Exhibit 10.5
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SECOND AMENDMENT TO CREDIT AGREEMENT, LIMITED CONSENT
AND LIMITED WAIVER
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, LIMITED CONSENT AND LIMITED
WAIVER (this "Amendment"), dated as of June 5, 2002, is among NEXSTAR FINANCE,
L.L.C., a Delaware limited liability company (the "Borrower"), NEXSTAR
BROADCASTING GROUP, L.L.C., a Delaware limited liability company (the "Ultimate
Parent"), the other Parent Guarantors (as such term is defined in the
hereinafter described Credit Agreement) parties to this Amendment, the several
Banks (as such term is defined in the hereinafter described Credit Agreement)
parties to this Amendment, and BANK OF AMERICA, N.A., as Administrative Agent
for the Banks (in such capacity, the "Administrative Agent").
R E C I T A L S:
A. The Borrower, the Ultimate Parent, the other Parent Guarantors, the
Administrative Agent, Barclays Bank PLC, as Syndication Agent, First Union
National Bank, as Documentation Agent, and the several Banks parties thereto
entered into that certain Amended and Restated Credit Agreement dated as of June
14, 2001 (as amended by that certain First Amendment and Limited Consent dated
as of November 14, 2001, 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 the Borrower have advised the Administrative
Agent that, in connection with the proposed sale (the "Initial Public Offering")
of Class A common stock of Nexstar Broadcasting Group, Inc., a Delaware
corporation formerly known as Nexstar Equity Corp. ("Group"), in a public
offering registered under the Securities Act of 1933, as amended, they wish to
effect the following transactions (collectively, the "Proposed Transactions"):
(i) the redemption by the Ultimate Parent of the outstanding
Series AA Preferred Interests and Series BB Preferred Interests of the
Ultimate Parent (the "Existing Parent Preferred Equity"), which
redemption (the "Preferred Redemption") will be effected on the date
of, but prior to, the Mergers (as defined below) and the Initial Public
Offering by the Ultimate Parent distributing to the holders of the
Existing Parent Preferred Equity (a) promissory notes of Nexstar
Finance Holdings II, L.L.C., a Delaware limited liability company
("Nexstar Finance Holdings II"), presently held by the Ultimate Parent
(the "Holdings II Notes"), and (b) cash (the "Cash Redemption Payment")
in an amount equal to the excess of the amount of the aggregate
redemption price payable to the holders of the Existing Parent
Preferred Equity over the aggregate unpaid principal amount of, and
unpaid accrued interest on, the Holdings II Notes;
(ii) the distribution by the Borrower to Nexstar Finance
Holdings, L.L.C., a Delaware limited liability company ("Nexstar
Finance Holdings LLC"), of cash in an amount equal to the amount of the
Cash Redemption Payment, followed by a distribution by Nexstar Finance
Holdings LLC to Nexstar Finance Holdings II in the same amount,
followed by a distribution by Nexstar Finance Holdings II to Nexstar
Broadcasting of Rochester, Inc., a Delaware corporation ("Nexstar
Rochester") in the same amount and a
distribution by Nexstar Rochester to the Ultimate Parent in the same
amount, each to be effected on the date of the Initial Public Offering
and prior to the Preferred Redemption (such distributions and loan
being referred to as the "Cash Redemption Funding");
(iii) the merger (prior to the Initial Public Offering but
following the Preferred Redemption) of the Ultimate Parent and the
other Parent Guarantors (other than Nexstar Finance Holdings LLC and
Nexstar Finance Holdings, Inc.) with and into Group, with Group being
the surviving Person of such mergers (the "Parent Mergers"), pursuant
to which Parent Mergers, inter alia, the holders of the remaining
membership interests of the Ultimate Parent will be issued common stock
of Group in lieu of such interests;
(iv) the merger of Nexstar Finance Holdings LLC with and into
Nexstar Finance Holdings, Inc., a Delaware corporation ("Nexstar
Finance Holdings"), with Nexstar Finance Holdings being the surviving
Person of such merger (the "Holdco Merger");
(v) the merger of the Borrower with and into Nexstar Finance,
Inc., a Delaware corporation ("Nexstar Finance"), with Nexstar Finance
being the surviving Person of such merger (the "Borrower Merger" and,
together with the Parent Mergers and the Holdco Merger, collectively,
the "Mergers");
(vi) the repayment by Group (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 from a portion of the Net Issuance Proceeds of the
Initial Public Offering (the "Holdings II Notes Repayment");
(vii) a loan by Nexstar Finance to one or more of the
Bastet/Mission Borrowers of not more than $20,000,000 of the Net
Issuance Proceeds of the Initial Public Offering contributed to Nexstar
Finance as common equity (the "Initial Nexstar-Bastet/Mission Loan"),
100% of the proceeds of which Initial Nexstar-Bastet/Mission Loan will
be used, immediately upon the receipt thereof by such Bastet/Mission
Borrower(s), to repay outstanding Bastet/Mission Loans, and, from time
to time after the Initial Nexstar-Bastet/Mission Loan, other loans by
Nexstar Finance or other Nexstar Entities to one or more of the
Bastet/Mission Borrowers (together with the Initial
Nexstar-Bastet/Mission Loans, collectively, the "Nexstar-Bastet/Mission
Loans"), the aggregate outstanding principal amount of which
Nexstar-Bastet/Mission Loans (inclusive of the outstanding principal
amount of the Initial Nexstar-Bastet/Mission Loan) shall not exceed
$30,000,000 at any time; and
(viii) a loan by Group of not more than $3,000,000 of the Net
Issuance Proceeds of the Initial Public Offering to Sook (the "Sook
Loan"), 100% of the proceeds of which Sook Loan will be used,
immediately upon the receipt thereof by Sook, to repay outstanding
Management Loans.
C. The Ultimate Parent and the Borrower have further advised the
Administrative Agent that the following parties effected the following
transactions, in each case in violation of clause (ii) of Section 8.14 of the
Credit Agreement and Section 3.7 of the Security Agreement to which each is a
party (collectively, the "Existing Defaults");
(i) Nexstar Broadcasting of Beaumont/Port Xxxxxx, Inc. amended
its certificate of incorporation to change its name to KBTV
Broadcasting Inc.;
(ii) Nexstar Broadcasting of Wichita Falls, Inc. amended its
certificate of incorporation to change its name to KFDX Broadcasting
Inc.;
(iii) Nexstar Broadcasting of Abilene, Inc. amended its
certificate of incorporation to change its name to KTAB Broadcasting,
Inc.;
(iv) Nexstar Broadcasting of Midland-Odessa, Inc. amended its
certificate of incorporation to change its name to KMID Broadcasting
Inc.;
(v) Nexstar Broadcasting of Louisiana, Inc. amended its
certificate of incorporation to change its name to KTAL Broadcasting
Inc.; and
(vi) Nexstar Broadcasting Group, Inc. amended its certificate
of incorporation to change its name to Nexstar Management, Inc.
D. The Ultimate Parent and the Borrower have requested that (i) the
Banks consent to the consummation of the Proposed Transactions, (ii) the Banks
waive the Existing Defaults, (iii) the Term B Banks amend the definition of
Applicable Margin in certain respects applicable to the Term B Loans, and (iv)
the Banks agree to certain amendments to the Credit Agreement in connection with
the Mergers and the Initial Public Offering, in each case as more fully set
forth herein.
E. The several Banks parties to this Amendment (which Banks constitute
the Majority Banks (and, further, must include all of the Term B Banks, in order
for the amendment set forth in Section 1(a)(i) below to become effective) as
required under the Credit Agreement to grant the consents and waivers and effect
the amendments intended hereby) are willing to grant the above-described
consents and waivers and agree to the above-described amendments, subject in
each case to the performance and observance in full of each of the covenants,
terms and conditions, and in reliance upon all of the representations and
warranties of the Borrower and the Parent Guarantors, set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants,
terms and conditions, and in reliance upon the representations and warranties,
in each case contained herein, the parties hereto agree hereby as follows:
Section 1. AMENDMENTS TO CREDIT AGREEMENT. Subject to the covenants,
terms and conditions set forth herein and in reliance upon the representations
and warranties of the Borrower and the Parent Guarantors herein contained, the
parties to this Amendment hereby agree to amend the Credit Agreement as set
forth below in this Section 1.
(a) Effective as of the Amendment Effective Date (as defined in Section
6(e) below), the Credit Agreement is amended as follows:
(i) the definition of "Applicable Margin" in Section 1.01 of
the Credit Agreement is amended by deleting clause (iii) thereof in its
entirety and the inserting the following in lieu thereof:
"(iii) with respect to Term B Loans which are
Eurodollar Loans, 3.250%,"
(ii) all references in the Credit Agreement to "the fourth
anniversary of the effective date of the Existing Credit Agreement" are
amended to refer to "January 12, 2005";
(iii) Sections 2.05(d) and 2.08(a)(i) are amended by deleting
the date "March 31, 2002" in each place where it appears therein and
inserting "June 30, 2003" in lieu thereof; and
(iv) the reference to "Nexstar Broadcasting Group, Inc." in
Section 8.06(c) is amended to read "Nexstar Management Inc. (f/k/a
Nexstar Broadcasting Group, Inc.)".
(b) Effective as of the effective date of the Mergers, but subject in
all cases to the satisfaction of the conditions relating to the Mergers set
forth in Section 2(a) below, the Credit Agreement is amended as follows:
(i) the reference to "Nexstar Broadcasting Group, L.L.C., a
limited liability company organized under the laws of the State of
Delaware" set forth in the preamble to the Credit Agreement is amended
to read, "Nexstar Broadcasting Group, Inc., a corporation organized
under the laws of the State of Delaware";
(ii) the reference to "Nexstar Finance, L.L.C., a limited
liability company organized under the laws of the State of Delaware"
set forth in the preamble to the Credit Agreement is amended to read,
"Nexstar Finance, Inc., a corporation organized under the laws of the
State of Delaware";
(iii) the definitions of "Bridge Loan Agreement", "Exchange
Equity", "Existing Holdings Preferred Equity", "Holding Company", "New
Holding Company", "Nexstar Equity", "Nexstar Equity Investor Rights
Agreement", "Nexstar Equity Reimbursement Agreement", "Nexstar Equity
Unit Agreement", "Nexstar Finance Holdings Bridge" and "Permitted
Holdings Preferred Equity" in Section 1.01 are deleted in their
entirety;
(iv) the following definitions of "Initial Public Offering"
and "Nexstar Stockholders Agreement" are inserted in Section 1.01 in
the appropriate alphabetical position therein:
"Initial Public Offering" means the sale by Nexstar
Broadcasting Group, Inc., a Delaware corporation formerly
known as Nexstar Equity Corp. of its Class A common stock in a
public offering registered under the Securities Act of 1933,
as described in that certain Second Amendment to Credit
Agreement, Limited Consent and Limited Waiver dated as of June
__, 2002, among the Ultimate Parent, Nexstar Finance, the
other Subsidiaries of the Ultimate Parent parties thereto, the
Banks parties thereto, and the Administrative Agent.
"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,
as in effect on the date thereof.
(v) the definitions of "Change of Control", "Consolidated
Interest Coverage Ratio", "Credit Parties", "Nexstar Finance Holdings",
"Parent Guaranty Agreements", "Parent Subordinated Convertible
Promissory Note", "Permitted Affiliate Transactions", "Permitted
Borrower Preferred Equity", "Permitted Parent Preferred Equity",
"Permitted Permanent Holdings Preferred Equity" and "Required Junior
Capital" in Section 1.01 are amended to read in full as follows:
"Change of Control" means any of the following: (i)
either (x) the aggregate remaining cost basis of XXXX X.X.
II's and XXXX X.X. III's combined equity interests in the
Ultimate Parent shall be less than $50,000,000 or (y) XXXX
X.X. II and XXXX X.X. III, taken together, shall cease to be
able to elect a majority of the board of directors or similar
governing persons of the Ultimate Parent; (ii) XXXX X.X. II
and XXXX X.X. III, 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 the Permitted Parent
Preferred Equity); (iii) XXXX X.X. II or XXXX X.X. III, taken
together, shall neither directly nor indirectly control
management of the Ultimate Parent whether by ownership of
voting securities, contract or otherwise; (iv) ABRY Capital
shall cease to be the sole general partner of XXXX X.X. II or
ABRY Equity shall cease to be the sole general partner of XXXX
X.X. III; (v) ABRY Holdings shall cease to be the sole general
partner of ABRY Capital or ABRY Holdings III shall cease to be
the sole general partner of ABRY Equity; (vi) ABRY Holdings
Co. shall cease to be the sole member of ABRY Holdings or ABRY
Holdings III Co. shall cease to be the sole member of ABRY
Holdings III; (vii) the Ultimate Parent shall cease to own,
directly or indirectly, 100% on a fully diluted basis of the
Capital Stock of Nexstar Finance Holdings other than Permitted
Permanent Holdings Preferred Equity; or (viii) Nexstar Finance
Holdings shall cease to own 100% on a fully diluted basis of
the Capital Stock of the Borrower other than Permitted
Borrower Preferred Equity.
"Consolidated Interest Coverage Ratio" means, on any
date, the ratio of (i) Consolidated Operating Cash Flow of the
Borrower and its Subsidiaries for the applicable Measurement
Period relating to such date to (ii) the Consolidated Cash
Interest Expense of the Borrower and its Subsidiaries for such
Measurement Period relating to such date, plus Consolidated
Cash Interest Expense of Nexstar Finance Holdings with respect
to Permitted Holdings Unsecured Indebtedness and Permitted
Permanent Holdings Preferred Equity for such Measurement
Period relating to such date, plus Consolidated Cash Interest
Expense of the Ultimate Parent with respect to Permitted
Parent Preferred Equity (other than the Permitted Parent
Preferred Equity redeemed immediately prior to the Initial
Public Offering) for such Measurement Period relating to such
date.
"Credit Parties" means the collective reference to
the Parent Guarantors, the Borrower, the Subsidiary
Guarantors, the Bastet/Mission Entities and any other Person
hereafter executing and delivering a Security Document or a
Guarantor 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.
"Nexstar Finance Holdings" means Nexstar Finance
Holdings, Inc., a Delaware corporation.
"Parent Guaranty Agreements" means the collective
reference to (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 Subordinated Convertible Promissory Note"
means a promissory note of Nexstar Finance Holdings, payable
to the order of XXXX X.X. II, XXXX X.X. III and/or Sook (or
other Persons exercising preemptive rights in connection with
an issuance of Capital Stock to one or more of them),
substantially in the form of Exhibit H.
"Permitted Affiliate Transactions" means (i)
Restricted Payments permitted by Section 8.10; (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 in any Fiscal
Year; (iv) payments of out-of-pocket expenses and transaction
fees payable pursuant to the Management Agreement and incurred
in connection with any purchase or acquisition of any Person
or Station, or the entering into of any Local Marketing
Agreement, Joint Sales Agreement and/or Shared Services
Agreement, pursuant to Section 8.04(b); (v) payments of
management fees made pursuant to the Management Agreement, so
long as all management fee payments made pursuant to the
Management Agreement shall be in an amount not to exceed
$75,000 per Station per Fiscal Year and $300,000 in the
aggregate per Fiscal Year, in each case as the amount of such
management fee amount may be increased annually based on the
United States Department of Labor's Consumer's Price Index,
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(m) and (o); (vii) the Management
Loan Guaranty; and (viii) the transactions contemplated by the
Nexstar Stockholders Agreement.
"Permitted Borrower Preferred Equity" means
non-voting, preferred stock issued by the Borrower which (i)
has no scheduled payments of cash Dividends due or payable
thereon and no scheduled redemption or repurchase obligations
with respect thereto until at least 180 days after the Stated
Maturity Date of the latest to mature of the Term Loans, (ii)
is not convertible, exchangeable or exercisable for any
Indebtedness or any other Capital Stock (other than Capital
Stock of the Ultimate Parent), (iii) is not redeemable at the
option of the holder thereof until at least 180 days after the
Stated Maturity Date of the latest to mature of the Term
Loans, other than with respect to customary redemption rights
with respect to (x) a change of control of the Borrower 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 Borrower 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 Parent Preferred Equity" means non-voting,
preferred stock issued by the Ultimate Parent which (i) have
no scheduled payments of cash dividends due or payable thereon
until January 12, 2005, 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 Term 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 January 12, 2005, unsecured Indebtedness
of the Ultimate Parent 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 Term 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 Permanent Holdings Preferred Equity" means
non-voting, preferred stock issued by Nexstar Finance Holdings
which (i) has no scheduled payments of cash dividends due or
payable thereon until after January 12, 2005, 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 Term 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 January 12, 2005,
unsecured Indebtedness of Nexstar Finance Holdings 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
Term Loans, other than with respect to customary redemption
rights with respect to (x) a change of control 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 Permanent Holdings 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.
"Required Junior Capital" means (i) Capital Stock
(other than Disqualified Stock) sold or issued after the
Effective Date by the Ultimate Parent, Permitted Borrower
Preferred Equity, Permitted Holdings Unsecured Indebtedness,
Permitted Permanent Holdings Preferred Equity, and/or
Permitted Parent Preferred Equity in each case to the extent
that the Net Debt Proceeds or Net Issuance Proceeds, as
applicable, from the sale or issuance thereof have been
contributed, directly or indirectly, as cash equity to the
Borrower (to the extent required by this Agreement) and/or
loans to the Borrower as provided in Section 8.05(m) and (ii)
loans to the Borrower permitted under Section 8.05(m).
(vi) Section 2.07(e) is deleted in its entirety and the
following is inserted in lieu thereof:
"(e) At any time that the Consolidated Senior
Leverage Ratio is equal to or greater than 3.00 to 1.00 prior
to the sale or issuance of any Capital Stock of, or cash
capital contribution to, any Nexstar Entity, then on the
Business Day after the date of the receipt by any Nexstar
Entity of Net Issuance Proceeds from any such sale or issuance
of Capital Stock (including Indebtedness described in Section
8.05(m)) or cash capital contribution (other than (A) proceeds
from the sale or issuance of Capital Stock of, or cash
contributions to, the Ultimate Parent from XXXX X.X. II, XXXX
X.X. III 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, and (C) cash capital contributions and/or
intercompany loans made by any Nexstar Entity to a Subsidiary
with any of the proceeds described in the foregoing clause (A)
or (B), upon such Nexstar Entity's receipt, directly or
indirectly through other Nexstar Entities, of such proceeds),
the Borrower shall prepay outstanding principal of the Term
Loans and the Revolving Loans, on a pro rata basis among such
Loans, in an amount equal to the lesser of (x) 50% of such Net
Issuance Proceeds and (y) the amount of Net Issuance Proceeds
required to repay outstanding principal of the Term Loans and
Revolving Loans so that the Consolidated Senior Leverage Ratio
determined on a Pro Forma Basis after giving effect to any
such equity issuance or sale or capital contribution and any
such prepayment, shall not be greater than 3.00 to 1.00."
(vii) Section 2.07(f) is deleted in its entirety and the
following is inserted in lieu thereof:
"(f) If on any date any Nexstar Entity shall incur or
issue any Indebtedness described in Section 8.05(k) or Section
8.05(l), 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 Loans and the Revolving
Loans, on a pro rata basis among such Loans."
(viii) Section 2.07(g) is deleted in its entirety and the
following is inserted in lieu thereof:
"(g) If on any date the Borrower incurs or issues
Permitted Borrower Subordinated Indebtedness, then on each
such date of incurrence an amount equal to the amount of the
Net Debt Proceeds received with respect to such Permitted
Borrower Subordinated Indebtedness shall be applied to prepay
outstanding principal amount of the Revolving Loans. In
addition, notwithstanding anything to the contrary contained
in this Section 2.07, if any Default or Event of Default
exists on any date when Nexstar Finance Holdings and/or the
Borrower incurs any Indebtedness permitted under Section
8.05(m), then on each such date of incurrence an amount equal
to the amount of the Net Debt Proceeds therefrom (without
duplication) shall be applied to prepay outstanding principal
of the Revolving Loans."
(ix) Section 6.17 is deleted in its entirety and the following
is inserted in lieu thereof:
"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
in any Guaranty Supplement and those Subsidiaries permitted to
be formed or acquired in compliance with the terms hereof. The
Ultimate Parent directly owns 100% of the Capital Stock of
Nexstar Finance Holdings other than, to the extent issued
after the date hereof, Permitted Permanent Holdings Preferred
Equity and indirectly owns 100% of the Capital Stock of all of
its other Subsidiaries other than, to the extent issued after
the date hereof, Permitted Borrower Preferred Equity."
(x) Schedule 6.17 is deleted in its entirety and the attached
Schedule 6.17 is inserted in lieu thereof;
(xi) Section 7.07 is deleted in its entirety and the following
is inserted in lieu thereof:
"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. The Ultimate
Parent will continue to own and hold directly all of the
outstanding shares of Capital Stock of Nexstar Finance
Holdings other than Permitted Permanent Holdings Preferred
Equity, 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
(other than, to the extent issued after the date hereof,
Permitted Borrower Preferred Equity), in each case as set
forth on Schedule 6.17, except as otherwise permitted pursuant
to Section 8.04."
(xii) Section 7.16(c) is deleted in its entirety and the
following is inserted in lieu thereof:
"(c) If at any time any Parent Guarantor or the
Borrower 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 Guaranty
Supplements, a Joinder to Security Agreement and a Joinder to
Pledge and Security Agreement."
(xiii) clauses (f) and (q) of Section 8.05 are deleted in
their entirety and the following, in each case, is inserted in lieu
thereof:
"[intentionally deleted]"
(xiv) clauses (k) through (m) of Section 8.05 are deleted in
their entirety and the following is inserted in lieu thereof:
"(k) so long as no Default or Event of Default exists
both before and after the incurrence thereof, Nexstar Finance
Holdings may incur Permitted Holdings Unsecured Indebtedness
and/or sell or issue Permitted Permanent Holdings Preferred
Equity, and the Borrower may sell or issue Permitted Borrower
Preferred Equity, provided that concurrently upon receipt
thereof, the Net Debt Proceeds and/or Net Issuance Proceeds,
as applicable, therefrom are applied in accordance with
Section 2.07(f);
(l) so long as no Default or Event of Default exists
both before and after the sale or issuance thereof, the
Ultimate Parent may sell or issue Permitted Parent Preferred
Equity, provided that, concurrently upon receipt thereof, the
Net Issuance Proceeds therefrom are applied in accordance with
Section 2.07(f);
(m) 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 XXXX X.X. II, XXXX X.X.
III 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, the Net Debt
Proceeds from any Initial Loan are used to make a loan in
equal amount to the Borrower pursuant to the terms and
conditions of, 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 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 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 and
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;"
(xv) clause (p) of Section 8.05 is deleted in its entirety and
the following is inserted in lieu thereof:
"(p) 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;"
(xvi) clauses (f), (g), (h) and (n) of Section 8.10 are
deleted in their entirety and the following is inserted, in each case,
in lieu thereof:
"[intentionally deleted]"
(xvii) clause (j) of Section 8.10 is deleted in its entirety
and the following is inserted in lieu thereof:
"(j) so long as no Default or Event of Default exists
both before and after the making thereof, after January 12,
2005, (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
Dividends which become due and payable with respect to
Permitted Permanent Holdings Preferred Equity and (ii) Nexstar
Finance Holdings may pay such cash Dividends if, prior to the
making of such payments of cash Dividends 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 payment of each such
Dividend of the Borrower, giving effect to each such Dividend
of the Borrower and the related payments of cash Dividends to
be made by Nexstar Finance Holdings as though each such
Dividend of the Borrower and the related payments of cash
Dividends 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 Dividends;"
(xviii) clause (k) of Section 8.10 is deleted in its entirety
and the following is inserted in lieu thereof:
"(k) so long as no Default or Event of Default exists
both before and after the making thereof, after January 12,
2005, (i) the Borrower may authorize, declare and pay
Dividends to Nexstar Finance Holdings and Nexstar Finance
Holdings may in turn pay 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 and Nexstar Finance Holdings and the
related payments of cash Dividends on the Parent Preferred
Equity to be made by the Ultimate Parent as though each such
Dividend and the related payments of cash Dividends on the
Parent Preferred Equity 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;"
(xix) clause (c) of Section 8.11 is deleted in its entirety
and the following is inserted in lieu thereof:
"(c) the Credit Parties may make equity contributions
to the capital of their respective Subsidiaries that are
Credit Parties;"
(xx) clause (f) of Section 8.11 is deleted in its entirety and
the following is inserted in lieu thereof:
"(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;"
(xxi) clause (h) of Section 8.11 is deleted in its entirety
and the following is inserted in lieu thereof:
"(h) the Borrower may make intercompany loans and
advances to any Subsidiary of the Borrower which is a Credit
Party and Nexstar Finance Holdings may make loans to the
Borrower as permitted under Section 8.05(m); and"
(xxii) Section 8.13 is deleted in its entirety and the
following is inserted in lieu thereof:
"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 (i) Permitted Parent
Preferred Equity in accordance with Section 8.05(l) and (ii)
other Capital Stock other than Disqualified Stock, in each
case so long as the Net Issuance Proceeds therefrom are
applied as may be required by Section 2.07, (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, and (c) Nexstar Finance
Holdings may sell or issue Permitted Permanent Holdings
Preferred Equity, and/or the Borrower may sell or issue
Permitted Borrower Preferred Equity, in each case as permitted
by Section 8.05(k), so long as the Net Issuance Proceeds
thereof are applied as may be required by Section 2.07."
(c) Effective as of the consummation of the Initial Public Offering,
but subject in all cases to the satisfaction of the conditions set forth in the
proviso to Section 2(b) below and in Section 4 below, the Credit Agreement is
amended as follows:
(i) the following definitions of "Beneficial Owner",
"Continuing Directors", "Nexstar-Bastet/Mission Loan", "Principal",
"Sook Loan" and "Voting Stock" are inserted in Section 1.01 in the
appropriate alphabetical positions therein:
"Beneficial Owner" has the meaning assigned to such
term in Rule 13d-3 and Rule 13d-5 under the Securities
Exchange Act of 1934, as amended.
"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 Nexstar Broadcasting
Group, L.L.C. on January 12, 2001; (ii) was nominated for
election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or
election; or (iii) was nominated by one or more Principals
owning at least 20% of the Voting Stock of the Ultimate Parent
at the time of such nomination.
"Nexstar-Bastet/Mission Loan" means a loan made by a
Nexstar Entity to one or more of the Bastet/Mission Borrowers
in compliance with Section 8.11(j).
"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 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.
"Sook Loan" means a loan made by the Ultimate Parent
to Sook in compliance with Section 8.11(k).
"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.
(ii) the definitions of "Change of Control", and "Maximum
Incremental Amount" in Section 1.01 are amended to read in full as
follows:
"Change of Control" means any of the following: (i)
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; (ii) a majority of the
members of the Board of Directors of the Ultimate Parent shall
cease to be Continuing Directors; (iii) the Principals, taken
together, shall cease to directly or indirectly own and hold
at least (x) 35% on a fully diluted basis of the Voting Stock
of the Ultimate Parent and (y) 35% on a fully diluted basis of
the economic interests in the Ultimate Parent (excluding the
Permitted Parent Preferred Equity); (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
other than Permitted Permanent Holdings Preferred Equity; or
(v) Nexstar Finance Holdings shall cease to own 100% on a
fully diluted basis of the Capital Stock of the Borrower other
than Permitted Borrower Preferred Equity.
"Maximum Incremental Amount" means (i) at all times
on or prior to June 30, 2003, $100,000,000, (ii) at all times
after June 30, 2003, and on or prior to September 30, 2003,
$96,250,000, and (iii) at all times after September 30, 2003,
$92,500,000.
(iii) the definition of "Permitted Affiliate Transactions" in
Section 1.01 is amended by deleting the word "and" at the end of clause
(vii) thereof, deleting the period (".") at the end of clause (viii)
thereof and replacing it with a semicolon (";") and the word "and", and
inserting the following clause (ix) after clause (viii) thereof:
"(ix) the Sook Loan."
(iv) Section 2.01(c) is amended by deleting the date "December
31, 2002" from the second line of clause (i) thereof and inserting,
"December 31, 2003" in lieu thereof;
(v) Section 2.05(d) is deleted in its entirety and the
following is inserted in lieu thereof:
"(d) The Aggregate Combined Revolving Commitment
shall be automatically and permanently reduced on the last day
of each Fiscal Quarter (or, in the case of the final reduction
in Loan Year 6, on the Stated Revolving Credit Maturity Date),
commencing on June 30, 2003 and ending on the Stated Revolving
Credit Maturity Date, based on the annual percentage
reductions for each Loan Year set forth below of (i) the
Aggregate Revolving Commitment as in effect on June 30, 2003,
plus, (ii) the original amount of each Incremental Revolving
Commitment created from time to time, if any, pursuant to this
Agreement prior to the time of the reduction in question.
Notwithstanding anything to the contrary contained in this
Agreement, on the Maturity Date the Aggregate Combined
Revolving Commitment shall automatically reduce to zero.
Loan Year Annual Percentage Reduction
--------- ---------------------------
1 00.0%
2 00.0%
3 15.0%
4 20.0%
5 30.0%
6 35.0%
The amount of each quarterly reduction of (i) the Aggregate
Revolving Commitment as in effect on June 30, 2003, and (ii)
the original amount of each Incremental Revolving Commitment
created from time to time, if any, pursuant to this Agreement
prior to the time of the reduction in question, during any
Loan Year, shall be an amount equal to the applicable annual
percentage reduction set forth above with respect to such
Loan Year, divided by the number of quarterly reductions to
be made during such Loan Year (with the last reduction in
Loan Year 6, to be made on the Stated Revolving Credit
Maturity Date, to be deemed a quarterly reduction for
purposes of this Section 2.05(d)); provided that the amount
of each quarterly reduction during Loan Year 3 with respect
to each Incremental Revolving Commitment created from time to
time on or after June 30, 2003, if any, shall be an amount
equal to the applicable annual percentage reduction set forth
above with respect to such Loan Year, divided by 4. Each
reduction of the Aggregate Revolving Commitment pursuant to
this Section 2.05(d) shall be applied pro rata to each Bank's
Revolving Commitment and each reduction of each Incremental
Revolving Commitment pursuant to this Section 2.05(d) shall
be applied pro rata to each Bank providing such Incremental
Revolving Commitment. All accrued commitment and letter of
credit fees to the effective date of any such reduction of
the Aggregate Combined Revolving Commitment shall be paid on
the effective date of such reduction. "
(vi) Section 2.07(h) is deleted in its entirety and the
following is inserted in lieu thereof:
"(h) [intentionally deleted]"
(vii) Section 2.08(a)(i) is deleted in its entirety and the
following is inserted in lieu thereof:
"(i) The Term A 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 Loan Year 6, on the Stated Term A
Maturity Date), commencing on June 30, 2003, the Borrower
shall repay, and there shall become due and payable, (i) a
principal installment on the Term A Loans in an amount based
on the annual percentage reductions for each Loan Year set
forth below of the Aggregate Outstanding Term A Loan Balance
on June 30, 2003, plus, (ii) a principal installment on each
Incremental Term Loan made from time to time, if any, pursuant
to this Agreement prior to the time of the principal payment
in question in an amount based on the annual percentage
reductions for each Loan Year set forth below of the original
principal amount of such Incremental Term Loan:
Loan Year Annual Percentage Reduction
--------- ---------------------------
1 00.0%
2 00.0%
3 15.0%
4 20.0%
5 30.0%
6 35.0%
The aggregate principal amount of each installment paid during
any Loan Year on (i) Term A Loans, and (ii) each Incremental
Term Loan made pursuant to an Incremental Facility created
from time to time, if any, pursuant to this Agreement, shall
in each case be an amount equal to the applicable annual
percentage reduction set forth above with respect to such Loan
Year, divided by the number of quarterly installments to be
made during such Loan Year (with the last installment in Loan
Year 6, to be made on the Stated Term A Maturity Date, deemed
a quarterly installment for purposes of this Section
2.08(a)(i)); provided that the aggregate principal amount of
each installment paid during Loan Year 3 with respect to each
Incremental Term Loan created from time to time on or after
June 30, 2003, if any, shall be an amount equal to the
applicable annual percentage reduction set forth above with
respect to such Loan Year, divided by 4."
(viii) Section 8.04 is amended by deleting the amount
"$20,000,000" from condition (A) of the proviso to clause (b) thereof
and inserting, the amount "$40,000,000" in lieu thereof; and
(ix) Section 8.11 is amended by deleting the word "and" at the
end of clause (h) thereof, deleting the period (".") at the end of
clause (i) thereof and replacing it with a semicolon (";"), and
inserting the following clauses (j) and (k) after clause (i) thereof:
"(j) the Nexstar Entities may make
Nexstar-Bastet/Mission Loans, provided that (i) the aggregate
principal amount thereof outstanding at any time may not
exceed $30,000,000; (ii) each such loan is evidenced by a
demand promissory note in form and substance reasonably
satisfactory to the Administrative Agent and which promissory
note is delivered to the Collateral Agent by such Nexstar
Entity, together with any necessary endorsements, to be held
as Pledged Collateral; (iii) no such loan will, alone or in
the aggregate with any other such loans, violate any
Requirement of Law applicable to the Nexstar Entities or the
Bastet/Mission Entities (including, without limitation, all
terms and conditions of all FCC Licenses covering the Stations
and all rules, regulations and administrative orders of the
FCC) and, prior to the making of each such loan, the Borrower
shall have delivered to the Administrative Agent a certificate
to such effect executed on the Borrower's behalf by a
Responsible Officer of the Borrower, and (iv) no Default or
Event of Default exists both before and after making such
loan; and
(k) the Ultimate Parent may make the Sook Loan;
provided that (i) the aggregate principal amount of the Sook
Loan does not exceed $3,000,000, (ii) the Sook Loan is
evidenced by a promissory note (which promissory note will
provide that such loan and all accrued interest thereon will
be forgiven upon the earlier of the fifth anniversary of the
date thereof and the termination of Sook's employment with the
Nexstar Entities, unless such employment is terminated under
specified circumstances) in form and substance satisfactory to
the Administrative Agent that is delivered to the Collateral
Agent by the Ultimate Parent, together with any necessary
endorsements, to hold as Pledged Collateral, (iii) the Sook
Loan is made immediately upon the receipt of the Net Issuance
Proceeds of the Initial Public Offering and solely using such
Net Issuance Proceeds, (iv) no Default or Event of Default
exists both before and after making the Sook Loan, (v) 100% of
the proceeds of the Sook Loan are used, immediately upon the
receipt thereof by Sook, to repay in full the outstanding
Management Loan, and (vi) the Management Loan Guaranty is
terminated contemporaneously with such repayment of the
Management Loan and evidence satisfactory to the
Administrative Agent of such termination is furnished to the
Administrative Agent promptly after such termination."
Section 2. LIMITED CONSENTS. Subject to the covenants, terms
and conditions set forth in this Amendment, and in reliance upon the
representations and warranties of the Borrower and the Parent Guarantors herein
contained, the several Banks parties to this Amendment hereby:
(a) (i) consent to the consummation of the Mergers and waive compliance
with the provisions of Section 8.04 and Section 8.06 of the Credit Agreement
which prohibit the Mergers solely to
the extent necessary to permit the consummation of the Mergers and (ii) consent
to the modification of the Charter Documents of the entities being merged in the
Mergers and waive compliance with the provisions of clause (ii) of Section 8.14
of the Credit Agreement solely to the extent necessary to permit such
modifications; provided, that (A) pricing for the Initial Public Offering has
resulted in a price per share that will result in Net Issuance Proceeds to Group
of at least $100,000,000 upon consummation of the Initial Public Offering, (B)
the Mergers are accomplished pursuant to documentation in form and substance
satisfactory to the Administrative Agent and its counsel, (C) contemporaneously
with the Mergers, Group, Nexstar Finance Holdings and Nexstar Finance execute
and deliver to the Administrative Agent Ratification and Assumption Agreements
substantially in the forms of the attached Exhibits X-0, X-0, and A-3,
respectively, and cause to be delivered to the Administrative Agent an opinion
of counsel in form and substance 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 Group, Nexstar Finance Holdings and
Nexstar Finance, respectively, (D) no Default or Event of Default exists both
before and after giving effect to the Mergers, (E) the Parent Merger, the Holdco
Merger and the Borrower Merger are consummated and effective on the same day,
and (F) the Initial Public Offering is consummated on or within 1 Business Day
after the effective date of the Mergers;
(b) consent to the Cash Redemption Funding, the Preferred Redemption
and the Holdings II Notes Repayment and waive compliance with the provisions of
Section 8.03, Section 8.05, Section 8.06, Section 8.10 and Section 8.11 of the
Credit Agreement which prohibit the Cash Redemption Funding, the Preferred
Redemption and the Holdings II Notes Repayment solely to the extent necessary to
permit the Cash Redemption Funding, the Preferred Redemption and the Holdings II
Notes Repayment; provided, that (i) the Initial Public Offering is (x) an
underwritten public offering by Group 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, (y) is sufficient to result in Net
Issuance Proceeds to Group of at least $100,000,000, and (z) is consummated on
or before December 31, 2002, (ii) the Initial Public Offering otherwise complies
with all of the other requirements of Section 8.13(a) of the Credit Agreement
(including, without limitation, the requirements that the Net Issuance Proceeds
of the Initial Public Offering be applied in accordance with Section 2.07(e) to
the extent applicable), (iii) all of the Existing Parent Preferred Equity is
redeemed as described in Recital B(i) of this Amendment and the Holdings II
Notes Repayment is effected contemporaneously with the Initial Public Offering
using solely Net Issuance Proceeds of the Initial Public Offering, (iv) the
Initial Public Offering, the Cash Redemption Funding, the Preferred Redemption
and the Holdings II Notes Repayment all occur pursuant to documentation in form
and substance satisfactory to the Administrative Agent, (v) no Default or Event
of Default exists both before and after giving effect to the Cash Redemption
Funding, the Preferred Redemption and the Holdings II Notes Repayment, (vi) the
Initial Public Offering is consummated immediately after the Mergers are
consummated, and (vii) immediately prior to the Initial Public Offering, the
Administrative Agent shall have received (x) a consolidated balance sheet from
each of Group and its Subsidiaries and Nexstar Finance and its Subsidiaries,
prepared on a Pro Forma Basis, giving effect to the Initial Public Offering and
the other transactions consummated in connection with the Initial Public
Offering, as though the Initial Public Offering and such transactions occurred
as of the first day of the four fiscal quarters most recently ended, and (y) a
Pro Forma Compliance Certificate duly executed on behalf of Group and Nexstar
Finance by a Responsible Officer of Group and Nexstar Finance; and
(c) consent to the execution, delivery and performance by the parties
thereto of the Fourth Amendment and Limited Consent dated as of even date
herewith relative to the Bastet/Mission Credit Agreement (the "Bastet/Mission
Amendment"), and all transactions described therein.
The consents set forth in this Section 2 are limited to the extent specifically
set forth above and no terms, covenants or provisions of the Credit Agreement or
any other Loan Document are intended to be affected hereby except to the extent
specifically waived in connection with the limited consents granted above.
Section 3. LIMITED WAIVERS. Subject to the covenants, terms and
conditions set forth in this Amendment, and in reliance upon the representations
and warranties of the Borrower and the Parent Guarantors herein contained, the
several Banks parties to this Amendment hereby waive the Events of Default
pursuant to clause (ii) of Section 8.14 of the Credit Agreement and Section 3.7
of the Security Agreements caused by the name changes described in Recital C
hereof.
The waivers set forth in this Section 3 are limited to the extent specifically
set forth above and no terms, covenants or provisions of the Credit Agreement or
any other Loan Document are intended to be affected hereby except to the extent
specifically waived above.
Section 4. CONDITIONS PRECEDENT. The parties hereto agree that this
Amendment and the consents, waivers and amendments to the Credit Agreement
contained herein shall not be effective until the satisfaction of each of the
following conditions precedent:
(a) Execution and Delivery of this Amendment. The Administrative Agent
shall have received a copy of this Amendment executed and delivered by each of
the applicable Credit Parties and by Banks constituting Majority Banks and each
of the conditions set forth in Sections 4(b) through 4(d) below shall have been
satisfied; provided that the amendment set forth in Section 1(a)(i) above shall
not become effective until the Administrative Agent shall have received a copy
of this Amendment executed and delivered by each of the applicable Credit
Parties and by Banks constituting Majority Banks but including all Term B Banks
and each of the conditions set forth in Sections 4(b) through 4(d) below shall
have been satisfied.
(b) Representations and Warranties. Each of the representations and
warranties made in this Amendment shall be true and correct on and as of the
Amendment Effective Date as if made on and as of such date, both before and
after giving effect to this Amendment.
(c) Fees and Expenses. The Administrative Agent shall have received for
its own account and for the account of each Bank party to this Amendment, an
amendment fee for each Bank party to this Amendment (collectively, the
"Amendment Fees") in an amount equal to the product of (i) 0.050%, multiplied
by, (ii) the sum of the amount of such Bank's Revolving Commitment, plus the
amount of such Bank's Term A Loans, plus the amount of such Bank's Additional
Term A Loan Commitment, plus the amount of such Bank's outstanding Term B Loans,
in each case as computed on the Amendment Effective Date. The Amendment Fees
shall be nonrefundable and shall be deemed to have been earned in full when this
Amendment has been executed and delivered to the Administrative Agent by the
Borrower and Banks constituting the Majority Banks, but including all Term B
Banks, whether or not the Amendment
Effective Date occurs. In addition, the Borrower shall pay the estimated fees,
costs and out-of-pocket expenses incurred by counsel to the Administrative Agent
in connection with the preparation, negotiation, execution and delivery of this
Amendment, the Bastet/Mission Amendment, and all transaction contemplated hereby
and thereby.
(d) Effectiveness of Bastet/Mission Amendment. All conditions precedent
to the effectiveness of the Bastet/Mission Amendment shall have been satisfied
in a manner reasonably satisfactory to the Administrative Agent of such credit
facility.
Section 5. REPRESENTATIONS AND WARRANTIES. To induce the Administrative
Agent and the several Banks parties hereto to enter into this Amendment and to
grant the consents, waivers and amendments contained herein and in the
Bastet/Mission Amendment, each of the Borrower and the Parent Guarantors
represents and warrants to the Administrative Agent and the Banks as follows:
(a) Authorization; No Contravention. The execution, delivery and
performance by the applicable Credit Parties of this Amendment have been duly
authorized by all necessary partnership, corporate or limited liability company
action, as applicable, and do not and will not (i) contravene the terms of any
Charter Documents of any Credit Party, (ii) conflict with or result in any
breach or contravention of, or the creation of any Lien under, any document
evidencing any Contractual Obligation to which any Credit Party is a party or
any order, injunction, writ or decree of any Governmental Authority to which any
Credit Party is a party or its property is subject, or (iii) violate any
Requirement of Law.
(b) Governmental Authorization. No approval, consent, exemption,
authorization or other action by, or notice to, or filing with or approvals
required under state blue sky securities laws or by any Governmental Authority
is necessary or required in connection with the execution, delivery, performance
or enforcement of this Amendment.
(c) No Default. Other than the Existing Defaults, no Default or Event
of Default exists under any of the Loan Documents. No Credit Party is in default
under or with respect to (i) its Charter Documents or (ii) any material
Contractual Obligation of such Person. The execution, delivery and performance
of this Amendment shall not result in any default under any Contractual
Obligation of any Credit Party in any respect.
(d) Binding Effect. This Amendment and the Credit Agreement as amended
hereby constitute the legal, valid and binding obligations of the Credit Parties
that are parties thereto, enforceable against such Credit Parties in accordance
with their respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles of general applicability.
(e) Representations and Warranties. The representations and warranties
set forth in the Credit Agreement and the other Loan Documents are true and
correct in all material respects on and as of the Amendment Effective Date, both
before and after giving effect to the amendments contemplated in this Amendment,
as if such representations and warranties were being made on and as of the
Amendment Effective Date.
(f) Preferred Equity. Upon consummation of the Initial Public Offering
and the redemption of the Existing Parent Preferred Equity, neither the Ultimate
Parent nor any of its Subsidiaries will have outstanding any Disqualified Stock,
any Indebtedness that is convertible into Disqualified Stock, or any preferred
Capital Stock of any class or series.
Section 6. MISCELLANEOUS.
(a) Ratification of Loan Documents. Except for the specific consents,
waivers and amendments expressly set forth in this Amendment, the terms,
provisions, conditions and covenants of the Credit Agreement and the other Loan
Documents remain in full force and effect and are hereby ratified and confirmed,
and the execution, delivery and performance of this Amendment shall not in any
manner operate as a waiver of, consent to or amendment of any other term,
provision, condition or covenant of the Credit Agreement or any other Loan
Document. Without limiting the generality of the foregoing, the consents set
forth in Section 2 of this Amendment and the waivers set forth in Section 3 of
this Amendment shall be limited precisely as set forth above, and nothing in
this Amendment shall be deemed (i) to constitute a waiver of compliance or
consent to noncompliance by any of the Credit Parties with respect to any other
term provision, condition or covenant of the Credit Agreement or other Loan
Documents; (ii) to prejudice any right or remedy that the Administrative Agent
or the Banks may now have or may have in the future under or in connection with
the Credit Agreement or any other Loan Document; or (iii) to constitute a waiver
of compliance or consent to noncompliance by any of the Credit Parties with
respect to the terms, provisions, conditions and covenants of the Credit
Agreement made the subject hereof, other than as specifically set forth herein
and for the time periods specifically set forth herein.
(b) Fees and Expenses. The Borrower and the Parent Guarantors jointly
and severally agree to pay on demand all reasonable costs and expenses of the
Administrative Agent in connection with the preparation, reproduction,
execution, and delivery of this Amendment, the Bastet/Mission Amendment and any
other documents prepared in connection herewith or therewith, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Administrative Agent.
(c) Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
(d) APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
(e) Counterparts and Amendment Effective Date. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. Subject to the proviso set forth
in Section 4(a) above, this Amendment shall become effective when the
Administrative Agent has
received counterparts of this Amendment executed by the Borrower, the Parent
Guarantors, each of the other Guarantors and the Banks constituting Majority
Banks and each of the conditions precedent set forth in Sections 4(b) through
4(d) above has been satisfied (the "Amendment Effective Date"), whether or not
this Amendment has been executed and delivered by each and every Bank named on a
signature pages attached hereto.
(f) Affirmation of Guarantees. Notwithstanding that such consent is not
required thereunder, each of the Parent Guarantors and the other Guarantors
hereby consent to the execution and delivery of this Amendment and the
Bastet/Mission Amendment and the consummation of the transactions contemplated
hereby and thereby (including, without limitation, the Mergers) and reaffirm
their respective obligations under each of their respective Guaranty Agreements,
which Guaranty Agreements shall continue in full force and effect
notwithstanding the consummation of such Transactions.
(g) Confirmation of Loan Documents and Liens. As a material inducement
to the Banks to agree to grant the consents and waivers set forth herein, to
amend the Credit Agreement as set forth herein and to enter into the
Bastet/Mission Amendment, the Borrower, the Guarantors and Xxxxx X. Xxxxx hereby
(i) acknowledge and confirm the continuing existence, validity and effectiveness
of the Loan Documents to which they are parties, including, without limitation
the Security Documents and the Liens granted under the Security Documents, (ii)
agrees that the execution, delivery and performance of this Amendment and the
Bastet/Mission Amendment, and the consummation of the transactions contemplated
hereby and thereby (including, without limitation, the Mergers) shall not in any
way release, diminish, impair, reduce or otherwise adversely affect such Loan
Documents and Liens and (iii) acknowledges and agrees that the Liens granted
under the Security Documents secure, and after the consummation of the
transactions contemplated hereby and by the Bastet/Mission Amendment (including,
without limitation, the Merger) will continue to secure, the payment of the
Obligations under the Loan Documents in the same priority as on the date such
Liens were created and perfected, and the performance and observance by the
Borrower and the other Credit Parties of the covenants, agreements and
conditions to be performed and observed by each under the Credit Agreement, as
amended hereby, and the Bastet Mission Credit Agreement, as amended by the
Bastet/Mission Amendment.
(h) FINAL AGREEMENT. THIS AMENDMENT, TOGETHER WITH THE CREDIT AGREEMENT
AND OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
Exhibit 10.5
------------
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers
effective as of the Amendment Effective Date.
BORROWER:
NEXSTAR FINANCE, L.L.C.
By:/s/ Xxxxxxx Xxxxx
---------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President - Finance
PARENT GUARANTORS:
NEXSTAR BROADCASTING GROUP, L.L.C.
NEXSTAR BROADCASTING OF NORTHEASTERN PENNSYLVANIA, INC.
NEXSTAR BROADCASTING OF JOPLIN, INC.
NEXSTAR BROADCASTING OF ERIE, INC.
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.
NEXSTAR FINANCE HOLDINGS, L.L.C.
NEXSTAR FINANCE HOLDINGS, INC.
By:/s/ Xxxxxxx Xxxxx
---------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President - Finance
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
OTHER GUARANTORS (for purposes of Sections 6(f) and 6(g) hereof):
NEXSTAR BROADCASTING OF ABILENE, L.L.C.
NEXSTAR BROADCASTING OF BEAUMONT/ PORT XXXXXX, L.L.C.
NEXSTAR BROADCASTING OF CHAMPAIGN, L.L.C.
ENTERTAINMENT REALTY CORPORATION
NEXSTAR BROADCASTING OF ERIE, L.L.C.
NEXSTAR BROADCASTING OF JOPLIN, L.L.C.
NEXSTAR BROADCASTING OF LOUISIANA, L.L.C.
NEXSTAR BROADCASTING OF MIDLAND-ODESSA, L.L.C.
NEXSTAR BROADCASTING OF THE MIDWEST, INC.
NEXSTAR BROADCASTING 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, INC.)
By:/s/ Xxxxxxx Xxxxx
-----------------------------------------------------
Title: Secretary of each of the
above-named entities
BASTET BROADCASTING, INC.
By:/s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
MISSION BROADCASTING OF WICHITA FALLS, INC.
By:/s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
MISSION BROADCASTING OF JOPLIN, INC.
By:/s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
XXXXX X. XXXXX (for purposes of Section 6(g) hereof):
/s/ Xxxxx X. Xxxxx
---------------------------------------------------
XXXXX X. XXXXX
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
WACHOVIA BANK, NATIONAL ASSOCIATION (SUCCESSOR BY
MERGER TO FIRST UNION NATIONAL BANK)
By:/s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
CIBC INC.
By:/s/ Xxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Director
CIBC World Markets Corp. As Agent
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
ADMINISTRATIVE AGENT AND BANKS:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Principal
BANK OF AMERICA, N.A.
By:/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Principal
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
U.S. BANK NATIONAL ASSOCIATION (SUCCESSOR BY
MERGER TO FIRSTAR BANK, N.A.)
By:/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
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:/s/ Xxxxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
ARCHIMEDES FUNDING IV (CAYMEN), LTD.
BY: ING Capital Advisors LLC,
As Collateral Manager
By:/s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
COPERNICUS CDO EURO-I B.V.
BY: ING Capital Advisors LLC,
As Collateral Manager
By:/s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
BALANCED HIGH-YIELD FUND II, LTD.
BY: ING Capital Advisors LLC,
As Asset Manager
By:/s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
SEQUILS-ING I (HBDGM), LTD.
BY: ING Capital Advisors LLC,
As Collateral Manager
By:/s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
ARES V CLO Ltd.
By: ARES CLO Management V, LP,
Investment Manager
By: ARES CLO GP V, LLC,
Its Managing Member
By:/s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
ARES LEVERAGED INVESTMENT FUND II, L.P.
By: ARES Management II, L.P.
Its: General Partner
By:/s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
BLACK DIAMOND CLO 2000-1 LTD.
By:/s/ Xxxx Xxxxxxx
----------------------------------------------
Name: Xxxx Xxxxxxx
Title: Director
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
CARLYLE HIGH YIELD PARTNERS III, LTD.
By:/s/ Xxxxx Xxxx
-----------------------------------------------
Name: Xxxxx Xxxx
Title: Principal
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By:/s/ Payson X. Xxxxxxxxx
--------------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management
as Investment Advisor
By:/s/ Payson X. Xxxxxxxxx
--------------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
XXXXXXX & CO
By: Boston Management and Research
as Investment Advisor
By:/s/ Payson X. Xxxxxxxxx
--------------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
FIRST DOMINION FUNDING II
By:/s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
FIRST DOMINION FUNDING III
By:/s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
GENERAL ELECTRIC CAPITAL CORPORATION
By:/s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Duly Authorized Signatory
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
XXXXXX FINANCIAL, INC.
By:/s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Duly Authorized Signatory
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
KZH ING-2 LLC
By:/s/ Xxxxx Xxxxxx-Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
ALADDIN ASSET MANAGEMENT LLC-LANDMARK CDO LIMITED
By:/s/ Xxxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By: New York Life Investment Management LLC,
its Investment Manager
By:/s/ Xxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
NEW YORK LIFE INSURANCE COMPANY
By:/s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
[Signature page to Second Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
SIERRA CLO-I
By:/s/ Xxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Operating Officer
Centre Pacific, Manager
