof in accordance
with the provisions of this Note (the unpaid amount of any such accrued interest
at any time being the "Interest Amount" and the sum of the Principal Amount and
the Interest Amount at any time being the "Total Amount").
This Note is convertible into limited liability company membership
interests of Nexstar Broadcasting Group, L.L.C., a Delaware limited liability
company ("Nexstar Broadcasting Group"), as provided in Section 6 below.
Certain capitalized terms which are used and not otherwise defined in
this Note are defined in Section 8 below.
1. INTEREST.
(a) Rate and Accrual. Interest will accrue, on a daily
basis, on the Principal Amount from time to time at the
rate of _____% per annum. Interest will be computed on
the basis of a 365 or 366 day year, as applicable, and
the actual number of days elapsed.
(b) Payment. The Interest Amount shall be due and payable on
the earlier to occur of an Event of Default or the
Maturity Date, and in addition shall be due and payable
upon any prepayment of the Principal Amount, subject to
the terms of Section 9 hereof. The Interest Amount may
be prepaid at any time and from time to time, at the
Issuer's option, without premium or penalty, subject to
the terms of Section 9 hereof.
Exhibit J-1
2. PAYMENT OF THE PRINCIPAL AMOUNT. Unless this Note has
theretofore been converted in accordance with Section 6, the Issuer will repay
the entire Principal Amount to the holder of this Note on the earlier to occur
of an Event of Default or the Maturity Date, subject to the terms of Section 9
hereof. The Issuer may, at its option, prepay at any time and from time to time
all or any part of the Principal Amount, without premium or penalty, subject to
the terms of Section 9 hereof. Any prepayment of all or any portion of the
Principal Amount will be accompanied by a payment of the applicable Interest
Amount.
3. APPLICATION AND METHOD OF PAYMENTS. Any amount paid to the
Holder by the Issuer in respect of this Note will be applied first, to reduce
the Interest Amount, and second, to reduce the Principal Amount. All payments in
respect of this Note will be made by wire transfer of immediately available
funds to an account designated by the Holder, and any payment so received after
1:00 p.m. Boston, Massachusetts time on any day will be deemed to have been
received on the following Business Day. Any amount which (but for the
application of this sentence) would become payable in respect of this Note on a
day which is not a Business Day will instead become due and payable on the next
succeeding Business Day, and interest accruing on the Principal Amount will
reflect any such extension.
4. TRANSFER AND EXCHANGE. Upon surrender of this Note to the Issuer
at its chief executive office for exchange, the Issuer at its expense will
execute and deliver in exchange therefor a new Note or Notes, as requested by
the surrendering Holder, which represent the aggregate the unpaid Principal
Amount of the surrendered Note, registered as such Holder may request, dated so
that there will be no loss of interest on such surrendered Note and otherwise of
like tenor. The issuance of new Notes will be made without charge to the Holder
of the surrendered Note for any issuance tax in respect thereof or other cost
incurred by the Issuer in connection with such issuance.
5. REPLACEMENT. Upon receipt of evidence reasonably satisfactory to
the Issuer of the loss, theft, destruction or mutilation of this Note and, in
the case of any such loss, theft or destruction of this Note, upon delivery of
an unsecured indemnity agreement in such reasonable amount as the Issuer may
determine or, in the case of any such mutilation, upon the surrender of this
Note to the Issuer at its chief executive office for cancellation, the Issuer at
its expense will execute and deliver, in lieu thereof, a new Note of the same
class and of like tenor, dated so that there will be no loss of interest on such
lost, stolen, destroyed or mutilated Note.
6. EXCHANGE OF NOTE.
(a) Exchange Generally. If all or any portion of the
Principal Amount or the Interest Amount is not paid in full on or prior
to the earlier to occur of the date of the occurrence of an Event of
Default and the Maturity Date (the "Exchange Date"), then on the
Exchange Date the Total Amount of this Note will be automatically
exchanged for fully paid and nonassessable Class _____ Interests of
Nexstar Broadcasting Group ("Class ______ Interests"), calculated to the
nearest 1/1000 of a Class ______ Interest, unless on the Exchange Date
all Senior Debt has been indefeasibly paid in full in cash and all
commitments to provide Senior Debt have expired or been terminated. The
Exhibit J-1
number of Class ______ Interests issuable upon any such exchange shall
be equal to the Total Amount as of the close of business on the Maturity
Date divided by $_________.
(b) Procedure for Exchange. If all or any portion of the
Principal Amount or the Interest Amount is not paid in full in cash on
or prior to the Exchange Date and any or all Senior Debt has not been
indefeasibly paid in full in cash or any or all of the commitments to
provide Senior Debt have not expired or been terminated, then promptly
thereafter the Holder will surrender this Note to Nexstar Broadcasting
Group at the chief executive office of Nexstar Broadcasting Group, and
in such event this Note will be deemed to have been exchanged for Class
______ Interests as of the close of business on the Exchange Date, and
the Holder will be treated for all purposes as the record holder of such
Class ______ Interests at such time, regardless of when such surrender
occurs. Upon such surrender, Nexstar Broadcasting Group will contribute
this Note to the equity of the Issuer, directly, or indirectly through
one or more of Nexstar Broadcasting Group's subsidiaries, and the Issuer
will cancel this Note.
(c) Taxes on Exchange. The Issuer will pay any and all taxes
that may be payable in respect of the issue or delivery of Class ______
Interests on exchange of this Note. The Issuer will not, however, be
required to pay any income taxes of the Holder, and no such issue or
delivery will be made unless and until the Person requesting such issue
has paid to Nexstar Broadcasting Group the amount of any such tax or has
established to the satisfaction of Nexstar Broadcasting Group that such
tax has been paid.
7. COVENANTS. So long as all or any portion of the Principal Amount
or the Interest Amount remains unpaid, Nexstar Broadcasting Group will reserve
and keep available at all times from its authorized and unissued membership
interests, free from preemptive rights, solely for issuance upon the conversion
of this Note, a sufficient number of Class Interests to permit conversion in
full of this Note, and will take all actions which may be required so that such
interests may, when issued upon any such conversion, be validly issued, fully
paid and nonassessable.
8. DEFINED TERMS. As used in this Note, the following capitalized
terms have the following respective meanings:
"Administrative Agent" means Bank of America, N.A., as
Administrative Agent under each of the Credit Agreements, and any
successor Administrative Agent thereunder.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. Section 101, et seq.).
"Business Day" means a day (other than a Saturday or Sunday) on
which banks generally are open in Boston, Massachusetts for the
conduct of substantially all of their activities.
Exhibit J-1
"Credit Agreements" means, collectively, the Nexstar Credit
Agreement and the Mission Credit Agreement.
"Event of Default" shall be deemed to have occurred upon the
occurrence of an Event of Default under Sections 9.01(f) or (g) of the
Nexstar Credit Agreement.
"Loan Documents" has the meaning set forth in the Credit
Agreements.
"Maturity Date" means _________________________.
"Mission Credit Agreement" means the Amended and Restated Credit
Agreement dated as of February __, 2003 by and among Mission
Broadcasting, Inc., various Banks referred to therein, Bank of America,
N.A., as Administrative Agent and as Issuing Bank, and Bear Xxxxxxx
Corporate Lending, Inc., as Syndication Agent, as the same may be
amended, restated, renewed, extended, supplemented or otherwise modified
from time to time.
"Nexstar Credit Agreement" means the Second Amended and Restated
Credit Agreement dated as of February __, 2003 by and among Nexstar
Finance, L.L.C., Nexstar Broadcasting Group and certain of its direct
Subsidiaries, various Banks referred to therein, Bank of America, N.A.,
as Administrative Agent and as Issuing Bank, and Bear Xxxxxxx Corporate
Lending, Inc., as Syndication Agent, Royal Bank of Canada, General
Electric Capital Corporation, and Xxxxxxx Xxxxx Capital, as
Co-Documentation Agents, as the same may be amended, restated, renewed,
extended, supplemented or otherwise modified from time to time.
"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.
"Reorganization" means any distribution of the assets of the
Issuer upon any voluntary or involuntary dissolution, winding-up, total
or partial liquidation or reorganization, or bankruptcy, insolvency,
receivership or other statutory or common law proceedings or
arrangements involving the Issuer or the readjustment of its liabilities
or any assignment for the benefit of creditors or any marshalling of its
assets or liabilities.
"Senior Debt" means (i) all Obligations (as defined in the
Nexstar Credit Agreement) (whether now outstanding or hereafter
incurred), whether as obligor, guarantor or otherwise, whether on
account of fees, indemnities, reimbursement obligations in respect of
letters of credit, costs, expenses or otherwise, and (ii) amendments,
restatements, supplements, renewals, extensions, increases,
rearrangements and substitutions of any such Obligations described in
the preceding clause (i).
"Subordinated Debt" means the principal of and interest on the
indebtedness evidenced by this Note (including any amendment,
restatement, supplement, renewal,
Exhibit J-1
extension, increase, rearrangement or substitution thereof), and any
and all other amounts payable in connection herewith, whether on
account of fees, indemnities, costs, expenses or otherwise.
"Subsidiary" means, as to any Person, (i) 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
(ii) 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.
9. SUBORDINATION.
(a) Agreement to Subordinate. The Issuer and the Holder
hereby agree, for themselves and their respective successors and
assigns, that the payment of the Subordinated Debt is and shall be
expressly "subordinate and junior in right of payment" (as such phrase
is defined below) to the prior payment in full of all Senior Debt to the
extent and in the manner hereinafter set forth; provided, that
notwithstanding anything contained in this Note to the contrary, the
provisions of this Section 9 shall not in any way limit or interfere
with the Issuer's right to repay Subordinated Debt pursuant to the terms
of Section 8.10(l) of the Nexstar Credit Agreement.
(b) Meaning of Subordinate and Junior in Right of Payment.
"Subordinate and Junior in right of payment" shall mean that no holder
of any part of the Subordinated Debt shall have any claim to the assets
of the Issuer on a parity with or prior to the claim of any holder of
any of the Senior Debt, whether such claim be made in connection with a
Reorganization or otherwise. Unless and until the Senior Debt shall have
been paid in full in cash and the Loan Documents and all commitments to
provide Senior Debt thereunder shall have terminated (other than any
indemnification and other expense reimbursement obligations under any
Loan Documents which are not yet due and payable), no holder of
Subordinated Debt will take, retain, permit to exist, demand or receive
from the Issuer, and the Issuer will not make, give or permit, directly
or indirectly, by set-off, redemption, purchase or in any other manner,
(i) any payment of the whole or any part of the Subordinated Debt
(whether in respect of principal, interest or any other amount, and
whether prior to, at or after the scheduled maturity thereof), (ii) any
security or collateral for the whole or any part of the Subordinated
Debt or (iii) any guaranty of the whole or any part of the Subordinated
Debt. The Issuer expressly agrees that it will not make any payment in
respect of any of the Subordinated Debt, or take any other action, in
contravention of the subordination provisions of this Note.
(c) Payment of Senior Debt. For purposes of this Note, the
Senior Debt shall not be deemed to have been paid in full until and
unless the holders thereof shall have indefeasibly received payment in
full in cash of the principal of, interest on and fees, costs and
expenses and any and all other amounts payable in connection with the
Senior
Exhibit J-1
Debt. The subordination provisions in this Note are for the benefit of
and may be enforceable directly by the holders of Senior Debt, and
each such holder shall be deemed to have acquired such Senior Debt in
reliance upon such subordination provisions.
(d) Limitations on Subordinated Debt. The Holder agrees that
so long as any Senior Debt shall remain unpaid in cash and the Loan
Documents and all commitments to provide Senior Debt thereunder shall
not have terminated (other than any indemnification and other expense
reimbursement obligations under any Loan Documents which are not yet
due and payable), it will not exercise any rights it may have under
this Note or any other document, instrument or agreement relating to
the Subordinated Debt, or to accelerate, xxx for or collect the
obligations of the Issuer with respect to the Subordinated Debt, or to
realize upon any assets of the Issuer or to attach, levy upon or
execute against any assets of the Issuer, or to initiate any
Reorganization of the Issuer.
(e) Subordinated Debt Subordinated to Prior Payment of All
Senior Debt on Reorganization, Sale of the Issuer; Etc. Subject to
Section 9(b) above, upon any payment or distribution of all or any of
the assets or securities of the Issuer of any kind or character, whether
in cash, property or securities, whether made pursuant to a
Reorganization relative to the Issuer or any of its properties or a
distribution of proceeds of or upon sale of all or any part of the
Issuer or any of its subsidiaries or any of their respective assets,
then in such event:
(i) the holders of Senior Debt shall be entitled to
receive payment in full in cash as provided herein of all
amounts due or to become due on or in respect of all Senior Debt
before any payment is made on account of or applied to the
Subordinated Debt;
(ii) any payment or distribution of assets of the
Issuer of any kind or character, whether in cash, property or
securities (including any payment or other distribution that may
be payable by reason of the payment of any other indebtedness of
the Issuer being subordinated to the payment of Subordinated
Debt), to which the holders of Subordinated Debt would be
entitled except for the subordination provisions of this Note,
shall be paid or delivered by any debtor, custodian, receiver,
trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, directly to the
Administrative Agent, on behalf of the holders of Senior Debt,
for application to the payment or prepayment of all such Senior
Debt remaining unpaid to the extent necessary to pay all such
Senior Debt in full in cash, after giving effect to any
concurrent payment or distribution to such holders of Senior
Debt; and
(iii) in the event that, notwithstanding the foregoing
subordination provisions of this Note, any holder of
Subordinated Debt shall have received any payment or
distribution with respect to Subordinated Debt contrary to such
foregoing subordination provisions, then and in such event such
payment or distribution shall be held in trust for the benefit
of, and shall be immediately paid or delivered by such holder of
Subordinated Debt to the Administrative Agent, on
Exhibit J-1
behalf of the holders of Senior Debt, for application to the
payment or prepayment of all Senior Debt remaining unpaid, to
the extent necessary to pay all such Senior Debt in full, after
giving effect to any concurrent payment or distribution to such
holders of Senior Debt.
(f) Attorney-in-Fact. In the event of a Reorganization, if
any holder of Subordinated Debt has not filed any claim, proof of claim
or other instrument of similar character with respect to Subordinated
Debt held by such holder within 20 days before the expiration of the
time to file the same, the Administrative Agent on behalf of any holder
of Subordinated Debt may, as an attorney-in-fact for such holder of
Subordinated Debt, file, any claim, proof of claim or other instrument
of similar character on behalf of such holder of Subordinated Debt, and
each holder of Subordinated Debt hereby appoints the Administrative
Agent as an attorney-in-fact for such holder of Subordinated Debt, to so
file any claim, proof of claim or such other instrument of similar
character. Each holder of Subordinated Debt ratifies all that the
Administrative Agent, as said attorney-in-fact, shall lawfully do or
cause to be done by virtue hereof and not in contravention of the terms
hereof. The power of attorney granted in this paragraph (f) is a power
coupled with an interest and shall be irrevocable.
(g) Holders of Subordinated Debt to be Subrogated to Rights
of Holders of Senior Debt. Subject to the indefeasible payment in full
in cash of all Senior Debt, the holders of Subordinated Debt shall be
subrogated to the rights of the holders of Senior Debt to receive
payments or distributions of assets of the Issuer made on account of the
Senior Debt until all amounts payable in respect of the Subordinated
Debt shall be paid in full, and for purposes of such subrogation, no
payment or distribution to the holders of Senior Debt of assets, whether
in cash, property or securities, distributable to the holders of Senior
Debt under the provisions hereof to which the holders of the
Subordinated Debt would be entitled except for the subordination
provisions of this Note, and no payment pursuant to the subordination
provisions of this Note to the holders of Senior Debt by the holders of
the Subordinated Debt shall, as between the Issuer, its creditors other
than the holders of Senior Debt, and the holders of the Subordinated
Debt, be deemed to be a payment by the Issuer to or on account of such
Senior Debt, it being understood that the subordination provisions of
this Note are, and are intended, solely for the purpose of defining the
relative rights of the holders of the Subordinated Debt, on the one
hand, and the holders of Senior Debt, on the other hand.
(h) Modifications to Subordinated Debt. So long as any
Senior Debt remains unpaid or the Loan Documents and all commitments to
provide Senior Debt thereunder shall not have been terminated, the
Issuer and the holders of Subordinated Debt will not (i) establish a
sinking fund for the payment or prepayment of or otherwise arrange for
the defeasance of any Subordinated Debt, or (ii) amend, modify or alter
in any way the terms of the Subordinated Debt or any document,
agreement, instrument or certificate relating thereto. Each holder of
Subordinated Debt agrees that it will not challenge, object to or in any
respect inhibit or otherwise interfere with the enforcement
Exhibit J-1
by the Administrative Agent or any holder of Senior Debt of any of their
rights or remedies in respect of the Senior Debt.
(i) No Liability to Holders of Subordinated Debt. Neither
the Administrative Agent nor any holder of Senior Debt shall have any
liability whatsoever to any holder of Subordinated Debt with respect to,
and each holder of Subordinated Debt waives any claim or defense which
it may now or hereafter have against the Administrative Agent or any
holder of Senior Debt arising from (i) any and all actions which the
Administrative Agent or the holders of Senior Debt take or omit to take
(including, without limitation, actions with respect to the creation,
perfection or continuation of liens upon any collateral securing any of
the Senior Debt, actions with respect to the occurrence of any default
under any Senior Debt, actions with respect to the foreclosure upon,
sale, release of, depreciation of or failure to realize upon any of such
collateral, and actions with respect to the collection of any claim for
all or any part of the Senior Debt from any account debtor, guarantor or
any other Person) with respect to the Senior Debt or the valuation, use,
protection or release of any collateral now or hereafter securing same
other than actions that involve the gross negligence or willful
misconduct of the Administrative Agent or any other holder of Senior
Debt; (ii) any right, now or hereafter existing, to require the
Administrative Agent or the holders of Senior Debt to proceed against or
exhaust any collateral at any time securing the Senior Debt or to
marshal any assets in favor of any holder of Subordinated Debt; (iii)
any notice of the incurrence or increase of Senior Debt, it being
understood that the Administrative Agent or the holders of Senior Debt
may make advances now or hereafter relating to the Senior Debt, without
notice to or authorization from the holders of Subordinated Debt, in
reliance upon the agreements set forth in this Note, including but not
limited to the provisions of paragraph (j) below; or (iv) any defense
based upon or arising by reason of (A) any disability or other defense
of the Issuer or any other Person or entity, or (B) any lack of
authority of any agent or any other Person or entity acting or
purporting to act on behalf of the Issuer or any holder of Subordinated
Debt, or (C) any failure by the Administrative Agent or any holder of
Senior Debt to properly perfect any Lien in any asset securing or
intended to secure all or any portion of the Senior Debt.
(j) Amendments to Senior Debt. The Administrative Agent
and/or the holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the holders of Subordinated
Debt, without incurring responsibility to such holders of Subordinated
Debt, and without impairing or releasing any of their rights, or any of
the obligations of such holders of Subordinated Debt hereunder, do any
of the following:
(i) change the amount, manner, place, or terms of
payment or change or extend the time of payment of or increase,
renew or alter the Senior Debt, or any part thereof, or enter
into or amend in any manner any agreement (including any related
loan agreement, promissory notes and collateral documents)
relating to the Senior Debt;
Exhibit J-1
(ii) sell, exchange, release, or otherwise deal with
all or any part of any property by whomsoever at any time
pledged or mortgaged to secure, or howsoever securing, the
Senior Debt, or any part thereof;
(iii) release anyone liable in any manner for the
payment or collection of the Senior Debt, or any part thereof or
waive any rights against any Person;
(iv) exercise or refrain from exercising any rights
against any of the Credit Parties and others; and
(v) apply any sums, by whomsoever paid or however
realized, to the Senior Debt.
(k) Legend. Each holder of Subordinated Debt will advise
each future holder or owner of Subordinated Debt that the Subordinated
Debt is subordinated to the Senior Debt in the manner and to the extent
set forth herein, and will place a legend on each note issued in
exchange or substitution for this Note (whether upon transfer or
otherwise), and on any other note, instrument, agreement and/or document
evidencing or related to the Subordinated Debt, indicating that such
note, instrument, agreement and/or document is subject to the foregoing
subordination provisions, and that by accepting or holding such other
note, instrument, agreement and/or document, each holder or owner is
bound by the terms of such subordination provisions to the same extent
that the Holder is bound.
10. AMENDMENT AND WAIVER. The provisions of this Note may be
modified, amended or waived, and the Issuer or Nexstar Broadcasting Group may
take any action herein prohibited, or omit to perform any act herein required to
be performed by it, only with the prior written consent of the Holder.
11. REMEDIES. The Holder will have all rights and remedies set forth
in this Note and all rights and remedies which the Holder has under any law. Any
Person having any rights under any provision of this Note will be entitled to
enforce such rights specifically (without posting a bond or other security), to
recover damages by reason of any breach of any such provision and to exercise
all other rights granted by law. All such rights and remedies will be cumulative
and non exclusive, and may be exercised singularly or concurrently. One or more
successive actions may be brought against the Issuer and/or Nexstar Broadcasting
Group, as the case may be, either in the same action or in separate actions, as
often as the Holder deems advisable, until the Total Amount of this Note has
been paid in full.
12. SUCCESSORS AND ASSIGNS. All covenants and agreements contained
in this Note by or on behalf of the Issuer, Nexstar Broadcasting Group or the
Holder will bind and inure to the benefit of their respective successors and
assigns whether so expressed or not. In addition, and whether or not any express
assignment has been made, the provisions of this Note which are for the benefit
of the Holder are also for the benefit of, and enforceable by, any subsequent
Holder.
13. SEVERABILITY. Whenever possible, each provision of this Note
will be
Exhibit J-1
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note is held to be prohibited by or invalid under
applicable law, then such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this Note.
14. DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings
of this Note are inserted for convenience only and do not constitute a
substantive part of this Note. The use of the word "including" in this Note is
by way of example rather than by limitation.
15. JURISDICTION AND VENUE. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
THE ISSUER OR NEXSTAR BROADCASTING GROUP WITH RESPECT TO THIS NOTE OR ANY OTHER
AGREEMENT CONTEMPLATED HEREBY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN NEW YORK, NEW YORK AND BY EXECUTION AND DELIVERY OF
THIS NOTE EACH OF THE ISSUER AND NEXSTAR BROADCASTING GROUP ACCEPTS FOR ITSELF
AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. EACH OF THE ISSUER
AND NEXSTAR BROADCASTING GROUP HEREBY WAIVES ANY CLAIM THAT NEW YORK, NEW YORK
IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE. EACH OF
THE ISSUER AND NEXSTAR BROADCASTING GROUP DESIGNATES AND APPOINTS CORPORATION
SERVICE COMPANY (AND SUCH OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY THE
ISSUER OR NEXSTAR BROADCASTING GROUP, AS THE CASE MAY BE, WITH THE CONSENT OF
THE HOLDER) TO RECEIVE ON ITS BEHALF, SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY THE
ISSUER AND NEXSTAR BROADCASTING GROUP TO BE EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT. A COPY OF SUCH PROCESS SO SERVED WILL BE MAILED BY REGISTERED
MAIL TO THE ISSUER OR NEXSTAR BROADCASTING GROUP, AS THE CASE MAY BE, AT ITS
CHIEF EXECUTIVE OFFICE, EXCEPT THAT UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW,
ANY FAILURE TO MAIL SUCH COPY WILL NOT AFFECT THE VALIDITY OF SERVICE OF
PROCESS. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE HOLDER TO BRING
PROCEEDINGS AGAINST THE ISSUER OR NEXSTAR BROADCASTING GROUP IN THE COURTS OF
ANY OTHER JURISDICTION. TO THE EXTENT PROVIDED BY LAW, SHOULD THE ISSUER OR
NEXSTAR BROADCASTING GROUP, AS THE CASE MAY BE, AFTER BEING SO SERVED, FAIL TO
APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT PROCESS OR PAPERS SO SERVED WITHIN
THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE MAILING THEREOF, THE ISSUER OR
NEXSTAR BROADCASTING GROUP, AS THE CASE MAY BE, WILL BE DEEMED IN DEFAULT AND AN
ORDER AND/OR JUDGMENT MAY BE ENTERED BY THE COURT AGAINST THE ISSUER OR NEXSTAR
BROADCASTING GROUP, AS THE CASE MAY BE, AS
Exhibit J-1
DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS THE CHOICE
OF FORUM FOR THE ISSUER AND NEXSTAR BROADCASTING GROUP SET FORTH IN THIS SECTION
15 WILL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT BY THE HOLDER OF ANY JUDGMENT
OBTAINED IN ANY OTHER FORUM OR THE TAKING BY THE HOLDER OF ANY ACTION TO ENFORCE
THE SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND EACH OF THE ISSUER AND
NEXSTAR BROADCASTING GROUP HEREBY WAIVES THE RIGHT TO COLLATERALLY ATTACK ANY
SUCH JUDGMENT OR ACTION.
16. WAIVER OF RIGHT TO JURY TRIAL. THE HOLDER, THE ISSUER AND
NEXSTAR BROADCASTING GROUP HEREBY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, TRIAL BY JURY in any litigation in any court with respect to, in connection
with, or arising out of this Note or any other agreement contemplated hereby or
the validity, protection, interpretation, collection or enforcement thereof; AND
EACH OF THE ISSUER AND NEXSTAR BROADCASTING GROUP HEREBY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE RIGHT TO INTERPOSE ANY SETOFF OR COUNTERCLAIM
OR CROSS-CLAIM in connection with any such litigation, irrespective of the
nature of such setoff, counterclaim or cross-claim except to the extent that the
failure so to assert any such setoff, counterclaim or crossclaim would
permanently preclude the prosecution of or recovery upon same. Notwithstanding
anything contained in this Note to the contrary, no claim may be made by the
Issuer or Nexstar Broadcasting Group against the Holder for any lost profits or
any special, indirect or consequential damages in respect of any breach or
wrongful conduct (other than willful misconduct constituting actual fraud) in
connection with, arising out of or in any way related to the transactions
contemplated by or consummated in connection with the loans described herein or
the issuance of this Note or any act, omission or event occurring in connection
therewith; and each of the Issuer and Nexstar Broadcasting Group hereby waives,
release and agree not to xxx upon any such claim for any such damages. THE
ISSUER, NEXSTAR BROADCASTING GROUP AND THE HOLDER AGREE THAT THIS SECTION 16 IS
A SPECIFIC AND MATERIAL ASPECT OF THIS NOTE AND ACKNOWLEDGE THAT THE INITIAL
HOLDER NAMED IN THIS NOTE WOULD NOT HAVE ACCEPTED THIS NOTE IF THIS SECTION 15
WERE NOT PART OF THIS NOTE.
17. TIME OF ESSENCE. Time is of the essence for the performance by
the Issuer and Nexstar Broadcasting Group of the obligations set forth in this
Note.
18. CANCELLATION. After the entire Total Amount of this Note has
been paid in full, this Note will be surrendered to the Issuer for cancellation
and will not be reissued; provided that such cancellation will not adversely
affect any provisions of this Note which by its terms may apply after such
payment in full.
19. GOVERNING LAW. This Note will be governed by and construed in
accordance with the domestic laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
Exhibit J-1
20. TRANSFER. The owner of this Note is the Holder, with respect to
principal and interest. Transfer of this Note may be effected by the Holder only
by surrender of this Note to the Issuer and either reissuance by the Issuer of
this Note to a new holder or holders or the issuance of a new Note to the new
holder or holders. It is intended that interest paid on this Note qualify for
the exemption from U.S. withholding tax as a portfolio debt instrument under
Section 871(h) and 881 (c) of the Internal Revenue Code.
The Issuer has executed and delivered this Note as of the date first
above written.
NEXSTAR FINANCE HOLDINGS, L.L.C.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
By their execution hereinbelow, the Holder and Nexstar Broadcasting
Group each consent and agree to be bound by the provisions of this Note
applicable to them.
[ABRY FUNDS]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
NEXSTAR BROADCASTING GROUP, L.L.C.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Exhibit J-1
EXHIBIT J-2
FORM OF PARENT SUBORDINATED CONVERTIBLE PROMISSORY NOTE
THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATE AND SUBJECT IN
RIGHT OF PAYMENT, TO THE EXTENT AND IN THE MANNER SET FORTH HEREIN, TO THE PRIOR
PAYMENT IN FULL OF ALL SENIOR DEBT (AS DEFINED HEREIN).
THE SECURITY REPRESENTED BY THIS CERTIFICATE WAS ORIGINALLY ISSUED ON
______________, AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
SUBORDINATED CONVERTIBLE PROMISSORY NOTE DUE ______
$___________________ _________________, 20___
FOR VALUE RECEIVED, NEXSTAR FINANCE HOLDINGS, INC. [or the ULTIMATE
PARENT], a Delaware corporation (the "Issuer"), hereby promises to pay to the
order of [ANY ABRY FUNDS], or its assigns (in any event, the "Holder"), on the
Maturity Date (or earlier as provided herein), the principal amount of Dollars
___________________________________ ($_______), to the extent not theretofore
paid (such unpaid principal amount at any time being the "Principal Amount"),
together with interest thereon calculated from the date hereof in accordance
with the provisions of this Note (the unpaid amount of any such accrued interest
at any time being the "Interest Amount" and the sum of the Principal Amount and
the Interest Amount at any time being the "Total Amount").
This Note is convertible into [common stock] of Nexstar Broadcasting
Group, Inc., a Delaware corporation ("Nexstar Broadcasting Group"), as provided
in Section 6 below.
Certain capitalized terms which are used and not otherwise defined in
this Note are defined in Section 8 below.
1. INTEREST.
(a) Rate and Accrual. Interest will accrue, on a daily
basis, on the Principal Amount from time to time at the rate of _____%
per annum. Interest will be computed on the basis of a 365 or 366 day
year, as applicable, and the actual number of days elapsed.
(b) Payment. The Interest Amount shall be due and payable on
the earlier to occur of an Event of Default or the Maturity Date, and in
addition shall be due and payable upon any prepayment of the Principal
Amount, subject to the terms of Section 9 hereof. The Interest Amount
may be prepaid at any time and from time to time, at the Issuer's
option, without premium or penalty, subject to the terms of Section 9
hereof.
Exhibit J-2
2. PAYMENT OF THE PRINCIPAL AMOUNT. Unless this Note has
theretofore been converted in accordance with Section 6, the Issuer will repay
the entire Principal Amount to the holder of this Note on the earlier to occur
of an Event of Default or the Maturity Date, subject to the terms of Section 9
hereof. The Issuer may, at its option, prepay at any time and from time to time
all or any part of the Principal Amount, without premium or penalty, subject to
the terms of Section 9 hereof. Any prepayment of all or any portion of the
Principal Amount will be accompanied by a payment of the applicable Interest
Amount.
3. APPLICATION AND METHOD OF PAYMENTS. Any amount paid to the
Holder by the Issuer in respect of this Note will be applied first, to reduce
the Interest Amount, and second, to reduce the Principal Amount. All payments in
respect of this Note will be made by wire transfer of immediately available
funds to an account designated by the Holder, and any payment so received after
1:00 p.m. New York, New York time on any day will be deemed to have been
received on the following Business Day. Any amount which (but for the
application of this sentence) would become payable in respect of this Note on a
day which is not a Business Day will instead become due and payable on the next
succeeding Business Day, and interest accruing on the Principal Amount will
reflect any such extension.
4. TRANSFER AND EXCHANGE. Upon surrender of this Note to the Issuer
at its chief executive office for exchange, the Issuer at its expense will
execute and deliver in exchange therefor a new Note or Notes, as requested by
the surrendering Holder, which represent the aggregate the unpaid Principal
Amount of the surrendered Note, registered as such Holder may request, dated so
that there will be no loss of interest on such surrendered Note and otherwise of
like tenor. The issuance of new Notes will be made without charge to the Holder
of the surrendered Note for any issuance tax in respect thereof or other cost
incurred by the Issuer in connection with such issuance.
5. REPLACEMENT. Upon receipt of evidence reasonably satisfactory to
the Issuer of the loss, theft, destruction or mutilation of this Note and, in
the case of any such loss, theft or destruction of this Note, upon delivery of
an unsecured indemnity agreement in such reasonable amount as the Issuer may
determine or, in the case of any such mutilation, upon the surrender of this
Note to the Issuer at its chief executive office for cancellation, the Issuer at
its expense will execute and deliver, in lieu thereof, a new Note of the same
class and of like tenor, dated so that there will be no loss of interest on such
lost, stolen, destroyed or mutilated Note.
6. EXCHANGE OF NOTE.
(a) Exchange Generally. If all or any portion of the
Principal Amount or the Interest Amount is not paid in full on or prior
to the earlier of the date of the occurrence of an Event of Default or
Maturity Date (the "Exchange Date"), then on the Maturity Date the Total
Amount of this Note will be automatically exchanged for fully paid and
nonassessable Class _____ Interests of Nexstar Broadcasting Group
("Class ______ Interests"), calculated to the nearest 1/1000 of a Class
______ Interest, unless on the Exchange Date all Senior Debt has been
indefeasibly paid in full in cash and all commitments to provide Senior
Debt have expired or been terminated. The number of
Exhibit J-2
Class ______ Interests issuable upon any such exchange shall be equal to
the Total Amount as of the close of business on the Exchange Date
divided by $__________.
(b) Procedure for Exchange. If all or any portion of the
Principal Amount or the Interest Amount is not paid in full in cash on
or prior to the Exchange Date and any or all Senior Debt has not been
indefeasibly paid in full in cash or any or all of the commitments to
provide Senior Debt have not expired or been terminated, then promptly
thereafter the Holder will surrender this Note to Nexstar Broadcasting
Group at the chief executive office of Nexstar Broadcasting Group, and
in such event this Note will be deemed to have been exchanged for Class
______ Interests as of the close of business on the Exchange Date, and
the Holder will be treated for all purposes as the record holder of such
Class ______ Interests at such time, regardless of when such surrender
occurs. Upon such surrender, Nexstar Broadcasting Group will contribute
this Note to the equity of the Issuer, directly, or indirectly through
one or more of Nexstar Broadcasting Group's subsidiaries, and the Issuer
will cancel this Note.
(c) Taxes on Exchange. The Issuer will pay any and all taxes
that may be payable in respect of the issue or delivery of Class ______
Interests on exchange of this Note. The Issuer will not, however, be
required to pay any income taxes of the Holder, and no such issue or
delivery will be made unless and until the Person requesting such issue
has paid to Nexstar Broadcasting Group the amount of any such tax or has
established to the satisfaction of Nexstar Broadcasting Group that such
tax has been paid.
7. COVENANTS. So long as all or any portion of the Principal Amount
or the Interest Amount remains unpaid, Nexstar Broadcasting Group will reserve
and keep available at all times from its authorized and unissued membership
interests, free from preemptive rights, solely for issuance upon the conversion
of this Note, a sufficient number of Class Interests to permit conversion in
full of this Note, and will take all actions which may be required so that such
interests may, when issued upon any such conversion, be validly issued, fully
paid and nonassessable.
8. DEFINED TERMS. As used in this Note, the following capitalized
terms have the following respective meanings:
"Administrative Agent" means Bank of America, N.A., as
Administrative Agent under each of the Credit Agreements, and any
successor Administrative Agent thereunder.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. Section 101, et seq.).
"Business Day" means a day (other than a Saturday or Sunday) on
which banks generally are open in New York, New York for the conduct of
substantially all of their activities.
Exhibit J-2
"Credit Agreements" means, collectively, the Nexstar Credit
Agreement and the Mission Credit Agreement.
"Event of Default" shall be deemed to have occurred upon the
occurrence of an Event of Default under Section 9.01 (f) or (g) of the
Credit Agreement.
"Loan Documents" has the meaning set forth in the Credit
Agreements.
"Maturity Date" means _________________________.
"Mission Credit Agreement" means the Amended and Restated Credit
Agreement dated as of February ___, 2003 by and among Mission
Broadcasting, Inc., various Banks referred to therein, Bank of America,
N.A., as Administrative Agent and as Issuing Bank, and Bear Xxxxxxx
Corporate Lending, Inc., as Syndication Agent, as the same may be
amended, restated, renewed, extended, supplemented or otherwise modified
from time to time.
"Nexstar Credit Agreement" means the Second Amended and Restated
Credit Agreement dated as of February ___, 2003 by and among Nexstar
Finance, L.L.C., Nexstar Broadcasting Group and certain of its direct
Subsidiaries, various Banks referred to therein, Bank of America, N.A.,
as Administrative Agent and as Issuing Bank, and Bear Xxxxxxx Corporate
Lending, Inc., as Syndication Agent, Royal Bank of Canada, General
Electric Capital Corporation, and Xxxxxxx Xxxxx Capital,
Co-Documentation Agents, as the same may be amended, restated, renewed,
extended, supplemented or otherwise modified from time to time.
"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.
"Reorganization" means any distribution of the assets of the
Issuer upon any voluntary or involuntary dissolution, winding-up, total
or partial liquidation or reorganization, or bankruptcy, insolvency,
receivership or other statutory or common law proceedings or
arrangements involving the Issuer or the readjustment of its liabilities
or any assignment for the benefit of creditors or any marshalling of its
assets or liabilities.
"Senior Debt" means (i) all Obligations (as defined in the
Nexstar Credit Agreement) (whether now outstanding or hereafter
incurred), whether as obligor, guarantor or otherwise, whether on
account of fees, indemnities, reimbursement obligations in respect of
letters of credit, costs, expenses or otherwise, and (ii) amendments,
restatements, supplements, renewals, extensions, increases,
rearrangements and substitutions of any such Obligations described in
the preceding clause (i).
Exhibit J-2
"Subordinated Debt" means the principal of and interest on the
indebtedness evidenced by this Note (including any amendment,
restatement, supplement, renewal, extension, increase, rearrangement or
substitution thereof), and any and all other amounts payable in
connection herewith, whether on account of fees, indemnities, costs,
expenses or otherwise.
"Subsidiary" means, as to any Person, (i) 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
(ii) 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.
9. SUBORDINATION.
(a) Agreement to Subordinate. The Issuer and the Holder
hereby agree, for themselves and their respective successors and
assigns, that the payment of the Subordinated Debt is and shall be
expressly "subordinate and junior in right of payment" (as such phrase
is defined below) to the prior payment in full of all Senior Debt to the
extent and in the manner hereinafter set forth; provided, that
notwithstanding anything contained in this Note to the contrary, the
provisions of this Section 9 shall not in any way limit or interfere
with the Issuer's right to repay Subordinated Debt pursuant to the terms
of Section 8.10(l) of the Nexstar Credit Agreement.
(b) Meaning of Subordinate and Junior in Right of Payment.
"Subordinate and Junior in right of payment" shall mean that no holder
of any part of the Subordinated Debt shall have any claim to the assets
of the Issuer on a parity with or prior to the claim of any holder of
any of the Senior Debt, whether such claim be made in connection with a
Reorganization or otherwise. Unless and until the Senior Debt shall have
been paid in full in cash and the Loan Documents and all commitments to
provide Senior Debt thereunder shall have terminated (other than any
indemnification and other expense reimbursement obligations under any
Loan Documents which are not yet due and payable) shall have terminated,
no holder of Subordinated Debt will take, retain, permit to exist,
demand or receive from the Issuer, and the Issuer will not make, give or
permit, directly or indirectly, by set-off, redemption, purchase or in
any other manner, (i) any payment of the whole or any part of the
Subordinated Debt (whether in respect of principal, interest or any
other amount, and whether prior to, at or after the scheduled maturity
thereof), (ii) any security or collateral for the whole or any part of
the Subordinated Debt or (iii) any guaranty of the whole or any part of
the Subordinated Debt. The Issuer expressly agrees that it will not make
any payment in respect of any of the Subordinated Debt, or take any
other action, in contravention of the subordination provisions of this
Note.
Exhibit J-2
(c) Payment of Senior Debt. For purposes of this Note, the
Senior Debt shall not be deemed to have been paid in full until and
unless the holders thereof shall have indefeasibly received payment in
full in cash of the principal of, interest on and fees, costs and
expenses and any and all other amounts payable in connection with the
Senior Debt. The subordination provisions in this Note are for the
benefit of and may be enforceable directly by the holders of Senior
Debt, and each such holder shall be deemed to have acquired such Senior
Debt in reliance upon such subordination provisions.
(d) Limitations on Subordinated Debt. The Holder agrees that
so long as any Senior Debt shall remain unpaid in cash and the Loan
Documents and all commitments to provide Senior Debt thereunder shall
not have terminated (other than any indemnification and other expense
reimbursement obligations under any Loan Documents which are not yet due
and payable), it will not exercise any rights it may have under this
Note or any other document, instrument or agreement relating to the
Subordinated Debt, or to accelerate, xxx for or collect the obligations
of the Issuer with respect to the Subordinated Debt, or to realize upon
any assets of the Issuer or to attach, levy upon or execute against any
assets of the Issuer, or to initiate any Reorganization of the Issuer.
(e) Subordinated Debt Subordinated to Prior Payment of All
Senior Debt on Reorganization, Sale of the Issuer; Etc. Subject to
Section 9(b) above, upon any payment or distribution of all or any of
the assets or securities of the Issuer of any kind or character, whether
in cash, property or securities, whether made pursuant to a
Reorganization relative to the Issuer or any of its properties or a
distribution of proceeds of or upon sale of all or any part of the
Issuer or any of its subsidiaries or any of their respective assets,
then in such event:
(i) the holders of Senior Debt shall be entitled to
receive payment in full in cash as provided herein of all
amounts due or to become due on or in respect of all Senior Debt
before any payment is made on account of or applied to the
Subordinated Debt;
(ii) any payment or distribution of assets of the
Issuer of any kind or character, whether in cash, property or
securities (including any payment or other distribution that may
be payable by reason of the payment of any other indebtedness of
the Issuer being subordinated to the payment of Subordinated
Debt), to which the holders of Subordinated Debt would be
entitled except for the subordination provisions of this Note,
shall be paid or delivered by any debtor, custodian, receiver,
trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, directly to the
Administrative Agent, on behalf of the holders of Senior Debt,
for application to the payment or prepayment of all such Senior
Debt remaining unpaid to the extent necessary to pay all such
Senior Debt in full in cash, after giving effect to any
concurrent payment or distribution to such holders of Senior
Debt; and
(iii) in the event that, notwithstanding the foregoing
subordination provisions of this Note, any holder of
Subordinated Debt shall have received any
Exhibit J-2
payment or distribution with respect to Subordinated Debt
contrary to such foregoing subordination provisions, then and in
such event such payment or distribution shall be held in trust
for the benefit of, and shall be immediately paid or delivered
by such holder of Subordinated Debt to the Administrative Agent,
on behalf of the holders of Senior Debt, for application to the
payment or prepayment of all Senior Debt remaining unpaid, to
the extent necessary to pay all such Senior Debt in full, after
giving effect to any concurrent payment or distribution to such
holders of Senior Debt.
(f) Attorney-in-Fact. In the event of a Reorganization, if
any holder of Subordinated Debt has not filed any claim, proof of claim
or other instrument of similar character with respect to Subordinated
Debt held by such holder within 20 days before the expiration of the
time to file the same, the Administrative Agent on behalf of any holder
of Subordinated Debt may, as an attorney-in-fact for such holder of
Subordinated Debt, file, any claim, proof of claim or other instrument
of similar character on behalf of such holder of Subordinated Debt, and
each holder of Subordinated Debt hereby appoints the Administrative
Agent as an attorney-in-fact for such holder of Subordinated Debt, to so
file any claim, proof of claim or such other instrument of similar
character. Each holder of Subordinated Debt ratifies all that the
Administrative Agent, as said attorney-in-fact, shall lawfully do or
cause to be done by virtue hereof and not in contravention of the terms
hereof. The power of attorney granted in this paragraph (f) is a power
coupled with an interest and shall be irrevocable.
(g) Holders of Subordinated Debt to be Subrogated to Rights
of Holders of Senior Debt. Subject to the indefeasible payment in full
in cash of all Senior Debt, the holders of Subordinated Debt shall be
subrogated to the rights of the holders of Senior Debt to receive
payments or distributions of assets of the Issuer made on account of the
Senior Debt until all amounts payable in respect of the Subordinated
Debt shall be paid in full, and for purposes of such subrogation, no
payment or distribution to the holders of Senior Debt of assets, whether
in cash, property or securities, distributable to the holders of Senior
Debt under the provisions hereof to which the holders of the
Subordinated Debt would be entitled except for the subordination
provisions of this Note, and no payment pursuant to the subordination
provisions of this Note to the holders of Senior Debt by the holders of
the Subordinated Debt shall, as between the Issuer, its creditors other
than the holders of Senior Debt, and the holders of the Subordinated
Debt, be deemed to be a payment by the Issuer to or on account of such
Senior Debt, it being understood that the subordination provisions of
this Note are, and are intended, solely for the purpose of defining the
relative rights of the holders of the Subordinated Debt, on the one
hand, and the holders of Senior Debt, on the other hand.
(h) Modifications to Subordinated Debt. So long as any
Senior Debt remains unpaid or the Loan Documents and all commitments to
provide Senior Debt thereunder shall not have been terminated, the
Issuer and the holders of Subordinated Debt will not (i) establish a
sinking fund for the payment or prepayment of or otherwise arrange for
the defeasance of any Subordinated Debt, or (ii) amend, modify or alter
in any
Exhibit J-2
way the terms of the Subordinated Debt or any document, agreement,
instrument or certificate relating thereto. Each holder of Subordinated
Debt agrees that it will not challenge, object to or in any respect
inhibit or otherwise interfere with the enforcement by the
Administrative Agent or any holder of Senior Debt of any of their rights
or remedies in respect of the Senior Debt.
(i) No Liability to Holders of Subordinated Debt. Neither
the Administrative Agent nor any holder of Senior Debt shall have any
liability whatsoever to any holder of Subordinated Debt with respect to,
and each holder of Subordinated Debt waives any claim or defense which
it may now or hereafter have against the Administrative Agent or any
holder of Senior Debt arising from (i) any and all actions which the
Administrative Agent or the holders of Senior Debt take or omit to take
(including, without limitation, actions with respect to the creation,
perfection or continuation of liens upon any collateral securing any of
the Senior Debt, actions with respect to the occurrence of any default
under any Senior Debt, actions with respect to the foreclosure upon,
sale, release of, depreciation of or failure to realize upon any of such
collateral, and actions with respect to the collection of any claim for
all or any part of the Senior Debt from any account debtor, guarantor or
any other Person) with respect to the Senior Debt or the valuation, use,
protection or release of any collateral now or hereafter securing same
other than actions that involve the gross negligence or willful
misconduct of the Administrative Agent or any holder of the Senior Debt;
(ii) any right, now or hereafter existing, to require the Administrative
Agent or the holders of Senior Debt to proceed against or exhaust any
collateral at any time securing the Senior Debt or to marshal any assets
in favor of any holder of Subordinated Debt; (iii) any notice of the
incurrence or increase of Senior Debt, it being understood that the
Administrative Agent or the holders of Senior Debt may make advances now
or hereafter relating to the Senior Debt, without notice to or
authorization from the holders of Subordinated Debt, in reliance upon
the agreements set forth in this Note, including but not limited to the
provisions of paragraph (j) below; or (iv) any defense based upon or
arising by reason of (A) any disability or other defense of the Issuer
or any other Person or entity, or (B) any lack of authority of any agent
or any other Person or entity acting or purporting to act on behalf of
the Issuer or any holder of Subordinated Debt, or (C) any failure by the
Administrative Agent or any holder of Senior Debt to properly perfect
any Lien in any asset securing or intended to secure all or any portion
of the Senior Debt.
(j) Amendments to Senior Debt. The Administrative Agent
and/or the holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the holders of Subordinated
Debt, without incurring responsibility to such holders of Subordinated
Debt, and without impairing or releasing any of their rights, or any of
the obligations of such holders of Subordinated Debt hereunder, do any
of the following:
(i) change the amount, manner, place, or terms of
payment or change or extend the time of payment of or increase,
renew or alter the Senior Debt, or any part thereof, or enter
into or amend in any manner any agreement (including
Exhibit J-2
any related loan agreement, promissory notes and collateral
documents) relating to the Senior Debt;
(ii) sell, exchange, release, or otherwise deal with
all or any part of any property by whomsoever at any time
pledged or mortgaged to secure, or howsoever securing, the
Senior Debt, or any part thereof;
(iii) release anyone liable in any manner for the
payment or collection of the Senior Debt, or any part thereof or
waive any rights against any Person;
(iv) exercise or refrain from exercising any rights
against any of the Credit Parties and others; and
(v) apply any sums, by whomsoever paid or however
realized, to the Senior Debt.
(k) Legend. Each holder of Subordinated Debt will advise
each future holder or owner of Subordinated Debt that the Subordinated
Debt is subordinated to the Senior Debt in the manner and to the extent
set forth herein, and will place a legend on each note issued in
exchange or substitution for this Note (whether upon transfer or
otherwise), and on any other note, instrument, agreement and/or document
evidencing or related to the Subordinated Debt, indicating that such
note, instrument, agreement and/or document is subject to the foregoing
subordination provisions, and that by accepting or holding such other
note, instrument, agreement and/or document, each holder or owner is
bound by the terms of such subordination provisions to the same extent
that the Holder is bound.
10. AMENDMENT AND WAIVER. The provisions of this Note may be
modified, amended or waived, and the Issuer or Nexstar Broadcasting Group may
take any action herein prohibited, or omit to perform any act herein required to
be performed by it, only with the prior written consent of the Holder.
11. REMEDIES. The Holder will have all rights and remedies set forth
in this Note and all rights and remedies which the Holder has under any law. Any
Person having any rights under any provision of this Note will be entitled to
enforce such rights specifically (without posting a bond or other security), to
recover damages by reason of any breach of any such provision and to exercise
all other rights granted by law. All such rights and remedies will be cumulative
and non exclusive, and may be exercised singularly or concurrently. One or more
successive actions may be brought against the Issuer and/or Nexstar Broadcasting
Group, as the case may be, either in the same action or in separate actions, as
often as the Holder deems advisable, until the Total Amount of this Note has
been paid in full.
12. SUCCESSORS AND ASSIGNS. All covenants and agreements contained
in this Note by or on behalf of the Issuer, Nexstar Broadcasting Group or the
Holder will bind and inure to the benefit of their respective successors and
assigns whether so expressed or not. In addition, and whether or not any express
assignment has been made, the provisions of this Note
Exhibit J-2
which are for the benefit of the Holder are also for the benefit of, and
enforceable by, any subsequent Holder.
13. SEVERABILITY. Whenever possible, each provision of this Note
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Note is held to be prohibited by or invalid
under applicable law, then such provision will be ineffective only to the extent
of such prohibition or invalidity, without invalidating the remainder of this
Note.
14. DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings
of this Note are inserted for convenience only and do not constitute a
substantive part of this Note. The use of the word "including" in this Note is
by way of example rather than by limitation.
15. JURISDICTION AND VENUE. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
THE ISSUER OR NEXSTAR BROADCASTING GROUP WITH RESPECT TO THIS NOTE OR ANY OTHER
AGREEMENT CONTEMPLATED HEREBY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN NEW YORK, NEW YORK AND BY EXECUTION AND DELIVERY OF
THIS NOTE EACH OF THE ISSUER AND NEXSTAR BROADCASTING GROUP ACCEPTS FOR ITSELF
AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. EACH OF THE ISSUER
AND NEXSTAR BROADCASTING GROUP HEREBY WAIVES ANY CLAIM THAT NEW YORK, NEW YORK
IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE. EACH OF
THE ISSUER AND NEXSTAR BROADCASTING GROUP DESIGNATES AND APPOINTS CORPORATION
SERVICE COMPANY (AND SUCH OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY THE
ISSUER OR NEXSTAR BROADCASTING GROUP, AS THE CASE MAY BE, WITH THE CONSENT OF
THE HOLDER) TO RECEIVE ON ITS BEHALF, SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY THE
ISSUER AND NEXSTAR BROADCASTING GROUP TO BE EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT. A COPY OF SUCH PROCESS SO SERVED WILL BE MAILED BY REGISTERED
MAIL TO THE ISSUER OR NEXSTAR BROADCASTING GROUP, AS THE CASE MAY BE, AT ITS
CHIEF EXECUTIVE OFFICE, EXCEPT THAT UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW,
ANY FAILURE TO MAIL SUCH COPY WILL NOT AFFECT THE VALIDITY OF SERVICE OF
PROCESS. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE HOLDER TO BRING
PROCEEDINGS AGAINST THE ISSUER OR NEXSTAR BROADCASTING GROUP IN THE COURTS OF
ANY OTHER JURISDICTION. TO THE EXTENT PROVIDED BY LAW, SHOULD THE ISSUER OR
NEXSTAR BROADCASTING GROUP, AS THE CASE MAY BE, AFTER BEING SO SERVED, FAIL TO
APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT PROCESS OR PAPERS SO SERVED WITHIN
THE NUMBER OF DAYS
Exhibit J-2
PRESCRIBED BY LAW AFTER THE MAILING THEREOF, THE ISSUER OR NEXSTAR BROADCASTING
GROUP, AS THE CASE MAY BE, WILL BE DEEMED IN DEFAULT AND AN ORDER AND/OR
JUDGMENT MAY BE ENTERED BY THE COURT AGAINST THE ISSUER OR NEXSTAR BROADCASTING
GROUP, AS THE CASE MAY BE, AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT,
PROCESS OR PAPERS THE CHOICE OF FORUM FOR THE ISSUER AND NEXSTAR BROADCASTING
GROUP SET FORTH IN THIS SECTION 15 WILL NOT BE DEEMED TO PRECLUDE THE
ENFORCEMENT BY THE HOLDER OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE
TAKING BY THE HOLDER OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE
JURISDICTION, AND EACH OF THE ISSUER AND NEXSTAR BROADCASTING GROUP HEREBY
WAIVES THE RIGHT TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
16. WAIVER OF RIGHT TO JURY TRIAL. THE HOLDER, THE ISSUER AND
NEXSTAR BROADCASTING GROUP HEREBY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, TRIAL BY JURY in any litigation in any court with respect to, in connection
with, or arising out of this Note or any other agreement contemplated hereby or
the validity, protection, interpretation, collection or enforcement thereof; AND
EACH OF THE ISSUER AND NEXSTAR BROADCASTING GROUP HEREBY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE RIGHT TO INTERPOSE ANY SETOFF OR COUNTERCLAIM
OR CROSS-CLAIM in connection with any such litigation, irrespective of the
nature of such setoff, counterclaim or cross-claim except to the extent that the
failure so to assert any such setoff, counterclaim or crossclaim would
permanently preclude the prosecution of or recovery upon same. Notwithstanding
anything contained in this Note to the contrary, no claim may be made by the
Issuer or Nexstar Broadcasting Group against the Holder for any lost profits or
any special, indirect or consequential damages in respect of any breach or
wrongful conduct (other than willful misconduct constituting actual fraud) in
connection with, arising out of or in any way related to the transactions
contemplated by or consummated in connection with the loans described herein or
the issuance of this Note or any act, omission or event occurring in connection
therewith; and each of the Issuer and Nexstar Broadcasting Group hereby waives,
release and agree not to xxx upon any such claim for any such damages. THE
ISSUER, NEXSTAR BROADCASTING GROUP AND THE HOLDER AGREE THAT THIS SECTION 16 IS
A SPECIFIC AND MATERIAL ASPECT OF THIS NOTE AND ACKNOWLEDGE THAT THE INITIAL
HOLDER NAMED IN THIS NOTE WOULD NOT HAVE ACCEPTED THIS NOTE IF THIS SECTION 15
WERE NOT PART OF THIS NOTE.
17. TIME OF ESSENCE. Time is of the essence for the performance by
the Issuer and Nexstar Broadcasting Group of the obligations set forth in this
Note.
18. CANCELLATION. After the entire Total Amount of this Note has
been paid in full, this Note will be surrendered to the Issuer for cancellation
and will not be reissued; provided that such cancellation will not adversely
affect any provisions of this Note which by its terms may apply after such
payment in full.
Exhibit J-2
19. GOVERNING LAW. This Note will be governed by and construed in
accordance with the domestic laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
20. TRANSFER. The owner of this Note is the Holder, with respect to
principal and interest. Transfer of this Note may be effected by the Holder only
by surrender of this Note to the Issuer and either reissuance by the Issuer of
this Note to a new holder or holders or the issuance of a new Note to the new
holder or holders. It is intended that interest paid on this Note qualify for
the exemption from U.S. withholding tax as a portfolio debt instrument under
Section 871(h) and 881 (c) of the Internal Revenue Code.
The Issuer has executed and delivered this Note as of the date first
above written.
NEXSTAR FINANCE HOLDINGS, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
By their execution hereinbelow, the Holder and Nexstar Broadcasting
Group each consent and agree to be bound by the provisions of this Note
applicable to them.
[ABRY FUNDS]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
NEXSTAR BROADCASTING GROUP, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Exhibit J-2
EXHIBIT K-1
FORM OF RATIFICATION AND ASSUMPTION AGREEMENT
(NEXSTAR BROADCAST GROUP, INC.)
THIS RATIFICATION AND ASSUMPTION AGREEMENT (this "Agreement"), dated as
of __________ ___, 20__, is made by NEXSTAR BROADCASTING GROUP, INC., a Delaware
corporation ("Group"), in favor of the Guaranteed Parties (as defined in the
Parent Guaranty Agreements and Nexstar Guaranty of Mission Obligations described
in Recital B below).
RECITALS:
A. Nexstar Finance, L.L.C., a Delaware limited liability company,
Nexstar Broadcasting Group, L.L.C., a Delaware limited liability company (the
"Ultimate Parent"), the other Subsidiaries of the Ultimate Parent parties
thereto, the several Banks parties thereto, Bank of America, N.A., as
Administrative Agent for the Banks (in such capacity, the "Administrative
Agent") and Bear Xxxxxxx Corporate Lending, Inc., as Syndication Agent, entered
into that certain Second Amended and Restated Credit Agreement dated as of
February 13, 2003 (the "Credit Agreement"). Capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to them in the Credit
Agreement.
B. The Ultimate Parent and other Parent Guarantors are also parties to
(i) the Parent Guaranty Agreements, (ii) the Nexstar Guaranty of Mission
Obligations, and (iii) certain Security Documents and other Loan Documents
executed and delivered in connection with such Guaranty Agreements.
C. Effective as of even date herewith, the Parent Guarantors other than
Nexstar Finance Holdings, L.L.C. and Nexstar Finance Holdings, Inc.
(collectively, the "Merged Entities") merged with and into Group, with Group
being the surviving Person of such mergers (collectively, the "Parent Mergers").
D. In order to obtain the consent of the Banks and Mission Banks to the
Parent Mergers, Group is required, among other things, to expressly assume the
obligations of the Merged Entities under, and ratify the effectiveness of, the
Guaranty Agreements and the other Loan Documents executed and delivered by the
Merged Entities in connection with the Credit Agreement and the Mission Credit
Agreement.
E. Group is executing and delivering this Agreement in order to satisfy
such requirements.
NOW, THEREFORE, in consideration of the foregoing and to induce the
Administrative Agent, the Banks and the Mission Banks to consent to the Parent
Mergers, Group hereby agrees as follows:
1. Assumption of Liabilities.
(a) As the successor by merger to each Merged Entity, Group
hereby expressly assumes all indebtedness, liabilities and obligations
of each Merged Entity under the Guaranty Agreements and other Loan
Documents to which such Merged Entity is a party.
(b) Any and all Liens, encumbrances, collateral, security
interests, UCC financing statements, transfers and any and all
assignments of any right, claim or interest in and to property of any
nature whatsoever heretofore given or granted to any of the Guaranteed
Parties by any of the Merged Entities are expressly assumed by Group,
and shall continue without interruption, in full force and effect,
surviving the Parent Mergers and shall apply to any and all such
property (i) owned by the Merged Entities prior to the Parent Mergers,
(ii) acquired by Group as a result of the Parent Mergers, or (iii)
acquired hereafter by Group.
2. Ratification of Loan Documents. Group hereby adopts,
ratifies and confirms all of the Loan Documents executed by the Merged Entities
and shall be substituted as a party to all such Loan Documents with the same
force and effect as if Group were originally a party thereto.
3. Representations and Warranties. To induce the Administrative
Agent, the Banks and the Mission Banks to consent to the Parent Mergers, Group
represents and warrants to the Administrative Agent, the Banks and the Mission
Banks as follows:
(a) Existence; Compliance with Law. Group (a) is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware; (b) has the corporate power and
authority, legal right and all governmental licenses, authorizations,
consents and approvals to own (or hold under lease) and operate its
property or assets and conduct the business in which it is currently
engaged except, with respect only to such legal right and governmental
licenses, authorizations, consents and approvals, where the failure to
possess any such legal right or governmental license, authorization,
consent or approvals could not reasonably be expected to have a Material
Adverse Effect; (c) has the corporate power and authority, legal right
and all governmental licenses, authorizations, consents and approvals to
execute, deliver, and perform its obligations under the Loan Documents
to which it is a party (whether by assumption or otherwise); (d) is duly
qualified to do business as a foreign entity, and licensed and in good
standing, under the laws of each jurisdiction where its ownership, lease
or operation of property or the nature or conduct of its business
requires such qualification or license, except where the failure so to
qualify could not reasonably be expected to have a Material Adverse
Effect; (e) is in compliance, in all material respects, with all
Requirements of Law; and (f) has filed Certificates of Merger with the
Delaware Secretary of State effecting the Parent Mergers and has
delivered a certified copy of each such Certificate of Merger to the
Administrative Agent.
(b) Authorization; No Contravention. The execution, delivery
and performance by Group of this Agreement and performance by Group of
its obligations under the Loan Documents to which it is a party (whether
by assumption or otherwise) have been duly authorized by all necessary
corporate action and do not and will not (i)
Exhibit K-1
contravene the terms of any Charter Documents of Group, (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
Group is a party (other than Liens under the Loan Documents assumed and
ratified by Group pursuant to this Agreement) or any order, injunction,
writ or decree of any Governmental Authority to which Group is a party
or its property is subject, or (iii) violate any Requirement of Law.
(c) 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 Agreement or
any other Loan Document, except that (i) certain of the Loan Documents
may have to be filed with the FCC after the effective date hereof and
(ii) the prior approval of the FCC may be required for the Banks to
exercise certain of their rights with respect to the Stations.
(d) 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 Agreement shall not result in any default under any Contractual
Obligation of any Credit Party in any respect.
(e) Binding Effect. This Agreement, the Credit Agreement and
each other Loan Document to which Group is a party (whether by
assumption or otherwise) constitute the legal, valid and binding
obligations of Group, enforceable against Group in accordance with their
respective terms, except as 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.
(f) 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
date hereof, both before and after giving effect to the Parent Mergers,
as if such representations and warranties were being made on and as of
the date hereof.
(g) Perfection of Liens. All filings, registrations and
recordings necessary or appropriate to create, preserve, protect and
perfect the security interests granted by the Merged Entities to the
Collateral Agent and hereby assumed by Group in respect of the
Collateral owned by Group have been accomplished and the Liens and
security interests granted to the Collateral Agent pursuant to the
Security Documents in and to such Collateral constitute a perfected
security interest therein superior and prior to the rights of all other
Persons therein and subject to no other Liens (other than Liens
permitted by the Credit Agreement), and will be entitled to all the
rights, priorities and benefits afforded by the Uniform Commercial Code
or other relevant law as enacted in any relevant jurisdiction to
perfected security interests, in each case to the extent that such
Collateral consists of the type of property in which a security interest
may be perfected by filing a
Exhibit K-1
financing statement under the Uniform Commercial Code as enacted in any
relevant jurisdiction or in the United States Patent and Trademark
Office or the United States Copyright Office.
(h) Chief Executive Office; Records. The chief place of
business and chief executive office of Group and the office where Group
keeps the originals of all documents evidencing all Accounts, Contract
Rights and Trade Secret Rights (as each such term is defined in the
Security Agreement) of Group and the only original books of account and
records of Group relating thereto are, and will continue to be, kept at
such chief executive office located at the address specified on Schedule
A attached hereto. The organizational number of Group is as set forth on
Schedule A attached hereto. Group does not have or operate under, nor
has had or operated under, in any jurisdiction since July 1, 1996, any
name except its legal name as set forth on the signature page hereto or
such other names specified on Schedule A attached hereto, nor has Group
ever been organized under the laws of any jurisdiction other than the
State of Delaware.
(i) Marks. Group is the true and lawful owner of, or
otherwise has the right to use, the Marks (as such term is defined in
the Security Agreement) listed on Schedule B hereto and said listed
Marks include all the United States federal registrations or
applications registered in the United States Patent and Trademark Office
that such Group now owns. Group represents and warrants that it owns or
is licensed to use or is not prohibited from using all Marks that it
uses. Group further warrants that it is aware of no third-party claim
that any aspect of Group's present or contemplated business operations
infringes or will infringe any Xxxx or trade name. Group represents and
warrants that it is the beneficial and record owner of all United States
registrations and applications listed on Schedule B hereto and that said
registrations are valid and subsisting, have not been canceled and that
Group is not aware of any third-party claim that any of said
registrations are invalid or unenforceable or is not aware that there is
any reason that any of said applications will not pass to registration.
(j) Licenses and Assignments. Except as otherwise permitted
by the Credit Agreement and other than the license agreements listed on
Schedule C hereto, Group agrees not to divest itself of any right under
any Xxxx other than in the ordinary course of business absent prior
written approval of the Collateral Agent.
(k) Trade Secret Rights; Patents; Copyrights. Group is the
true and lawful owner of all rights in (a) all Trade Secret Rights (as
such term is defined in the Security Agreement), (b) the Patents (as
such term is defined in the Security Agreement) listed on Schedule D
hereto and (c) the Copyrights (as such term is defined in the Security
Agreement) listed on Schedule E hereto. Said Patents constitute all the
United States patents and applications for patents that Group now owns
or is licensed to use and said Copyrights constitute all the United
States registered copyrights that Group now owns. Group represents and
warrants that it owns or is licensed to use all Patents and Copyrights
that it now owns or uses. Group further warrants that it has no
knowledge of any third-party claim that any aspect of Group's present or
contemplated business operations
infringes or will infringe any patent or any copyright or
misappropriates any trade secret or proprietary information.
(l) Stock. All of the Stock (as such term is defined in the
Pledge and Security Agreement) owned by Group on the date hereof is
described on Schedule F hereto, which Stock consists of the number and
class of Stock and constitutes the percentage ownership of each class of
Stock of the relevant Pledged Corporation (as such term is defined in
the Pledge and Security Agreement) as is described on Schedule F hereto.
(m) Notes. All of the Notes (as such term is defined in the
Pledge and Security Agreement) owned by Group on the date hereof are
described on Schedule F hereto.
(n) Partnership Interests. All of the Partnership Interests
(as such term is defined in the Pledge and Security Agreement) owned by
Group on the date hereof are described on Schedule F hereto, which
Partnership Interests consist of the number and class of Partnership
Interests and constitute the percentage ownership of each class of
Partnership Interests of the relevant Pledged Partnership (as such term
is defined in the Pledge and Security Agreement) as is described on
Schedule F hereto.
(o) LLC Interests. All of the LLC Interests (as such term is
defined in the Pledge and Security Agreement) held by Group on the date
hereof are described on Schedule F hereto, which LLC Interests consist
of the number and class of LLC Interests and constitute the percentage
ownership of each class of LLC Interests of the relevant Pledged Limited
Liability Company (as such term is defined in the Pledge and Security
Agreement) as is described on Schedule F hereto.
5. Further Assurances. Group agrees to execute and deliver to
Administrative Agent any and all documents requested by Administrative Agent and
reasonably necessary to continue, without interruption, the Liens and security
interests described in the Security Documents hereby assumed and ratified by
Group, including, without limitation, UCC financing statements and amendments to
reflect the Parent Mergers.
6. APPLICABLE LAW. THIS AGREEMENT 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.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
Exhibit K-1
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly
executed and delivered by its proper and duly authorized officer effective as of
the date first written above.
NEXSTAR BROADCASTING GROUP, INC.
By:
---------------------------
Name:
Title:
Exhibit K-1
SCHEDULE A
TO
RATIFICATION AND ASSUMPTION AGREEMENT
CHIEF EXECUTIVE OFFICE; ORGANIZATIONAL NUMBER; OTHER NAMES
Exhibit K-1
SCHEDULE B
TO
RATIFICATION AND ASSUMPTION AGREEMENT
A. SCHEDULE OF U.S. TRADEMARK REGISTRATIONS
REGISTERED XXXX REGISTRATION NO. REGISTRATION DATE
--------------------------- ---------------------------- ---------------------
B. SCHEDULE OF PENDING APPLICATIONS FOR U.S. TRADEMARK REGISTRATIONS ON THE
BASIS OF USE IN COMMERCE UNDER 17 U.S.C. Section 1051(a)
XXXX SERIAL NO. FILING DATE
--------------------------- ---------------------------- ---------------------
C. SCHEDULE OF PENDING APPLICATIONS FOR U.S. TRADEMARK REGISTRATIONS ON THE
BASIS OF INTENT TO USE THE XXXX IN COMMERCE UNDER 17 U.S.C. Section
1051(b)
XXXX SERIAL NO. FILING DATE
--------------------------- ---------------------------- ---------------------
Exhibit K-1
SCHEDULE C
TO
RATIFICATION AND ASSUMPTION AGREEMENT
LICENSE AGREEMENTS AND ASSIGNMENTS
Exhibit K-1
SCHEDULE D
TO
RATIFICATION AND ASSUMPTION AGREEMENT
PATENTS AND APPLICATIONS
Patent Number Date Issued Title
--------------------------- ---------------------------- ---------------------
Exhibit K-1
SCHEDULE E
TO
RATIFICATION AND ASSUMPTION AGREEMENT
COPYRIGHTS AND APPLICATIONS
Exhibit K-1
SCHEDULE F
TO
RATIFICATION AND ASSUMPTION AGREEMENT
DESCRIPTION OF PLEDGED COLLATERAL
I. Pledged Stock
Class Stock Percentage Number
Stock of Certificate of Of Par
Issuer Stock No(s). Ownership Shares Value
----------------- ----------- ------------ ------------- --------- --------
II. Notes
Maker Principal Amount
--------------------------------------------------- -------------------------
III. Partnership Interests
Pledged Partnership Percentage of Ownership Class of Partnership Interest
(if applicable)
---------------------- ------------------------ ----------------------------
---------------------- ------------------------ ----------------------------
IV. LLC Interests
Pledged Limited Liability
Company Percentage of Ownership Class of LLC Interest
----------------------------- ------------------------ ---------------------
Exhibit K-1
EXHIBIT K-2
FORM OF RATIFICATION AND ASSUMPTION AGREEMENT
(NEXSTAR FINANCE HOLDINGS, INC.)
THIS RATIFICATION AND ASSUMPTION AGREEMENT (this "Agreement"), dated as
of __________ ___, 20__, is made by NEXSTAR FINANCE HOLDINGS, INC., a Delaware
corporation ("Holdings"), in favor of the Guaranteed Parties (as defined in the
Guaranty Agreements described in Recital B below).
RECITALS:
A. Nexstar Finance, L.L.C., a Delaware limited liability company,
Nexstar Broadcasting Group, L.L.C., a Delaware limited liability company (the
"Ultimate Parent"), Nexstar Finance Holdings, L.L.C. ("Holdings LLC"), Holdings,
the other Subsidiaries of the Ultimate Parent parties thereto, the several Banks
parties thereto, Bank of America, N.A., as Administrative Agent for the Banks
(in such capacity, the "Administrative Agent") and Bear Xxxxxxx Corporate
Lending, Inc., as Syndication Agent, entered into that certain Second Amended
and Restated Credit Agreement dated as of February 13, 2003 (the "Credit
Agreement"). Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Credit Agreement.
B. Holdings LLC is a party to (i) a Parent Guaranty Agreements, (ii) the
Nexstar Guaranty of Mission Obligations, and (iii) certain Security Documents
and other Loan Documents executed and delivered in connection with such Guaranty
Agreements.
C. Effective as of even date herewith, Holdings LLC merged with and into
Holdings, with Holdings being the surviving Person of such mergers (the "Holdco
Merger").
D. In order to obtain the consent of the Banks and Mission Banks to the
Holdco Merger, Holdings is required, among other things, to expressly assume the
obligations of Holdings LLC under, and ratify the effectiveness of, the Guaranty
Agreements referred to in Recital B and the other Loan Documents executed and
delivered by Holdings LLC in connection with the Credit Agreement and the
Mission Credit Agreement.
E. Holdings is executing and delivering this Agreement in order to
satisfy such requirements.
NOW, THEREFORE, in consideration of the foregoing and to induce the
Administrative Agent, the Banks and the Mission Banks to consent to the Holdco
Merger, Holdings hereby agrees as follows:
Exhibit K-2
1. Assumption of Liabilities.
(a) As the successor by merger to Holdings LLC, Holdings hereby
expressly assumes all indebtedness, liabilities and obligations of Holdings LLC
under the Guaranty Agreements and other Loan Documents to which Holdings LLC is
a party.
(b) Any and all Liens, encumbrances, collateral, security interests,
UCC financing statements, transfers and any and all assignments of any right,
claim or interest in and to property of any nature whatsoever heretofore given
or granted to any of the Guaranteed Parties by Holdings LLC are expressly
assumed by Holdings, and shall continue without interruption, in full force and
effect, surviving the Holdco Merger and shall apply to any and all such property
(i) owned by Holdings LLC prior to the Holdco Merger, (ii) acquired by Holdings
as a result of the Holdco Merger, or (iii) acquired hereafter by Holdings.
2. Ratification of Loan Documents. Holdings hereby adopts, ratifies
and confirms all of the Loan Documents executed by Holdings LLC and shall be
substituted as a party to all such Loan Documents with the same force and effect
as if Holdings were originally a party thereto.
3. Representations and Warranties. To induce the Administrative
Agent, the Banks and the Mission Banks to consent to the Holdco Merger, Holdings
represents and warrants to the Administrative Agent, the Banks and the Mission
Banks as follows:
(a) Existence; Compliance with Law. Holdings (a) is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware; (b) has the corporate power and
authority, legal right and all governmental licenses, authorizations,
consents and approvals to own (or hold under lease) and operate its
property or assets and conduct the business in which it is currently
engaged except, with respect only to such legal right and governmental
licenses, authorizations, consents and approvals, where the failure to
possess any such legal right or governmental license, authorization,
consent or approvals could not reasonably be expected to have a Material
Adverse Effect; (c) has the corporate power and authority, legal right
and all governmental licenses, authorizations, consents and approvals to
execute, deliver, and perform its obligations under the Loan Documents
to which it is a party (whether by assumption or otherwise); (d) is duly
qualified to do business as a foreign entity, and licensed and in good
standing, under the laws of each jurisdiction where its ownership, lease
or operation of property or the nature or conduct of its business
requires such qualification or license, except where the failure so to
qualify could not reasonably be expected to have a Material Adverse
Effect; (e) is in compliance, in all material respects, with all
Requirements of Law; and (f) has filed a Certificate of Merger with the
Delaware Secretary of State effecting the Holdco Merger and has
delivered a certified copy of such Certificate of Merger to the
Administrative Agent.
(b) Authorization; No Contravention. The execution, delivery
and performance by Holdings of this Agreement and performance by
Holdings of its obligations under the Loan Documents to which it is a
party (whether by assumption or
Exhibit K-2
otherwise) have been duly authorized by all necessary corporate action
and do not and will not (i) contravene the terms of any Charter
Documents of Holdings, (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 Holdings is a party
(other than Liens under the Loan Documents assumed and ratified by
Holdings pursuant to this Agreement) or any order, injunction, writ or
decree of any Governmental Authority to which Holdings is a party or its
property is subject, or (iii) violate any Requirement of Law.
(c) 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 Agreement or
any other Loan Document, except that (i) certain of the Loan Documents
may have to be filed with the FCC after the effective date hereof and
(ii) the prior approval of the FCC may be required for the Banks to
exercise certain of their rights with respect to the Stations.
(d) 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 Agreement shall not result in any default under any Contractual
Obligation of any Credit Party in any respect.
(e) Binding Effect. This Agreement, the Credit Agreement and
each other Loan Document to which Holdings is a party (whether by
assumption or otherwise) constitute the legal, valid and binding
obligations of Holdings, enforceable against Holdings in accordance with
their respective terms, except as 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.
(f) 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
date hereof, both before and after giving effect to the Holdco Merger,
as if such representations and warranties were being made on and as of
the date hereof.
(g) Perfection of Liens. All filings, registrations and
recordings necessary or appropriate to create, preserve, protect and
perfect the security interests granted by Holdings LLC to the Collateral
Agent and hereby assumed by Holdings in respect of the Collateral owned
by Holdings have been accomplished and the Liens and security interests
granted to the Collateral Agent pursuant to the Security Documents in
and to such Collateral constitute a perfected security interest therein
superior and prior to the rights of all other Persons therein and
subject to no other Liens (other than Liens permitted by the Credit
Agreement), and will be entitled to all the rights, priorities and
benefits afforded by the Uniform Commercial Code or other relevant law
as enacted in
Exhibit K-2
any relevant jurisdiction to perfected security interests, in each case
to the extent that such Collateral consists of the type of property in
which a security interest may be perfected by filing a financing
statement under the Uniform Commercial Code as enacted in any relevant
jurisdiction or in the United States Patent and Trademark Office or the
United States Copyright Office.
(h) Chief Executive Office; Records. The chief place of
business and chief executive office of Holdings and the office where
Holdings keeps the originals of all documents evidencing all Accounts,
Contract Rights and Trade Secret Rights (as each such term is defined in
the Security Agreement) of Holdings and the only original books of
account and records of Holdings relating thereto are, and will continue
to be, kept at such chief executive office located at the address
specified on Schedule A attached hereto. The organizational number of
Holdings is as set forth on Schedule A attached hereto. Holdings does
not have or operate under, nor has had or operated under, in any
jurisdiction since July 1, 1996, any name except its legal name as set
forth on the signature page hereto or such other names specified on
Schedule A attached hereto, nor has Holdings ever been organized under
the laws of any jurisdiction other than the State of Delaware.
(i) Marks. Holdings is the true and lawful owner of, or
otherwise has the right to use, the Marks (as such term is defined in
the Security Agreement) listed on Schedule B hereto and said listed
Marks include all the United States federal registrations or
applications registered in the United States Patent and Trademark Office
that Holdings now owns. Holdings represents and warrants that it owns or
is licensed to use or is not prohibited from using all Marks that it
uses. Holdings further warrants that it is aware of no third-party claim
that any aspect of Holdings' present or contemplated business operations
infringes or will infringe any Xxxx or trade name. Holdings represents
and warrants that it is the beneficial and record owner of all United
States registrations and applications listed on Schedule B hereto and
that said registrations are valid and subsisting, have not been canceled
and that Holdings is not aware of any third-party claim that any of said
registrations are invalid or unenforceable or is not aware that there is
any reason that any of said applications will not pass to registration.
(j) Licenses and Assignments. Except as otherwise permitted
by the Credit Agreement and other than the license agreements listed on
Schedule C hereto, Holdings agrees not to divest itself of any right
under any Xxxx other than in the ordinary course of business absent
prior written approval of the Collateral Agent.
(k) Trade Secret Rights; Patents; Copyrights. Holdings is
the true and lawful owner of all rights in (a) all Trade Secret Rights
(as such term is defined in the Security Agreement), (b) the Patents (as
such term is defined in the Security Agreement) listed on Schedule D
hereto and (c) the Copyrights (as such term is defined in the Security
Agreement) listed on Schedule E hereto. Said Patents constitute all the
United States patents and applications for patents that Holdings now
owns or is licensed to use and said Copyrights constitute all the United
States registered copyrights that Holdings now owns. Holdings represents
and warrants that it owns or is licensed to use all Patents and
Exhibit K-2
Copyrights that it now owns or uses. Holdings further warrants that it
has no knowledge of any third-party claim that any aspect of Holdings'
present or contemplated business operations infringes or will infringe
any patent or any copyright or misappropriates any trade secret or
proprietary information.
(l) Stock. All of the Stock (as such term is defined in the
Pledge and Security Agreement) owned by Holdings on the date hereof is
described on Schedule F hereto, which Stock consists of the number and
class of Stock and constitutes the percentage ownership of each class of
Stock of the relevant Pledged Corporation (as such term is defined in
the Pledge and Security Agreement) as is described on Schedule F hereto.
(m) Notes. All of the Notes (as such term is defined in the
Pledge and Security Agreement) owned by Holdings on the date hereof are
described on Schedule F hereto.
(n) Partnership Interests. All of the Partnership Interests
(as such term is defined in the Pledge and Security Agreement) owned by
Holdings on the date hereof are described on Schedule F hereto, which
Partnership Interests consist of the number and class of Partnership
Interests and constitute the percentage ownership of each class of
Partnership Interests of the relevant Pledged Partnership (as such term
is defined in the Pledge and Security Agreement) as is described on
Schedule F hereto.
(o) LLC Interests. All of the LLC Interests (as such term is
defined in the Pledge and Security Agreement) held by Holdings on the
date hereof are described on Schedule F hereto, which LLC Interests
consist of the number and class of LLC Interests and constitute the
percentage ownership of each class of LLC Interests of the relevant
Pledged Limited Liability Company (as such term is defined in the Pledge
and Security Agreement) as is described on Schedule F hereto.
5. Further Assurances. Holdings agrees to execute and deliver to
Administrative Agent any and all documents requested by Administrative Agent and
reasonably necessary to continue, without interruption, the Liens and security
interests described in the Security Documents hereby assumed and ratified by
Holdings, including, without limitation, UCC financing statements and amendments
to reflect the Holdco Merger.
6. APPLICABLE LAW. THIS AGREEMENT 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.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
Exhibit K-2
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly
executed and delivered by its proper and duly authorized officer effective as of
the date first written above.
NEXSTAR FINANCE HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
Exhibit K-2
SCHEDULE A
TO
RATIFICATION AND ASSUMPTION AGREEMENT
CHIEF EXECUTIVE OFFICE; ORGANIZATIONAL NUMBER; OTHER NAMES
Exhibit K-2
SCHEDULE B
TO
RATIFICATION AND ASSUMPTION AGREEMENT
A. SCHEDULE OF U.S. TRADEMARK REGISTRATIONS
REGISTERED XXXX REGISTRATION NO. REGISTRATION DATE
-------------------------- --------------------------- -------------------------
B. SCHEDULE OF PENDING APPLICATIONS FOR U.S. TRADEMARK REGISTRATIONS ON THE
BASIS OF USE IN COMMERCE UNDER 17 U.S.C. Section 1051(a)
XXXX SERIAL NO. FILING DATE
-------------------------- --------------------------- -------------------------
C. SCHEDULE OF PENDING APPLICATIONS FOR U.S. TRADEMARK REGISTRATIONS ON THE
BASIS OF INTENT TO USE THE XXXX IN COMMERCE UNDER 17 U.S.C. Section
1051(b)
XXXX SERIAL NO. FILING DATE
-------------------------- --------------------------- -------------------------
Exhibit K-2
SCHEDULE C
TO
RATIFICATION AND ASSUMPTION AGREEMENT
LICENSE AGREEMENTS AND ASSIGNMENTS
Exhibit K-2
SCHEDULE D
TO
RATIFICATION AND ASSUMPTION AGREEMENT
PATENTS AND APPLICATIONS
Patent Number Date Issued Title
-------------------------- --------------------------- -------------------------
Exhibit K-2
SCHEDULE E
TO
RATIFICATION AND ASSUMPTION AGREEMENT
COPYRIGHTS AND APPLICATIONS
Exhibit K-2
SCHEDULE F
TO
RATIFICATION AND ASSUMPTION AGREEMENT
DESCRIPTION OF PLEDGED COLLATERAL
I. Pledged Stock
Class Stock Percentage Number
Stock of Certificate of Of Par
Issuer Stock No(s). Ownership Shares Value
----------------- ----------- ------------ ------------- --------- --------
II. Notes
Maker Principal Amount
--------------------------------------------------- -------------------------
III. Partnership Interests
Pledged Partnership Percentage of Ownership Class of Partnership Interest
(if applicable)
---------------------- ------------------------ ----------------------------
---------------------- ------------------------ ----------------------------
IV. LLC Interests
Pledged Limited Liability
Company Percentage of Ownership Class of LLC Interest
----------------------------- ------------------------ ---------------------
Exhibit K-2
EXHIBIT K-3
FORM OF RATIFICATION AND ASSUMPTION AGREEMENT
(NEXSTAR FINANCE, INC.)
THIS RATIFICATION AND ASSUMPTION AGREEMENT (this "Agreement"), dated as
of __________ ___, 20__,, is made by NEXSTAR FINANCE, INC., a Delaware
corporation ("Finance"), in favor of the Banks (as defined in the Credit
Agreement described in Recital A below) and the Guaranteed Parties (as defined
in the Nexstar Guaranty of Mission Obligations described in Recital B below).
RECITALS:
A. 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"), Finance, the other Subsidiaries of
the Ultimate Parent parties thereto, the several Banks parties thereto, Bank of
America, N.A., as Administrative Agent for the Banks (in such capacity, the
"Administrative Agent"), and Bear Xxxxxxx Corporate Lending, Inc., as
Syndication Agent, entered into that certain Second Amended and Restated Credit
Agreement dated as of February 13, 2003 (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 is also a party to (i) certain promissory notes
executed and delivered pursuant to Section 2.02(b) of the Credit Agreement, (ii)
the Nexstar Guaranty of Mission Obligations, and (ii) certain Security Documents
and other Loan Documents executed and delivered in connection with the
Borrower's Obligations under the Credit Agreement, such notes and such Guaranty
Agreement.
C. Effective as of even date herewith, the Borrower merged with and
into Finance, with Finance being the surviving Person of such merger (the
"Borrower Merger").
D. In order to obtain the consent of the Banks and Mission Banks to
the Borrower Merger, Finance is required, among other things, to expressly
assume the obligations of the Borrower under, and ratify the effectiveness of,
the Credit Agreement, such promissory notes, the Nexstar Guaranty of Mission
Obligations and the other Loan Documents executed and delivered by the Borrower
in connection with the Credit Agreement and the Mission Credit Agreement.
E. Finance is executing and delivering this Agreement in order to
satisfy such requirements.
NOW, THEREFORE, in consideration of the foregoing and to induce the
Administrative Agent, the Banks and the Mission Banks to consent to the Borrower
Merger, Finance hereby agrees as follows:
Exhibit K-3
1. Assumption of Liabilities.
(a) As the successor by merger to the Borrower, Finance
hereby expressly assumes all indebtedness, liabilities and obligations of the
Borrower under the Credit Agreement, the promissory notes executed and delivered
in connection therewith, the Nexstar Guaranty of Mission Obligations and the
other Loan Documents to which the Borrower is a party.
(b) Any and all Liens, encumbrances, collateral, security
interests, UCC financing statements, transfers and any and all assignments of
any right, claim or interest in and to property of any nature whatsoever
heretofore given or granted to the Banks or any of the other Guaranteed Parties
by the Borrower are expressly assumed by Finance, and shall continue without
interruption, in full force and effect, surviving the Borrower Merger and shall
apply to any and all such property (i) owned by the Borrower prior to the
Borrower Merger, (ii) acquired by Finance as a result of the Borrower Merger, or
(iii) acquired hereafter by Finance.
2. Ratification of Loan Documents. Finance hereby adopts, ratifies
and confirms all of the Loan Documents executed by the Borrower and shall be
substituted as a party to all such Loan Documents with the same force and effect
as if Finance were originally a party thereto.
3. Representations and Warranties. To induce the Administrative
Agent, the Banks and the Mission Banks to consent to the Borrower Merger,
Finance represents and warrants to the Administrative Agent, the Banks and the
Mission Banks as follows:
(a) Existence; Compliance with Law. Finance (a) is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware; (b) has the corporate power and
authority, legal right and all governmental licenses, authorizations,
consents and approvals to own (or hold under lease) and operate its
property or assets and conduct the business in which it is currently
engaged except, with respect only to such legal right and governmental
licenses, authorizations, consents and approvals, where the failure to
possess any such legal right or governmental license, authorization,
consent or approvals could not reasonably be expected to have a Material
Adverse Effect; (c) has the corporate power and authority, legal right
and all governmental licenses, authorizations, consents and approvals to
execute, deliver, and perform its obligations under the Loan Documents
to which it is a party (whether by assumption or otherwise); (d) is duly
qualified to do business as a foreign entity, and licensed and in good
standing, under the laws of each jurisdiction where its ownership, lease
or operation of property or the nature or conduct of its business
requires such qualification or license, except where the failure so to
qualify could not reasonably be expected to have a Material Adverse
Effect; (e) is in compliance, in all material respects, with all
Requirements of Law; and (f) has filed a Certificate of Merger with the
Delaware Secretary of State effecting the Borrower Merger and has
delivered a certified copy of such Certificate of Merger to the
Administrative Agent.
(b) Authorization; No Contravention. The execution, delivery
and performance by Finance of this Agreement and performance by Finance
of its obligations
Exhibit K-3
under the Loan Documents to which it is a party (whether by assumption
or otherwise) have been duly authorized by all necessary corporate
action and do not and will not (i) contravene the terms of any Charter
Documents of Finance, (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 Finance is a party (other
than Liens under the Loan Documents assumed and ratified by Finance
pursuant to this Agreement) or any order, injunction, writ or decree of
any Governmental Authority to which Finance is a party or its property
is subject, or (iii) violate any Requirement of Law.
(c) 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 Agreement or
any other Loan Document, except that (i) certain of the Loan Documents
may have to be filed with the FCC after the effective date hereof and
(ii) the prior approval of the FCC may be required for the Banks to
exercise certain of their rights with respect to the Stations.
(d) 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 Agreement shall not result in any default under any Contractual
Obligation of any Credit Party in any respect.
(e) Binding Effect. This Agreement, the Credit Agreement and
each other Loan Document to which Finance is a party (whether by
assumption or otherwise) constitute the legal, valid and binding
obligations of Finance, enforceable against Finance in accordance with
their respective terms, except as 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.
(f) 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
date hereof, both before and after giving effect to the Borrower Merger,
as if such representations and warranties were being made on and as of
the date hereof.
(g) Perfection of Liens. All filings, registrations and
recordings necessary or appropriate to create, preserve, protect and
perfect the security interests granted by the Borrower to the Collateral
Agent and hereby assumed by Finance in respect of the Collateral owned
by Finance have been accomplished and the Liens and security interests
granted to the Collateral Agent pursuant to the Security Documents in
and to such Collateral constitute a perfected security interest therein
superior and prior to the rights of all other Persons therein and
subject to no other Liens (other than Liens permitted by the Credit
Agreement), and will be entitled to all the rights, priorities and
benefits afforded by the Uniform Commercial Code or other relevant law
as enacted in any relevant
Exhibit K-3
jurisdiction to perfected security interests, in each case to the extent
that such Collateral consists of the type of property in which a
security interest may be perfected by filing a financing statement under
the Uniform Commercial Code as enacted in any relevant jurisdiction or
in the United States Patent and Trademark Office or the United States
Copyright Office.
(h) Chief Executive Office; Records. The chief place of
business and chief executive office of Finance and the office where
Finance keeps the originals of all documents evidencing all Accounts,
Contract Rights and Trade Secret Rights (as each such term is defined in
the Security Agreement) of Finance and the only original books of
account and records of Finance relating thereto are, and will continue
to be, kept at such chief executive office located at the address
specified on Schedule A attached hereto. The organizational number of
Finance is as set forth on Schedule A attached hereto. Finance does not
have or operate under, nor has had or operated under, in any
jurisdiction since July 1, 1996, any name except its legal name as set
forth on the signature page hereto or such other names specified on
Schedule A attached hereto, nor has Finance ever been organized under
the laws of any jurisdiction other than the State of Delaware.
(i) Marks. Finance is the true and lawful owner of, or
otherwise has the right to use, the Marks (as such term is defined in
the Security Agreement) listed on Schedule B hereto and said listed
Marks include all the United States federal registrations or
applications registered in the United States Patent and Trademark Office
that Finance now owns. Finance represents and warrants that it owns or
is licensed to use or is not prohibited from using all Marks that it
uses. Finance further warrants that it is aware of no third-party claim
that any aspect of Finance's present or contemplated business operations
infringes or will infringe any Xxxx or trade name. Finance represents
and warrants that it is the beneficial and record owner of all United
States registrations and applications listed on Schedule B hereto and
that said registrations are valid and subsisting, have not been canceled
and that Finance is not aware of any third-party claim that any of said
registrations are invalid or unenforceable or is not aware that there is
any reason that any of said applications will not pass to registration.
(j) Licenses and Assignments. Except as otherwise permitted
by the Credit Agreement and other than the license agreements listed on
Schedule C hereto, Finance agrees not to divest itself of any right
under any Xxxx other than in the ordinary course of business absent
prior written approval of the Collateral Agent.
(k) Trade Secret Rights; Patents; Copyrights. Finance is the
true and lawful owner of all rights in (a) all Trade Secret Rights (as
such term is defined in the Security Agreement), (b) the Patents (as
such term is defined in the Security Agreement) listed on Schedule D
hereto and (c) the Copyrights (as such term is defined in the Security
Agreement) listed on Schedule E hereto. Said Patents constitute all the
United States patents and applications for patents that Finance now owns
or is licensed to use and said Copyrights constitute all the United
States registered copyrights that Finance now owns. Finance represents
and warrants that it owns or is licensed to use all Patents and
Copyrights that it now owns or uses. Finance further warrants that it
has no knowledge of
Exhibit K-3
any third-party claim that any aspect of Finance's present or
contemplated business operations infringes or will infringe any patent
or any copyright or misappropriates any trade secret or proprietary
information.
(l) Stock. All of the Stock (as such term is defined in the
Pledge and Security Agreement) owned by Finance on the date hereof is
described on Schedule F hereto, which Stock consists of the number and
class of Stock and constitutes the percentage ownership of each class of
Stock of the relevant Pledged Corporation (as such term is defined in
the Pledge and Security Agreement) as is described on Schedule F hereto.
(m) Notes. All of the Notes (as such term is defined in the
Pledge and Security Agreement) owned by Finance on the date hereof are
described on Schedule F hereto.
(n) Partnership Interests. All of the Partnership Interests
(as such term is defined in the Pledge and Security Agreement) owned by
Finance on the date hereof are described on Schedule F hereto, which
Partnership Interests consist of the number and class of Partnership
Interests and constitute the percentage ownership of each class of
Partnership Interests of the relevant Pledged Partnership (as such term
is defined in the Pledge and Security Agreement) as is described on
Schedule F hereto.
(o) LLC Interests. All of the LLC Interests (as such term is
defined in the Pledge and Security Agreement) held by Finance on the
date hereof are described on Schedule F hereto, which LLC Interests
consist of the number and class of LLC Interests and constitute the
percentage ownership of each class of LLC Interests of the relevant
Pledged Limited Liability Company (as such term is defined in the Pledge
and Security Agreement) as is described on Schedule F hereto.
5. Further Assurances. Finance agrees to execute and deliver to
Administrative Agent any and all documents requested by Administrative Agent and
reasonably necessary to continue, without interruption, the Liens and security
interests described in the Security Documents hereby assumed and ratified by
Finance, including, without limitation, UCC financing statements and amendments
to reflect the Borrower Merger.
6. APPLICABLE LAW. THIS AGREEMENT 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.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
Exhibit K-3
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly
executed and delivered by its proper and duly authorized officer effective as of
the date first written above.
NEXSTAR FINANCE, INC.
By:
------------------------------------
Name:
Title:
Exhibit K-3
SCHEDULE A
TO
RATIFICATION AND ASSUMPTION AGREEMENT
CHIEF EXECUTIVE OFFICE; ORGANIZATIONAL NUMBER; OTHER NAMES
Exhibit K-3
SCHEDULE B
TO
RATIFICATION AND ASSUMPTION AGREEMENT
A. SCHEDULE OF U.S. TRADEMARK REGISTRATIONS
REGISTERED XXXX REGISTRATION NO. REGISTRATION DATE
------------------- -------------------- ---------------------
B. SCHEDULE OF PENDING APPLICATIONS FOR U.S. TRADEMARK REGISTRATIONS ON THE
BASIS OF USE IN COMMERCE UNDER 17 U.S.C. Section 1051(a)
XXXX SERIAL NO. FILING DATE
------------------- -------------------- ---------------------
C. SCHEDULE OF PENDING APPLICATIONS FOR U.S. TRADEMARK REGISTRATIONS ON THE
BASIS OF INTENT TO USE THE XXXX IN COMMERCE UNDER 17 U.S.C. Section
1051(b)
XXXX SERIAL NO. FILING DATE
------------------- -------------------- ---------------------
Exhibit K-3
SCHEDULE C
TO
RATIFICATION AND ASSUMPTION AGREEMENT
LICENSE AGREEMENTS AND ASSIGNMENTS
Exhibit K-3
SCHEDULE D
TO
RATIFICATION AND ASSUMPTION AGREEMENT
PATENTS AND APPLICATIONS
Patent Number Date Issued Title
------------------- -------------------- ---------------------
Exhibit K-3
SCHEDULE E
TO
RATIFICATION AND ASSUMPTION AGREEMENT
COPYRIGHTS AND APPLICATIONS
Exhibit K-3
SCHEDULE F
TO
RATIFICATION AND ASSUMPTION AGREEMENT
DESCRIPTION OF PLEDGED COLLATERAL
I. Pledged Stock
Class Stock Percentage Number
Stock of Certificate of Of Par
Issuer Stock No(s). Ownership Shares Value
------------- --------- --------------- ----------- ---------- ---------
II. Notes
Maker Principal Amount
-------------------------------- ----------------------------
III. Partnership Interests
Class of Partnership Interest
Pledged Partnership Percentage of Ownership (if applicable)
---------------------------- -------------------------- ------------------------------
---------------------------- -------------------------- ------------------------------
IV. LLC Interests
Pledged Limited Liability
Company Percentage of Ownership Class of LLC Interest
----------------------------- ---------------------- ----------------------
Exhibit K-3
EXHIBIT L
FORM OF REVOLVING NOTE
__________________________
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to
pay to _____________________ or registered assigns (the "Bank"), in accordance
with the provisions of the Agreement (as hereinafter defined), the principal
amount of each Revolving Loan from time to time made by the Bank to the Borrower
under that certain Second Amended and Restated Credit Agreement, dated as of
February 13, 2003 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among the Borrower, the Banks
from time to time party thereto, and Bank of America, N.A., as Administrative
Agent and Issuing Bank.
The Borrower promises to pay interest on the unpaid principal amount of
each Revolving Loan from the date of such Revolving Loan until such principal
amount is paid in full, at such interest rates and at such times as provided in
the Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Bank in Dollars in immediately
available funds at the Administrative Agent's Office. If any amount is not paid
in full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in
the Agreement.
This Revolving Loan note is one of the notes referred to in the
Agreement, is entitled to the benefits thereof and may be prepaid in whole or in
part subject to the terms and conditions provided therein. This Revolving Loan
note is also entitled to the benefits of the Guaranty Agreements. Upon the
occurrence and continuation of one or more of the Events of Default specified in
the Agreement, all amounts then remaining unpaid on this Revolving Loan note
shall become, or may be declared to be, immediately due and payable all as
provided in the Agreement. Revolving Loans made by the Bank shall be evidenced
by one or more loan accounts or records maintained by the Bank in the ordinary
course of business. The Bank may also attach schedules to this Revolving Loan
note and endorse thereon the date, amount and maturity of its Revolving Loans
and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this note.
Exhibit L
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
NEXSTAR FINANCE, L.L.C.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Exhibit L
REVOLVING LOANS AND PAYMENTS WITH RESPECT THERETO
DATE TYPE OF AMOUNT OF END OF AMOUNT OF OUTSTANDING NOTATION
LOAN MADE LOAN MADE INTEREST PRINCIPAL OR PRINCIPAL MADE BY
PERIOD INTEREST BALANCE
PAID THIS THIS DATE
DATE
-------------------------------------------------------------------------------------------------------------
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Exhibit L
EXHIBIT M
FORM OF SOLVENCY CERTIFICATE
February 13, 2003
To each of the Banks party to the
Credit Agreement referred to below and
Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Second Amended and Restated Credit
Agreement, dated as of even date herewith (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Nexstar Finance, L.L.C., Nexstar Broadcasting Group, L.L.C. (the "Ultimate
Parent"), certain Subsidiaries of the Ultimate Parent from time to time parties
thereto, the several financial institutions from time to time parties thereto
(the "Banks"), Bank of America, N.A., as Administrative Agent, and Bear Xxxxxxx
Corporate Lending, Inc., as Syndication Agent. Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. Pursuant to Section 5.01(h) of the Credit Agreement, the undersigned,
acting solely in his or her capacity as Chief Financial Officer of the Ultimate
Parent and its Subsidiaries, and not in his or her individual capacity, hereby
certifies on behalf of the Ultimate Parent and its Subsidiaries as follows:
1. The undersigned has reviewed the projected financial statements
of the Ultimate Parent and its Subsidiaries, dated as of December 31, 2002 (the
"Projected Financial Statements"). The Projected Financial Statements show for
the twelve months ending December 31, 2003 the total utilized Aggregate
Commitments (assuming no changes in the Credit Agreement during such period) as
projected at the time such Projected Financial Statements were prepared. The
Projected Financial Statements have been prepared by management of the Ultimate
Parent and its Subsidiaries on the basis of assumptions, set forth therein, that
such management believes are reasonable in light of the historical financial
performance of the Ultimate Parent and its Subsidiaries and the Stations and of
current and reasonably foreseeable business conditions. Nothing has come to the
undersigned's attention that would cause the undersigned to believe that there
have been changes in facts that underlie such assumptions, which changes, when
taken as a whole, would be material and adverse as such facts relate to the
Projected Financial Statements taken as a whole. The undersigned has no reason
to believe that the assumptions on which the Projected Financial Statements are
based (when taken together) are not reasonable, although any assumption and any
forecast by necessity involves uncertainty and approximation and no
representation is made that any forecast reflected in the Projected Financial
Statements will be attained.
Exhibit M
2. For purposes of delivering this certificate, the undersigned
has:
(a) reviewed the appropriate books and records of the
Ultimate Parent and its Subsidiaries;
(b) consulted with counsel of the Ultimate Parent and its
Subsidiaries concerning pending and threatened litigation and has
included as liabilities his or her best judgment as to the maximum
realistic exposure of the Ultimate Parent and its Subsidiaries to
contingent liabilities arising from such litigation that would not be
included in reserves otherwise reflected in the Ultimate Parent's
consolidated balance sheet;
(c) consulted with other officers of the Ultimate Parent and
its Subsidiaries responsible for financial and accounting functions
concerning contingent liabilities other than those related to
litigation; and
(d) made such other investigations and inquiries as the
undersigned has deemed appropriate, taking into account the nature of
the particular business or businesses conducted or to be conducted, and
based on the needs and anticipated needs for capital of the businesses
conducted or anticipated to be conducted of the Ultimate Parent and its
Subsidiaries.
3. Based upon the foregoing (including the Projected Financial
Statements), the undersigned has concluded and hereby certifies on behalf of the
Ultimate Parent and its Subsidiaries that the each of following is true as of
the date hereof, both before and after giving effect to the transactions
contemplated by the Credit Agreement:
(a) the Fair Value (as defined below) of the assets of each
such Person will exceed the liabilities of such Person, contingent or
otherwise;
(b) the Fair Value of the assets of such Person will be
greater than the amount that will be required to pay the liability of
such Person on its Debts as such Debts become absolute and matured;
(c) such Person will not have unreasonably small capital
with which to conduct its business; and
(d) such Person will be able to pay its Debts (as defined
below) as they mature.
4. For purposes of this certificate, the terms below have been
agreed upon by you to have the following definitions:
(a) "Fair Value":
with respect to any Person, the amount at which the assets, both
tangible and intangible in their entirety, on a going-concern basis, of
such Person would change hands
between a willing buyer and a willing seller, within a commercially
reasonable period of time, each having reasonable knowledge of the
relevant facts, with neither being under any compulsion to act.
(b) "will not have unreasonably small capital":
that, as of the date hereof, after giving effect to all
Indebtedness and other obligations to be incurred by the Ultimate Parent
and its Subsidiaries on the date hereof, (i) the Fair Value of the
assets of such Person exceeds the liabilities of such Person, (ii) the
current assets of such Person exceed the current liabilities of such
Person, including contingent liabilities that would be characterized as
current liabilities in accordance with GAAP, and (iii) for the period
from the Effective Date through the Maturity Date, such Person will be
able to pay its reasonably anticipated liabilities, including reasonably
anticipated contingent liabilities, as they mature, and will have
adequate capital to meet its reasonably anticipated capital needs during
such period to carry out its businesses as now conducted and as
presently planned to be conducted.
(c) "Debts":
with respect to a Person, such Person's liabilities on the
following, whether or not such rights are reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured: (i) any
rights to payment; and (ii) any rights to equitable remedies for breach
of performance if the same gives rise to any rights to payment. For the
purpose of the foregoing definition, unliquidated, contingent, disputed
and unmatured claims shall be valued at the amount that can be
reasonably expected to be actual and matured.
5. To the best of the undersigned's knowledge, no guarantor
guaranteeing the Obligations of any Credit Party under the Loan Documents is
entering into the arrangements contemplated by the Credit Agreement or the
Guaranty to which it is a party or intends to make any transfer or incur any
obligations thereunder with actual intent to hinder, delay or defraud either
present or future creditors.
6. To the best of the undersigned's knowledge, no guarantor
guaranteeing the Obligations of any Credit Party under the Loan Documents
intends to incur, or believes or reasonably should believe that such Person will
incur, debts beyond such Person's ability to pay such debts as they become due.
The Administrative Agent, by acceptance of this Certificate,
acknowledges, on behalf of each of the Banks, that the Ultimate Parent and its
Subsidiaries have caused this Certificate to be delivered solely to satisfy the
requirements of Section 5.01(h) of the Credit Agreement and that no personal
liability will attach to the undersigned as a result of any statement contained
herein.
[Remainder of page intentionally left blank; signature page follows]
IN WITNESS WHEREOF, the undersigned have caused this Certificate to be
executed as of the date first above.
NEXSTAR FINANCE, L.L.C.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
NEXSTAR BROADCASTING GROUP, L.L.C.
NEXSTAR BROADCASTING OF NORTHEASTERN
PENNSYLVANIA, INC. (F/K/A NEXSTAR
BROADCASTING OF NORTHEASTERN
PENNSYLVANIA LP, INC.)
NEXSTAR BROADCASTING OF JOPLIN, INC.
(F/K/A NEXSTAR BROADCASTING OF XXXXXX
XX, INC.)
NEXSTAR BROADCASTING OF ERIE, INC.
(F/K/A NEXSTAR BROADCASTING OF ERIE
LP, INC.)
KBTV BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF BEAUMONT/PORT XXXXXX,
INC.)
KFDX BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF WICHITA FALLS, INC.)
NEXSTAR BROADCASTING OF ROCHESTER, INC.
KTAB BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF ABILENE, INC.)
ERC HOLDINGS, INC.
NEXSTAR MIDWEST HOLDINGS, INC.
NEXSTAR BROADCASTING OF CHAMPAIGN, INC.
NEXSTAR BROADCASTING OF PEORIA, INC.
KMID BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF MIDLAND-ODESSA, INC.)
KTAL BROADCASTING INC. (F/K/A NEXSTAR
BROADCASTING OF LOUISIANA, INC.)
NEXSTAR FINANCE HOLDINGS II, L.L.C.
(F/K/A NEXSTAR FINANCE HOLDINGS,
L.L.C.)
NEXSTAR FINANCE HOLDINGS, L.L.C. (F/K/A
NBG, L.L.C.)
NEXSTAR FINANCE HOLDINGS, INC.
NEXSTAR ALABAMA HOLDINGS, INC.
NEXSTAR ARKANSAS HOLDINGS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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 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.
NEXSTAR MANAGEMENT, INC. (F/K/A NEXSTAR
BROADCASTING GROUP, INC.)
NEXSTAR ALABAMA ACQUISITION, INC.
NEXSTAR ARKANSAS ACQUISITION, INC.
By:
---------------------------------
Title:
---------------------------------
of each of the above-named entities
EXHIBIT N
FORM OF TERM B LOAN NOTE
_____________________
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to
pay to _____________________ or registered assigns (the "Bank"), in accordance
with the provisions of the Agreement (as hereinafter defined), the principal
amount of each Term B Loan from time to time made by the Bank to the Borrower
under that certain Second Amended and Restated Credit Agreement, dated as of
February 13, 2003 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among the Borrower, the Banks
from time to time party thereto, and Bank of America, N.A., as Administrative
Agent and Issuing Bank.
The Borrower promises to pay interest on the unpaid principal amount of
each Term B Loan from the date of such Term B Loan until such principal amount
is paid in full, at such interest rates and at such times as provided in the
Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Bank in Dollars in immediately
available funds at the Administrative Agent's Office. If any amount is not paid
in full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in
the Agreement.
This Term B Loan note is one of the notes referred to in the Agreement,
is entitled to the benefits thereof and may be prepaid in whole or in part
subject to the terms and conditions provided therein. This Term B Loan note is
also entitled to the benefits of the Guaranty Agreements. Upon the occurrence
and continuation of one or more of the Events of Default specified in the
Agreement, all amounts then remaining unpaid on this Term B Loan note shall
become, or may be declared to be, immediately due and payable all as provided in
the Agreement. Term B Loans made by the Bank shall be evidenced by one or more
loan accounts or records maintained by the Bank in the ordinary course of
business. The Bank may also attach schedules to this Term B Loan note and
endorse thereon the date, amount and maturity of its Term B Loans and payments
with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this note.
Exhibit N
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
NEXSTAR FINANCE, L.L.C.
By:
----------------------------------
Name:
---------------------------------
Title:
---------------------------------
TERM B LOANS AND PAYMENTS WITH RESPECT THERETO
DATE TYPE OF AMOUNT OF END OF AMOUNT OF OUTSTANDING NOTATION
LOAN MADE LOAN MADE INTEREST PRINCIPAL OR PRINCIPAL MADE BY
PERIOD INTEREST BALANCE
PAID THIS THIS DATE
DATE
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Exhibit N
