EXHIBIT 10.53
AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
MISSION BROADCASTING, INC.,
THE SEVERAL FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTIES HERETO,
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT,
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC.
AS SYNDICATION AGENT
AND
ROYAL BANK OF CANADA,
GENERAL ELECTRIC CAPITAL CORPORATION
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL,
A DIVISION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇ BUSINESS FINANCIAL SERVICES INC.
AS CO-DOCUMENTATION AGENTS
-----------------------------
BANK OF AMERICA SECURITIES LLC,
AND
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
AS JOINT LEAD ARRANGERS
AND JOINT BOOK MANAGERS
-----------------------------
DATED AS OF FEBRUARY 13, 2003
-----------------------------
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS............................................... 1
1.01 DEFINED TERMS................................................. 1
1.02 OTHER DEFINITIONAL PROVISIONS................................. 30
1.03 ACCOUNTING PRINCIPLES......................................... 31
1.04 CLASSES AND TYPES OF LOANS AND BORROWINGS..................... 32
ARTICLE II. THE CREDIT FACILITIES..................................... 32
2.01 AMOUNTS AND TERMS OF COMMITMENTS.............................. 32
2.02 LOAN ACCOUNTS; NOTES.......................................... 35
2.03 PROCEDURE FOR BORROWING....................................... 36
2.04 CONVERSION AND CONTINUATION ELECTIONS FOR ALL BORROWINGS...... 37
2.05 REDUCTION AND TERMINATION OF COMMITMENTS...................... 38
2.07 MANDATORY PREPAYMENTS......................................... 40
2.08 MATURITY AND AMORTIZATION OF LOANS............................ 43
2.09 FEES.......................................................... 44
2.10 COMPUTATION OF FEES AND INTEREST.............................. 45
2.11 INTEREST...................................................... 46
2.12 PAYMENTS BY THE BORROWER...................................... 46
2.13 PAYMENTS BY THE BANKS TO THE ADMINISTRATIVE AGENT............. 47
2.14 SHARING OF PAYMENTS, ETC...................................... 48
2.15 SECURITY DOCUMENTS AND GUARANTY AGREEMENTS.................... 49
2.16 PROCEDURE FOR INCREMENTAL LOAN REQUESTS....................... 49
ARTICLE III. LETTERS OF CREDIT......................................... 50
3.01 LETTER OF CREDIT SUBFACILITY.................................. 50
3.02 PROCEDURES FOR ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF
CREDIT........................................................ 51
3.03 PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS................... 53
3.04 REPAYMENT OF PARTICIPATIONS................................... 55
3.05 ROLE OF THE ISSUING BANK...................................... 55
3.06 OBLIGATIONS ABSOLUTE.......................................... 56
3.07 CASH COLLATERAL PLEDGE........................................ 57
3.08 LETTER OF CREDIT FEES......................................... 57
3.09 APPLICABILITY OF ISP98 AND UCP................................ 57
3.10 CONFLICT WITH LETTER OF CREDIT APPLICATION.................... 58
ARTICLE IV. TAXES, YIELD PROTECTION AND ILLEGALITY.................... 58
4.01 TAXES......................................................... 58
4.02 ILLEGALITY.................................................... 62
4.03 INCREASED COSTS AND REDUCTION OF RETURN....................... 63
4.04 FUNDING LOSSES................................................ 63
i
4.05 INABILITY TO DETERMINE RATES.................................. 64
4.06 RESERVES ON EURODOLLAR LOANS.................................. 64
4.07 CERTIFICATES OF BANKS......................................... 64
4.08 CHANGE OF LENDING OFFICE, REPLACEMENT BANK.................... 64
4.09 SURVIVAL...................................................... 65
ARTICLE V. CONDITIONS PRECEDENT...................................... 65
5.01 CONDITIONS TO THE EFFECTIVE DATE.............................. 65
5.02 ADDITIONAL CONDITIONS TO THE EFFECTIVE DATE................... 68
5.03 CONDITIONS TO ALL BORROWINGS AND THE ISSUANCE OF
ANY LETTERS OF CREDIT......................................... 69
ARTICLE VI. REPRESENTATIONS AND WARRANTIES............................ 70
6.01 EXISTENCE; COMPLIANCE WITH LAW................................ 70
6.02 CORPORATE, LIMITED LIABILITY COMPANY OR PARTNERSHIP
AUTHORIZATION; NO CONTRAVENTION............................... 70
6.03 GOVERNMENTAL AUTHORIZATION.................................... 71
6.04 BINDING EFFECT................................................ 71
6.05 LITIGATION.................................................... 71
6.06 NO DEFAULT.................................................... 71
6.07 ERISA COMPLIANCE.............................................. 71
6.08 USE OF PROCEEDS; MARGIN REGULATIONS........................... 72
6.09 OWNERSHIP OF PROPERTY; INTELLECTUAL PROPERTY.................. 72
6.10 TAXES......................................................... 73
6.11 FINANCIAL STATEMENTS.......................................... 73
6.12 SECURITIES LAW, ETC.; COMPLIANCE.............................. 74
6.13 GOVERNMENTAL REGULATION....................................... 74
6.14 ACCURACY OF INFORMATION....................................... 74
6.15 HAZARDOUS MATERIALS........................................... 74
6.16 FCC LICENSES.................................................. 75
6.17 SUBSIDIARIES; CAPITAL STOCK .................................. 76
6.18 SOLVENCY...................................................... 76
6.19 LABOR CONTROVERSIES........................................... 76
6.20 SECURITY DOCUMENTS............................................ 76
6.21 NETWORK AFFILIATION AGREEMENTS................................ 76
6.22 CONDITION OF STATIONS......................................... 76
ARTICLE VII. AFFIRMATIVE COVENANTS..................................... 77
7.01 FINANCIAL STATEMENTS.......................................... 77
7.02 CERTIFICATES; OTHER INFORMATION............................... 78
7.03 NOTICES....................................................... 78
7.04 FCC INFORMATION............................................... 79
7.05 FCC LICENSES AND REGULATORY COMPLIANCE........................ 79
7.06 LICENSE LAPSE................................................. 79
7.07 MAINTENANCE OF CORPORATE, LIMITED LIABILITY COMPANY OR
PARTNERSHIP EXISTENCE, ETC............................................ 79
7.08 FOREIGN QUALIFICATION, ETC.................................... 79
7.09 PAYMENT OF TAXES, ETC......................................... 79
7.10 MAINTENANCE OF PROPERTY; INSURANCE............................ 80
7.11 COMPLIANCE WITH LAWS, ETC..................................... 80
7.12 BOOKS AND RECORDS............................................. 80
7.13 USE OF PROCEEDS............................................... 80
7.14 END OF FISCAL YEARS; FISCAL QUARTERS.......................... 80
7.15 INTEREST RATE PROTECTION...................................... 80
7.16 ADDITIONAL SECURITY; FURTHER ASSURANCES....................... 81
ARTICLE VIII. NEGATIVE COVENANTS........................................ 82
8.01 CHANGES IN BUSINESS........................................... 82
8.02 LIMITATION ON LIENS........................................... 82
8.03 DISPOSITION OF ASSETS......................................... 84
8.04 CONSOLIDATIONS, MERGERS, ACQUISITIONS, ETC.................... 85
8.05 LIMITATION ON INDEBTEDNESS.................................... 88
8.06 TRANSACTIONS WITH AFFILIATES.................................. 89
8.07 USE OF CREDITS; COMPLIANCE WITH MARGIN REGULATIONS............ 89
8.08 ENVIRONMENTAL LIABILITIES..................................... 90
8.09 RESTRICTED PAYMENTS........................................... 90
8.10 ADVANCES, INVESTMENTS AND LOANS............................... 90
8.13 SALES OR ISSUANCES OF CAPITAL STOCK........................... 91
8.14 NO WAIVERS, AMENDMENTS OR RESTRICTIVE AGREEMENTS.............. 91
ARTICLE IX. EVENTS OF DEFAULT......................................... 92
9.01 EVENT OF DEFAULT.............................................. 92
9.02 REMEDIES...................................................... 94
9.03 RIGHTS NOT EXCLUSIVE.......................................... 95
9.04 APPLICATION OF FUNDS.......................................... 95
ARTICLE X. THE ADMINISTRATIVE AGENT, THE ISSUING BANK, THE
SYNDICATION AGENT, THE LEAD ARRANGERS AND JOINT BOOK MANAGERS............ 96
10.01 APPOINTMENT AND AUTHORIZATION................................. 96
10.02 DELEGATION OF DUTIES.......................................... 97
10.03 LIABILITY OF AGENTS........................................... 97
10.04 RELIANCE BY THE AGENTS........................................ 97
10.05 NOTICE OF DEFAULT............................................. 98
10.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY THE AGENTS...... 98
10.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT....................... 99
10.08 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY................... 99
10.09 SUCCESSOR ADMINISTRATIVE AGENT................................ 100
10.10 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM................. 100
10.11 COLLATERAL AND GUARANTY MATTERS............................... 101
ARTICLE XI. THE GUARANTY.............................................. 102
11.01 GUARANTY FROM THE GUARANTOR PARTIES........................... 102
11.02 GUARANTY LIMITED.............................................. 105
ARTICLE XII. MISCELLANEOUS............................................. 106
12.01 AMENDMENT AND WAIVERS......................................... 106
12.02 NOTICES....................................................... 108
12.03 NO WAIVER; CUMULATIVE REMEDIES................................ 109
12.04 COSTS AND EXPENSES............................................ 109
12.05 INDEMNITY..................................................... 110
12.06 SUCCESSORS AND ASSIGNS........................................ 111
12.07 ASSIGNMENTS, PARTICIPATIONS, ETC.............................. 111
12.08 CONFIDENTIALITY............................................... 114
12.09 SET-OFF....................................................... 114
12.10 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC............... 115
12.11 COUNTERPARTS.................................................. 115
12.12 SEVERABILITY.................................................. 115
12.13 NO THIRD PARTIES BENEFITED.................................... 115
12.14 GOVERNING LAW AND JURISDICTION; WAIVER OF TRIAL BY JURY....... 115
12.15 EFFECTIVENESS................................................. 116
12.16 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.................... 117
12.17 ADDITIONAL BORROWERS.......................................... 118
SCHEDULE 1.01(A) LENDING OFFICES/NOTICE ADDRESSES
SCHEDULE 1.01(C) DESCRIPTION OF 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 8.10(e) INVESTMENTS
EXHIBIT A Form of Assignment and Assumption
EXHIBIT B Form of Closing Certificate
EXHIBIT C Form of Compliance Certificate
EXHIBIT D-1 Form of Confirmation Agreement for the Security Agreement
EXHIBIT D-2 Form of Confirmation Agreement for the Pledge Agreement
EXHIBIT D-3 Form of Confirmation Agreement for the Guaranty Agreements
EXHIBIT E-1 Form of Global Assignment and Assumption (Nexstar)
EXHIBIT E-2 Form of Global Assignment and Assumption (Mission)
EXHIBIT F Form of Information Certificate
EXHIBIT G Form of Notice of Borrowing
EXHIBIT H Form of Notice of Conversion/Continuation
EXHIBIT I Form of Revolving Loan Note
EXHIBIT J Form of Solvency Certificate
EXHIBIT K Form of Subsidiary Guaranty Agreement
EXHIBIT L Form of Term B Loan Note
V
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 13,
2003, is among MISSION BROADCASTING, INC., a Delaware corporation, 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 ▇▇▇▇▇▇▇ CORPORATE LENDING INC., as the Syndication Agent and ROYAL
BANK OF CANADA, GENERAL ELECTRIC CAPITAL CORPORATION and ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL,
A DIVISION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇ BUSINESS FINANCIAL SERVICES INC., as the
Co-Documentation Agents.
RECITALS
A. The Borrower, the Administrative Agent, and the several banks
parties thereto entered into that certain 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, the "Existing Mission Credit
Agreement").
B. Pursuant to a Global Assignment and Acceptance dated as of even
date herewith, the Banks parties to the Existing Mission Credit Agreement have
assigned certain of their rights and obligations under the Existing Mission
Credit Agreement to the several Banks parties to such Global Assignment and
Acceptance.
C. The parties wish to amend and restate the Existing Mission
Credit Agreement, which amendment and restatement is in extension and renewal,
and not in extinguishment or novation, of the indebtedness outstanding under the
Existing Mission Credit Agreement, as herein provided, it being acknowledged and
agreed by the Borrower and the Guarantors that the Indebtedness under this
Agreement constitutes an extension and renewal of the outstanding indebtedness
under the Existing Mission Credit Agreement, and that all Liens and Guaranty
Agreements that secure the repayment of outstanding indebtedness under the
Existing Mission 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 Mission Credit Agreement
shall be and hereby is amended and restated in its entirety as follows:
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:
AMENDED AND RESTATED CREDIT AGREEMENT - Page 1
"Acquired Properties" means television station KACB licensed to San
Angelo, Texas and television station KRBC licensed to Abilene, Texas.
"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.
"Additional Security Documents" has the meaning specified in Section
7.16(a).
"Adjustment Date" means each "Adjustment Date" as determined pursuant to
the Nexstar Credit Agreement.
"Administrative Agent" means Bank of America, N.A. in its capacity as
Administrative Agent for the Banks hereunder, and any successor to such agent.
"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 12.02.
"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 ▇▇▇▇▇▇▇
Corporate Lending Inc., in its capacity as the Syndication Agent, Bear, ▇▇▇▇▇▇▇
& 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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 2
"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.
"Aggregate Revolving Commitment" means the sum of the Revolving
Commitments of all of the Banks, in an initial amount of $30,000,000, 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 $55,000,000, as such amount may be
adjusted from time to time pursuant to this Agreement.
"Agreement" means this 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 3
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
-------------------------------------------------------------------------------
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 to 5.75 to 1.00 3.00%
-------------------------------------------------------------------------------
Level III Less that 5.75 to 1.00 but greater than or
equal to 5.25 to 1.00 2.75%
-------------------------------------------------------------------------------
Level IV Less than 5.25 to 1.00 but greater than or
equal to 4.75 to 1.00 2.50%
-------------------------------------------------------------------------------
Level V Less than 4.75 to 1.00 but greater than or
equal to 4.25 to 1.00 2.25%
-------------------------------------------------------------------------------
Level VI Less than 4.25 to 1.00 2.00%
-------------------------------------------------------------------------------
Level Consolidated Total Leverage Ratio Applicable Percentage
Rate for Term B
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
----------
* As adjusted in accordance with Section 2.16(a)
AMENDED AND RESTATED CREDIT AGREEMENT - Page 4
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 12.07.
"Assignment and Assumption" means an Assignment and Assumption,
substantially in the form of Exhibit A.
"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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 5
"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.
"Borrower" means Mission Broadcasting, Inc., a Delaware corporation and
any other Person that becomes a Borrower pursuant to Section 12.17.
"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 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, 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 6
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 the Borrower or
any Affiliate of the Borrower) incorporated under the laws of the United States
or any State thereof or the District of Columbia rated P-1 or its equivalent by
▇▇▇▇▇'▇ 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 ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ & 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).
"Change of Control" means that 100% of the voting and economic interest
of the Borrower shall cease to be subject to the ▇▇▇▇▇ Pledge Agreement or a
pledge agreement substantially in the form of the ▇▇▇▇▇ Pledge Agreement or
otherwise in form and substance reasonably satisfactory to the Administrative
Agent.
"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 B.
"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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇
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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 7
"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 C, 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 D-1, (ii) a
Confirmation Agreement for the Pledge Agreement, substantially in the form of
Exhibit D-2 and (ii) a Confirmation Agreement for the Guaranty Agreements,
substantially in the form of Exhibit D-3.
"Consolidated Senior Leverage Ratio" means, on any date, the
"Consolidated Senior Leverage Ratio" determined under the Nexstar Credit
Agreement.
"Consolidated Total Leverage Ratio" means, on any date, the
"Consolidated Total Leverage Ratio" determined under the Nexstar Credit
Agreement.
"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.
"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.
"Credit Parties" means the Borrower, the Nexstar 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 neither ▇▇▇▇▇ ▇. ▇▇▇▇▇ nor ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ will
be deemed to be a "Credit Party".
AMENDED AND RESTATED CREDIT AGREEMENT - Page 8
"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 Mission
Entity to any Person (other than the Borrower or any Wholly-Owned Subsidiary of
the Borrower) of any assets or property of any Mission Entity, excluding (i)
assets or property disposed of in the ordinary course of business of such
Mission Entity and (ii) inventory, Real Property or equipment no longer used or
useful in the business of such Mission 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
Mission Entity including, without limitation, any Station of any Mission Entity
or the Capital Stock of any Subsidiary of any Mission 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 12.15.
"Eligible Assignee" has the meaning specified in Section 12.07.
"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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 9
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 Borrower or any of its Subsidiaries
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 the Borrower and/or any of its Subsidiaries; (ii) a
withdrawal by any Borrower, any of its Subsidiaries 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 the Borrower and/or any of its
Subsidiaries; (iii) a complete or partial withdrawal by the Borrower, any of its
Subsidiaries or any ERISA Affiliate from a Multiemployer Plan which could
reasonably be expected to result in a material liability to the Borrower and/or
any of its Subsidiaries 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 the Borrower, any of its Subsidiaries
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 the Borrower,
any of its Subsidiaries 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 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 the
Borrower, any of its Subsidiaries 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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 10
"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.
"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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 11
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.
"Existing Mission Credit Agreement" has the meaning specified in Recital
A.
"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.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any successor thereto.
"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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 12
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).
"Fund" has the meaning specified in Section 12.07.
"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
Mission Credit Agreement, each financial institution party to the Nexstar Credit
Agreement and each Bank that is a party hereto in substantially the forms
attached as Exhibits E-1 and E-2, respectively.
"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).
"Guaranteed Obligations" means, with respect to each Borrower as a
Guarantor under Article XI of this Agreement, all Obligations of each other
Borrower under this Agreement and the other Loan Documents.
"Guaranteed Party" means each Borrower, with respect to its Guaranteed
Obligations under Article XI of this Agreement.
"Guarantor" means (i) each Credit Party which is a party to a Guaranty
Agreement and (ii) each Borrower, as a Guarantor Party under Article XI of this
Agreement.
"Guarantor Party" means each Borrower, with respect to its Guaranty
Obligations under Article XI of this Agreement.
"Guaranty Agreements" means the Nexstar Guaranty of Mission Obligations,
the Subsidiary Guaranty Agreement, the Mission Guaranty of Nexstar Obligations,
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,
AMENDED AND RESTATED CREDIT AGREEMENT - Page 13
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.
"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).
AMENDED AND RESTATED CREDIT AGREEMENT - Page 14
"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 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 Nexstar
Subordinated Indebtedness that is then outstanding and (y) the maturity of any
Permitted Nexstar 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 12.05.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 15
"Indemnified Person" has the meaning specified in Section 12.05.
"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 F.
"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
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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 16
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 Agreement" means a supplement to the Pledge Agreement
in the form of Annex B thereto, whereby a Mission Entity becomes a party to, and
assumes all obligations of, a pledgor under the Pledge Agreement.
"Joinder to Security Agreement" means a supplement to the Security
Agreement in the form of Annex C thereto, whereby a Mission 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,
▇▇▇▇▇▇▇ & 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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 17
"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) $10,000,000.
"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.
"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 each "Leverage Ratio
Determination Date" as determined pursuant to the Nexstar Credit Agreement.
"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".
AMENDED AND RESTATED CREDIT AGREEMENT - Page 18
"Loan" means any extension of credit made by any Bank pursuant to this
Agreement.
"Loan Documents" means this Agreement (including the Guaranty set forth
in Article XI hereof), 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 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) Nexstar Banks (whether or not also
Banks) whose respective Nexstar 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.
"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 Mission 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 19
(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.
"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
Nexstar Incremental Facilities (as in effect at such time) or, with respect to
any Nexstar Incremental Facility with respect to which such incremental
commitments have been terminated in full, the outstanding incremental loans to
the Nexstar Borrower under such Nexstar 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.
"Mission Entity" means the Borrower and any Person which is a direct or
indirect Subsidiary of the Borrower.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and its successors.
"Mortgage Policies" mean the Mortgage Policies under, and as defined in,
the Existing Mission Credit Agreement.
"Mortgaged Properties" mean all Real Property owned or leased by any
Mission Entity listed on Schedule 6.09 and designated as "Mortgaged Properties"
therein.
"Mortgages" mean all Mortgages (as defined in the Existing Mission
Credit Agreement) granted by certain of the Mission Entities pursuant to the
Existing Mission Credit Agreement (or any predecessor credit agreement which was
amended and restated by the Existing Mission 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 Mission 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 and (iv) any portion
AMENDED AND RESTATED CREDIT AGREEMENT - Page 20
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 Mission 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 Mission Entity exceeds the
reserved amount of the cash proceeds of such Disposition on such date shall be
credited against any subsequent Net Cash Proceeds that any Mission 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 Mission 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 Mission Entity or an Affiliate thereof), satisfactorily
documented and paid (whether on behalf of such Mission Entity or an Affiliate
thereof) to any Person not an Affiliate of a Mission Entity.
"Net Issuance Proceeds" means, with respect to the sale or issuance of
Capital Stock, or any capital contribution to, any Mission Entity from a source
other than a Mission 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 Mission Entity or an Affiliate thereof),
satisfactorily documented and paid (whether on behalf of such Mission Entity or
an Affiliate thereof) to any Person not an Affiliate of a Mission 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 Banks" means the "Banks" as that term is defined in the Nexstar
Credit Agreement.
"Nexstar Borrower" means the "Borrower" as that term is defined in the
Nexstar Credit Agreement.
"Nexstar Credit Agreement" means that certain Second Amended and
Restated Credit Agreement, dated as of the date of this Agreement, among the
Nexstar Borrower, as borrower, the Ultimate Nexstar Parent, certain of its
Subsidiaries from time to time parties thereto, the financial institutions from
time to time parties thereto, Bank of America, N.A., as the administrative
agent, Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., as the syndication agent and Royal
AMENDED AND RESTATED CREDIT AGREEMENT - Page 21
Bank of Canada, General Electric Capital Corporation and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital
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.
"Nexstar Entity" means the Ultimate Nexstar Parent and any Person which
is a direct or indirect Subsidiary of the Ultimate Nexstar Parent.
"Nexstar Equity" means Nexstar Broadcasting Group, Inc., a Delaware
corporation formerly known as Nexstar Equity Corp.
"Nexstar Facility Percentage" means the "Facility Percentage" as that
term is defined in the Nexstar Credit Agreement.
"Nexstar Finance Holdings" means Nexstar Finance Holdings, 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 Incremental Facility" means the "Incremental Facility" as that
term is defined in the Nexstar Credit Agreement.
"Nexstar Loan Documents" means the "Loan Documents" as that term is
defined in the Nexstar Credit Agreement.
"Nexstar Loan" means any extension of credit made by any Bank under or
pursuant to the Nexstar Credit Agreement.
"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 G.
"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 H.
"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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 22
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 Guarantors" has the meaning specified in the Nexstar Credit
Agreement.
"Parent Mergers" means, collectively, (a) the merger (prior to the
Initial Public Offering) of Nexstar Equity, the Ultimate Nexstar 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.
"Participant" has the meaning specified in Section 12.07(c).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which the Borrower, any Subsidiary of the
Borrower 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 Borrower Unsecured Indebtedness" means unsecured Indebtedness
of the Borrower and/or its Subsidiaries to a Person other than a Mission Entity
or an Affiliate of a Mission 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, 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 Mission Entity are granted (or may
arise at any time) to secure the repayment of such Indebtedness and no Guaranty
Obligation of any other Mission Entity is granted for the payment or collection
of such Indebtedness.
"Permitted Liens" has the meaning specified in Section 8.02.
"Permitted Nexstar Holdings Unsecured Indebtedness" means the "Permitted
Holdings Unsecured Indebtedness" as that term is defined in the Nexstar Credit
Agreement.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 23
"Permitted Nexstar Subordinated Indebtedness" means the "Permitted
Borrower Subordinated Indebtedness" as that term is defined in the Nexstar
Credit Agreement.
"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 the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
sponsors or maintains or to which the Borrower, any Subsidiary of the Borrower
or any ERISA Affiliate makes, is making, or is obligated to make contributions
and includes any Pension Plan or Multiemployer Plan.
"Pledge Agreement" means the Pledge 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 Agreement
or the ▇▇▇▇▇ Pledge Agreement, as applicable.
"Pledged Entity" means each "Pledged Partnership" and each "Pledged
Limited Liability Company" as these terms are defined in the Pledge Agreement.
"Pro Forma Basis" has the meaning specified in the Nexstar Credit
Agreement.
"Pro Forma Compliance Certificate" has the meaning specified in the
Nexstar Credit Agreement.
"Real Property" means, with respect to any Person, all of the right,
title and interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
"Recovery Event" means the receipt by any Mission 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 Mission Entity.
"Register" has the meaning specified in Section 12.07(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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 24
"Reinvestment Election" has the meaning specified in Section 2.07(b).
"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 Mission Entity in
AMENDED AND RESTATED CREDIT AGREEMENT - Page 25
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).
"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 12.07 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 26
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 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
▇▇▇▇▇▇-▇▇▇▇ 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 the Borrower has granted security interests in its
assets.
"Security Agreement Collateral" has the meaning specified in the
Security Agreement.
"Security Documents" means collectively the ▇▇▇▇▇ Pledge Agreement, the
Pledge Agreement, the Security Agreement, each Mortgage and each Joinder to
Pledge 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.
"▇▇▇▇▇ Pledge Agreement" means the ▇▇▇▇▇ Pledge Agreement, dated as of
January 12, 2001, pursuant to which ▇▇▇▇▇ ▇. ▇▇▇▇▇, the sole shareholder of
Mission, has pledged or collaterally assigned, or is required to pledge or
collaterally assign, 100% of the Capital Stock of
AMENDED AND RESTATED CREDIT AGREEMENT - Page 27
the Borrower, including any Person that becomes a Borrower after the Effective
Date pursuant to Section 12.17.
"Solvency Certificate" means a certificate of the Mission Entities
executed on their behalf by a Responsible Officer of each of the Mission
Entities, substantially in the form of Exhibit J.
"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.
"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 Nexstar
Subordinated Indebtedness that is then outstanding and (y) the maturity of any
Permitted Nexstar 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 Nexstar Subordinated
Indebtedness that is then outstanding and (y) the maturity of any Permitted
Nexstar 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, collectively, (i) the Acquired Properties,
(ii) each television station listed in Schedule 6.16 hereto, (iii) any
television station licensed by the FCC to any Mission 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 28
respect to any single television 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.
"Subsidiary Guarantor" means each Subsidiary of the Borrower.
"Subsidiary Guaranty Agreement" means a Subsidiary Guaranty Agreement,
substantially in the form of Exhibit K, 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 ▇▇▇▇▇▇▇ 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 Mission 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.
"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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 29
"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 Mission Entities on the Effective Date
and the refinancing of the Loans under the Existing Mission Credit Agreement.
"Transferee" has the meaning specified in Section 12.08.
"Ultimate Nexstar Parent" means Nexstar Broadcasting Group, L.L.C., a
Delaware limited liability company; provided that upon consummation of the
Parent Mergers, the "Ultimate Nexstar 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.
"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 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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 30
(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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 31
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).
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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 32
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
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 Nexstar
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 Nexstar Credit Agreement) of
the Nexstar Borrower and unused Incremental Revolving
Commitments (as that
AMENDED AND RESTATED CREDIT AGREEMENT - Page 33
term is defined in the Nexstar Credit Agreement) of the
Nexstar 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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 34
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 of the Nexstar
Credit Agreement and set forth in a Pro Forma Compliance
Certificate delivered to the Administrative Agent based on
financial projections of the Mission Entities, the Nexstar
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
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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 35
(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 I or Exhibit L, 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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 36
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.
(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,
AMENDED AND RESTATED CREDIT AGREEMENT - Page 37
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
12.02 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.
(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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 38
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 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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 39
(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.
(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 Mission 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 this
requirement for mandatory prepayment will be further reduced to
the extent that the Borrower elects, as
AMENDED AND RESTATED CREDIT AGREEMENT - Page 40
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 Mission 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 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 the Business Day after the date of the receipt by any
Mission Entity of Net Issuance Proceeds from any sale or issuance of
Capital Stock or cash capital contribution, 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 100% 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(d) 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
Mission 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 41
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 Mission Entity committed in writing to such
Acquisition, then the amount of prepayments required to be made under
this Section 2.07(d) shall be increased by the amount of such Net
Issuance Proceeds that were not used to consummate such Acquisition.
(e) If on any date any Mission Entity shall incur or issue
any Indebtedness (other than the Indebtedness described in subsections
(a) - (d), and (f) - (h) 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(e) 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 Mission 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 Mission 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 Debt
Proceeds that were not used to consummate such Acquisition.
(f) 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.
(g) 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.
(h) 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).
(i) 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 42
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.
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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 43
(b) Application of Term B Loan Payments. Subject to Section
2.07(i), 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 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), or (e) 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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 44
(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 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 Mission Credit Agreement.
Notwithstanding anything to the contrary in this Agreement, all fees
which, as of the Effective Date, remain outstanding under the Existing
Mission 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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 45
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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 46
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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 47
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 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 12.09) with
respect to such participation as fully as if such Bank were the direct
creditor of the Borrower in the amount of such participation.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 48
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 Nexstar Entities
pursuant to the Nexstar Guaranty of Mission Obligations and by any
Subsidiaries of the Borrower pursuant to one or more Subsidiary Guaranty
Agreements.
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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 49
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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 50
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 unreimbursed loss, cost
or expense which was not applicable on the Effective Date and
which the Issuing Bank in good ▇▇▇▇▇ ▇▇▇▇▇ 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 51
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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 52
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.
(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)
AMENDED AND RESTATED CREDIT AGREEMENT - Page 53
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 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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 54
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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 55
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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 56
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.
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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 57
"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
(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):
AMENDED AND RESTATED CREDIT AGREEMENT - Page 58
(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;
(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 12.02, 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 12.07 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 59
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
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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 60
(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:
(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,
AMENDED AND RESTATED CREDIT AGREEMENT - Page 61
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.
(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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 62
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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 63
(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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 64
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 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 12.01(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 12.07 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) Amended and Restated Credit Agreement. This Agreement
duly executed and delivered by 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 65
it of a facsimile or other written confirmation from such party of
execution of a counterpart of this Agreement by such party).
(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 Drinker, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP,
counsel to the Borrower and/or an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇,
special counsel to the Credit Parties, each addressed to the
Administrative Agent and the Banks, which opinions 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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 66
(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:
(i) the representations and warranties of 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 Mission Entity will have any
Indebtedness outstanding except as shall be permitted under
Section 8.05.
(g) Financial Statements.
(i) consolidated financial statements of the Mission
Entities for Fiscal Years 1999, 2000 and 2001;
(ii) a combined balance sheet for the Acquired
Properties, and an income statement for each Acquired Property,
for each of its fiscal years ending during 1999, 2000 and 2001;
(iii) unaudited quarterly financial statements for the
Mission Entities for the last quarter for which unaudited
quarterly statements were required to be delivered pursuant to
the Existing Mission Credit Agreement; and
(iv) monthly financial statements for the Mission
Entities for each month ending after the quarter described in
clause (iii) above and for which monthly statements were
required to be delivered pursuant to the Existing Mission Credit
Agreement.
(h) Solvency Certificate. The Solvency Certificate.
(i) Information Certificate. The Information Certificate,
duly executed on the Borrower's behalf by a Responsible Officer of the
Borrower.
(j) Confirmation Agreements. Confirmation Agreements, duly
executed by the Borrower, substantially in the form of ▇▇▇▇▇▇▇▇ ▇-▇, ▇-▇
and D-3.
(k) Other Documents. Such other approvals, opinions or
documents, including financing statements, as either Agent or any Bank
may reasonably request.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 67
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) Nexstar Credit Agreement. On or prior to the Effective
Date, the Nexstar Borrower shall have entered into the Nexstar Credit
Agreement and related loan documents, and shall have utilized the
proceeds from same to incur up to $180,000,000 in Indebtedness to
refinance the Indebtedness outstanding under the Existing Nexstar Credit
Agreement (as defined in the Nexstar 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 Nexstar 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C. 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 Mission 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 68
Documents, the Nexstar 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 Nexstar 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 Nexstar Credit
Agreement is not less than B2 by ▇▇▇▇▇'▇ 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 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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 69
(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, the Borrower both as to itself and as to its 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 Mission 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
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
Mission Entity of this Agreement and any other Loan Document to which such
Mission 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
Mission Entity and do not and will not: (a) contravene any terms of the Charter
Documents of such Mission 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 Mission 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)
AMENDED AND RESTATED CREDIT AGREEMENT - Page 70
to which such Mission Entity is a party or any order, injunction, writ or decree
of any Governmental Authority to which such Mission 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 Mission 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 Mission Entity is a party constitutes the legal, valid and binding
obligation of such Mission Entity to the extent such Mission Entity is a party
thereto, enforceable against such Mission 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 Mission Entity, threatened at
law, in equity, in arbitration or before any Governmental Authority, against any
Mission 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.
6.06 No Default. No Default or Event of Default exists or will result
from the incurring of any Obligations by any Mission Entity. No Mission 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 Mission Entity nothing has occurred which would cause the loss of
such qualification or the revocation of such determination letter.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 71
(b) There are no pending or, to the best knowledge of each
Mission 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 Mission 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 Mission 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 Mission 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 Mission 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 Mission 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 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 Mission 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 Mission Entities are listed on
Schedule 6.09.
(b) (i) Each Mission 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 Mission Entity enjoys
peaceful and undisturbed possession under all such leases under
AMENDED AND RESTATED CREDIT AGREEMENT - Page 72
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 Mission Entity
has received any notice of, nor has any knowledge of, any pending or
contemplated condemnation proceeding affecting any Real Property owned
by such Mission Entity or any sale or disposition thereof in lieu of
condemnation and (ii) no Mission 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 Mission 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 Mission 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 Mission Entity,
the use of such Intellectual Property by such Mission Entity does not
infringe on the rights of any Person.
6.10 Taxes. Each Mission 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 Mission 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 Mission Credit Agreement for the
Fiscal Quarter ended September 30, 2002 do and will present fairly, in all
material respects, the financial condition of the Mission 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 Mission 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 73
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 Mission 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 Mission 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 Mission 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 Mission 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 Mission Entity has caused or permitted
any Hazardous Material to be disposed of or otherwise released, to its best
knowledge, either from, on or under any property currently or formerly legally
or beneficially owned or operated by, or otherwise used by such Mission Entity,
in any manner which has had or is reasonably likely to have, a Material Adverse
Effect. To the best knowledge of each Mission 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 Mission 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 Mission 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 Mission 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 74
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 Mission 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 Mission Entity and the FCC Licenses of each Mission
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 Mission 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 Mission 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, 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
Mission 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 Mission 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 Acquired Properties, if any.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 75
6.17 Subsidiaries; Capital Stock. No Mission 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.
6.18 Solvency. As of the date on which this representation and
warranty is made or deemed made, each Mission 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 Mission Entity, threatened against any Mission
Entity which could reasonably be expected to have a Material Adverse Effect.
6.20 Security Documents.
(a) Each of the Pledge Agreement and the ▇▇▇▇▇ Pledge
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 Agreement and the ▇▇▇▇▇ Pledge 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.
(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 Mission 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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 76
ARTICLE VII.
AFFIRMATIVE COVENANTS
The Borrower 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 Borrower and its consolidated Subsidiaries as at the end of
such Fiscal Year and the related consolidated statements of income or
operations, 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 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 Borrower or any of its 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 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 Borrower executed on behalf of Borrower 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 Borrower and its
consolidated Subsidiaries; 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 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 Borrower executed on behalf of the Borrower 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),
AMENDED AND RESTATED CREDIT AGREEMENT - Page 77
the financial position and the results of operations of the Borrower and
its consolidated Subsidiaries.
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 Borrower;
(b) promptly after the same are sent, copies of all
financial statements and reports which any Mission 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 Mission 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 Borrower or any of its 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 (if any) of any Mission Entity by ▇▇▇▇▇'▇ or S & P.
7.03 Notices. The Borrower shall, upon any Responsible Officer of any
Mission 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 Mission
Entity, is threatened against any Mission 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 Mission Entity to the Banks which could reasonably be
expected to have a Material Adverse Effect; or
(d) any of the following events affecting any Mission 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 Mission Entity or
any ERISA Affiliate with respect to such event:
(i) an ERISA Event; or
AMENDED AND RESTATED CREDIT AGREEMENT - Page 78
(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 Mission Entity from the FCC or any other
Governmental Authority or filing or receipt thereof by any Mission 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
Mission Entity which is available to any Mission Entity, in each case which
could reasonably be expected to have a Material Adverse Effect and (b) if
applicable, a copy of any notice or application by any Mission 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 Borrower shall, and
shall cause each of its Subsidiaries to, comply in all material respects with
all terms and conditions of all FCC Licenses covering the Stations, 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 Borrower and/or its Subsidiaries or the operation of the Stations of any
Mission Entity.
7.06 License Lapse. As soon as possible and in any event within five
days after the receipt thereof by any Mission 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 Mission 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 Mission 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 Borrower shall, and shall cause each of its
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 Mission Entity except to the extent
otherwise permitted pursuant to Section 8.04 (including by waiver or consent).
7.08 Foreign Qualification, etc. The Borrower will, and will cause
each of its Subsidiaries to, cause to be done at all times all things necessary
to maintain and preserve the rights and franchises of the Borrower and its
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.
7.09 Payment of Taxes, etc. The Borrower will, and will cause each of
its 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 Mission Entity, as well as material claims of any kind which, if
unpaid, might become a Lien upon a Mission Entity's properties, and will pay
AMENDED AND RESTATED CREDIT AGREEMENT - Page 79
(before they become delinquent) all other material obligations and liabilities;
provided, however, that the foregoing shall not require the Borrower or any of
its Subsidiaries to pay or discharge any such tax, assessment, charge, levy,
lien, obligation or liability so long as such Mission 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 Borrower will, and will
cause each of its Subsidiaries to, keep all of the material property and
facilities that are useful and necessary in the business of the Mission Entities
in such condition as is sufficient for the operation of such business in the
ordinary course and will maintain, and cause each of its Subsidiaries to
maintain, such insurance as may be required by law and such other insurance, to
such extent and against such hazards and liabilities, as is customarily
maintained by companies similarly situated to the Mission Entities.
7.11 Compliance with Laws, etc. The Borrower will, and will cause
each of its 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 Borrower will, and will cause each of its
respective Subsidiaries to, keep proper books and records reflecting all of
their business affairs and transactions in accordance with GAAP. The Borrower
will, and will cause each of its 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 Mission 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 Mission 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.
7.14 End of Fiscal Years; Fiscal Quarters. The Borrower will, for
financial reporting purposes, cause (a) its and each of its Subsidiaries' fiscal
years to end on December 31 of each year and (b) its and each of its
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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 80
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
Indebtedness of the Nexstar Borrower and its Subsidiaries is subject to either a
fixed interest rate or interest rate protection.
7.16 Additional Security; Further Assurances.
(a) The Borrower will, and will cause each of its
Subsidiaries to, grant to the Collateral Agent, for the benefit of the
Banks, security interests and mortgages in such assets and properties of
the Mission 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 Borrower will, and will cause each of its
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 the Borrower creates or acquires any
additional Subsidiary, the Borrower will promptly notify the
Administrative Agent thereof and cause such Subsidiary, within the time
period required by clause (f) of Section 8.10, to execute and deliver
appropriate Guaranty Supplements (or a Subsidiary Guaranty Agreement), a
Joinder to Security Agreement and a Joinder to Pledge 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 Mission
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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 81
(e) The Borrower agrees 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 Mission Entity pursuant to the terms of this
Section 7.16; provided that in no event shall any Mission 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 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 Borrower will not, and will not cause
or permit any of its Subsidiaries to, directly or indirectly, alter in a
fundamental and substantial manner the character of the Television Broadcasting
Business of the Mission Entities, taken as a whole, from that conducted
immediately following the Effective Date.
8.02 Limitation on Liens. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume, or suffer to exist any Lien
upon any of its 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) 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;
(b) Liens encumbering property of any Mission 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 Mission Entity
in accordance with GAAP;
(c) Liens encumbering property of any Mission 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
Mission 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 $500,000 in the aggregate at any time
outstanding for all Mission Entities;
AMENDED AND RESTATED CREDIT AGREEMENT - Page 82
(d) 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 Mission Entity;
(e) judgment Liens securing amounts not in excess of (i)
$250,000 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) $250,000 in the aggregate at any
time outstanding for all Mission Entities;
(f) Liens securing documentary letters of credit; provided
such Liens attach only to the property or goods to which such letter of
credit relates;
(g) 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
$1,500,000 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 $1,500,000 in the aggregate at
any time outstanding for the Borrower and its Subsidiaries;
(h) interests in Leaseholds under which a Mission Entity is
a lessor, provided such Leaseholds are otherwise not prohibited by the
terms of this Agreement;
(i) bankers' Liens in respect of deposit accounts that are
not part of the perfected Collateral;
(j) Liens created by the Security Documents;
(k) 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);
(l) the options to purchase assets of any Mission Entity
granted by such Mission Entity to the Ultimate Nexstar Parent or one or
more of its Subsidiaries; and
AMENDED AND RESTATED CREDIT AGREEMENT - Page 83
(m) other Liens, so long as the obligations secured thereby
do not exceed $250,000 in the aggregate at any time outstanding.
8.03 Disposition of Assets. The Borrower will not, and will not
suffer or permit any of its Subsidiaries to, directly or indirectly, make any
Disposition or enter into any agreement to make any Disposition, except:
(a) any Mission 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 Mission Entities, the Nexstar 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 of the Nexstar
Credit Agreement, (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 for the then applicable
Measurement Period giving effect to the consummation of such Disposition
and any related repayment of Indebtedness;
(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
8.12 (including by waiver or consent);
AMENDED AND RESTATED CREDIT AGREEMENT - Page 84
(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); and
(h) a Disposition pursuant to the exercise of any option
described in Section 8.02(l).
8.04 Consolidations, Mergers, Acquisitions, etc. The Borrower will
not, and will not suffer or permit any of its 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 Borrower and its 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,
(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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 85
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 of the Nexstar Credit Agreement for
such date,
(2) a Pro Forma Compliance Certificate 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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 86
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
Borrower in accordance with Section 8.10(f); and
(f) the Borrower or a Wholly-Owned Subsidiary of the
Borrower which is a Guarantor may acquire the stock and/or assets of the
corporations that directly or indirectly own the Acquired Properties,
provided
(A) the maximum purchase price (net of
adjustments set forth in Section 2.4 of the Asset
Purchase Agreement, dated December 13, 2002, by and
among the Borrower, LIN Television Corporation, TVL
Broadcasting of Abilene, Inc., and Abilene Broadcasting,
LLC), is $10,000,000,
(B) not more than $1,500,000 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 an asset
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 assets,
(C) the purchase of such assets must be
consummated no later than June 30, 2004, and
(D) no Event of Default exists or will exist
before and after giving effect to the consummation of
such transaction; and
(g) with respect to any Station owned by a Mission Entity,
any Mission Entity may (subject to the FCC's rules regulations) enter
into a Local Marketing Agreement, Joint Sales Agreement and/or Shared
Services Agreement with any Nexstar Entity.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 87
8.05 Limitation on Indebtedness. The Borrower will not, and will not
suffer or permit any of its 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 provisions of Section 8.10 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 Nexstar Credit Agreement)
of any Nexstar 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
Nexstar Credit Agreement) of any Nexstar 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 of the Nexstar Credit
Agreement, based on financial projections of the Mission Entities, the
Nexstar 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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 88
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 Nexstar Entity permitted under Section 8.05(g) of the Nexstar
Credit Agreement outstanding at any time; and
(h) Guaranty Obligations of the Mission Entities (other than
the Borrower) with respect to Permitted Nexstar Subordinated
Indebtedness and Guaranty Obligations of the Mission Entities with
respect to Permitted Nexstar Holdings Unsecured Indebtedness, and (ii)
subordinated Guaranty Obligations of the Mission Entities (other than
the Borrower) with respect to Permitted Seller Subordinated Indebtedness
incurred by the Borrower and subordinated Guaranty Obligations of the
Mission Entities with respect to Permitted Seller Subordinated
Indebtedness (as that term is defined in the Nexstar Credit Agreement).
8.06 Transactions with Affiliates. The Borrower will not, and will
not permit any of its 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 Mission 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 Mission 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;
(c) any management services agreement other than the
Agreement dated January 1, 2001 originally entered into between the
Mission Entities and ▇▇▇▇▇ ▇. ▇▇▇▇▇/▇▇▇▇▇▇ ▇. ▇▇▇▇▇; or
(d) compensation in excess of $250,000 to ▇▇▇▇▇ ▇. ▇▇▇▇▇,
increased by $50,000 for each additional Station acquired by a Mission
Entity (except with respect to the Acquired Properties) and decreased by
$50,000 for each Station Disposed of by a Mission Entity.
8.07 Use of Credits; Compliance with Margin Regulations. The Borrower
will not, and will not suffer or permit any of its Subsidiaries to, use any
portion of the proceeds of the Loans or any Letter of Credit, directly or
indirectly, to purchase or carry Margin Stock other than
AMENDED AND RESTATED CREDIT AGREEMENT - Page 89
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 Mission 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 Mission Entity.
8.08 Environmental Liabilities. The Borrower will not and will not
permit any of its Subsidiaries to violate any Environmental Law to an extent
sufficient to give rise to a Material Adverse Effect; and, without limiting the
foregoing, the Borrower will not, and will not permit any of its 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 the Borrower or any of its Subsidiaries, 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 Restricted Payments. The Borrower shall not, and shall not
permit any of its Subsidiaries to, make any Restricted Payment, except:
(a) the Subsidiaries of the Borrower may make Restricted
Payments to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
and
(b) 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 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 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.
8.10 Advances, Investments and Loans. The Borrower will not, and will
not permit any of its 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 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 Mission 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;
AMENDED AND RESTATED CREDIT AGREEMENT - Page 90
(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 8.10(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 Mission 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 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 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 Mission Entities may make loans and advances to
their respective employees in the ordinary course of business in an
aggregate principal amount for all Mission Entities not to exceed
$100,000 at any time outstanding; and
(h) the Borrower may make intercompany loans and advances to
any Wholly-Owned Subsidiary of the Borrower which is a Credit Party.
8.11 Limitation on Business Activities of the Mission Entities. 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 Borrower will not, and
will not permit any of its respective Subsidiaries to, sell or issue any of
their Capital Stock to any Person; provided that 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.
8.14 No Waivers, Amendments or Restrictive Agreements. The Borrower
will not, and will not permit any of its 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 91
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) 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 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
(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 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 any Indebtedness having an aggregate principal amount of
$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 any 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 92
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 Nexstar Credit Agreement) shall occur and be continuing
under the Nexstar 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 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
$250,000; (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 $250,000; (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 $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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 93
(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 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.
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;
AMENDED AND RESTATED CREDIT AGREEMENT - Page 94
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
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.
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;
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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 95
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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 96
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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 97
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 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,
AMENDED AND RESTATED CREDIT AGREEMENT - Page 98
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 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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 99
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 12.04 and
12.05 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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 100
counsel and all other amounts due the Banks and the Administrative Agent
under Sections 3.08, 2.09 and 12.04) 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 12.04.
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 12.01, if approved, authorized or ratified in writing by the
Majority Banks;
(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,
AMENDED AND RESTATED CREDIT AGREEMENT - Page 101
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.
THE GUARANTY
11.01 Guaranty from the Guarantor Parties.
(a) In order to induce the Banks to make Loans to the
Borrower under this Agreement and to induce the Issuing Bank to issue
Letters of Credit, each Guarantor Party hereby unconditionally and
irrevocably guarantees the prompt payment and performance in full by
each Guaranteed Party when due and payable (whether at stated maturity,
by acceleration or otherwise) of all Guaranteed Obligations of such
Guaranteed Party. The obligations of each Guarantor Party hereunder are
those of a primary obligor, and not merely a surety, and are independent
of the Obligations of the Guaranteed Party. A separate action or actions
may be brought against a Guarantor Party whether or not an action is
brought against its respective Guaranteed Party, any other guarantor or
any other obligor in respect of the Guaranteed Obligations or whether
its respective Guaranteed Party, any other guarantor or any other
obligor in respect of the Guaranteed Obligations is joined in any such
action or actions. Each Guaranteed Party waives, to the extent permitted
by applicable law, the benefit of any statute of limitation affecting
its liability hereunder and agrees that its liability hereunder shall
not be subject to any right of set-off, counterclaim or recoupment (each
of which rights is hereby waived to the extent permitted by applicable
law).
(b) Each Guarantor Party guarantees that the obligations
guaranteed by it hereby will be paid and performed strictly in
accordance with the terms of this Agreement and the other Loan Documents
regardless of any law, regulation or order now or hereafter in effect in
any jurisdiction affecting any of such terms or the rights of the
Administrative Agent, the Issuing Bank or the Banks with respect
thereto. To the extent permitted by law, the liability of each Guarantor
Party under this guaranty shall be absolute and unconditional
irrespective of, and each Guarantor Party hereby irrevocably waives (to
the extent permitted by applicable law) any defenses it may now or
hereafter have in any way relating to, any and all of the following:
(i) any lack of genuineness, validity, legality or
enforceability against any respective Guaranteed Party or any
other Guarantor of this Agreement, any other Loan Document or
any document, agreement or instrument relating hereto or any
assignment or transfer of this Agreement or any other Loan
Document or any defense that any respective Guaranteed Party may
have with respect to its liability hereunder or thereunder;
AMENDED AND RESTATED CREDIT AGREEMENT - Page 102
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Guaranteed Obligations, or any waiver, indulgence, compromise,
renewal, extension, amendment, modification of, or addition,
consent, supplement to, or consent to departure from, or any
other action or inaction under or in respect of, this Agreement,
any other Loan Document or any document, instrument or agreement
relating to the Guaranteed Obligations or any other instrument
or agreement referred to herein or any assignment or transfer of
this Agreement;
(iii) any release or partial release of any other
Guarantor or other obligor in respect of the Guaranteed
Obligations;
(iv) any exchange, release or non-perfection of any
collateral for all or any of the Guaranteed Obligations, or any
release, or amendment or waiver of, or consent to departure
from, any guaranty or security, for any or all of the Guaranteed
Obligations;
(v) any furnishing of any additional security for
any of the Guaranteed Obligations;
(vi) the liquidation, bankruptcy, insolvency or
reorganization of any Guaranteed Party, any other Guarantor or
other obligor in respect of the Guaranteed Obligations or any
action taken with respect to this guaranty or otherwise by any
trustee or receiver, or by any court, in any such proceeding;
(vii) any modification or termination of any
intercreditor or subordination agreement pursuant to which the
claims of other creditors of any Guaranteed Party or any other
Guarantor are subordinated to those of the Banks, such Issuing
Banks or the Administrative Agent; or
(viii) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable
discharge of, any Guaranteed Party or any Guarantor Party.
(c) This guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time payment or performance of
the Guaranteed Obligations, or any part thereof, is, upon the
insolvency, bankruptcy or reorganization of any Guaranteed Party or
otherwise pursuant to applicable law, rescinded or reduced in amount or
must otherwise be restored or returned by any of the Administrative
Agent, the Issuing Bank or any Bank, all as though such payment or
performance had not been made.
(d) If an event permitting the acceleration of any of the
Guaranteed Obligations shall at any time have occurred and be continuing
and such acceleration shall at such time be prevented by reason of the
pendency against any Guaranteed Party of a case or proceeding under any
bankruptcy or insolvency law, each Guarantor Party agrees that, for
purposes of this guaranty and its obligations hereunder, the Guaranteed
Obligations shall be deemed to have been accelerated and such Guarantor
Party shall forthwith pay such Guaranteed Obligations (including
interest which but for the filing of
AMENDED AND RESTATED CREDIT AGREEMENT - Page 103
a petition in bankruptcy with respect to such Guaranteed Party would
accrue on such Obligations), and the other obligations hereunder,
forthwith upon demand.
(e) Each Guarantor Party hereby waives (i) promptness,
diligence, presentment, notice of nonperformance, protest or dishonor,
notice of acceptance and any and all other notices with respect to any
of the Guaranteed Obligations or this Agreement or any other Loan
Document, and (ii) to the extent permitted by applicable law, any right
to require that any Administrative Agent, the Issuing Bank or any Bank
protect, secure, perfect or insure any Lien in or any Lien on any
property subject thereto or exhaust any right or pursue any remedy or
take any action against any Guaranteed Party, any other guarantor or any
other Person or any collateral or security or to any balance of any
deposit accounts or credit on the books of the Administrative Agent, any
Issuing Bank or any Bank in favor of such Guaranteed Party.
(f) Each Guarantor Party expressly agrees to postpone, until
the Guaranteed Obligations under this Agreement are indefeasibly paid in
full in cash, the exercise of (i) any and all rights of subrogation,
reimbursement, contribution and indemnity (contractual, statutory or
otherwise), including any claim or right of subrogation under the
Bankruptcy Code or any successor statute, arising from the existence or
performance of this guaranty, (ii) any right to enforce any remedy which
the Administrative Agent, the Issuing Bank or the Banks now have or may
hereafter have against any Guaranteed Party, and (iii) to the extent
permitted by law, any benefit of, and any right to participate in, any
security now or hereafter held by the Administrative Agent, the Issuing
Bank or any Bank.
(g) If, in the exercise of any of its rights and remedies,
the Administrative Agent or any Bank shall forfeit any of its rights or
remedies, including its right to enter a deficiency judgment against any
Guaranteed Party or any other Person, whether because of any applicable
laws pertaining to "election of remedies" or the like, each Guarantor
Party hereby consents to such action and waives any claim based upon
such action (to the extent permitted by applicable law). Any election of
remedies which results in the denial or impairment of the right of the
Administrative Agent, the Issuing Bank or any Bank to seek a deficiency
judgment against any Guaranteed Party shall not impair any Guarantor
Party's obligation to pay the full amount of the Guaranteed Obligations.
(h) This guaranty is a continuing guaranty and shall (i)
remain in full force and effect until indefeasible payment in full in
cash of the Guaranteed Obligations and all other amounts payable under
this guaranty and the termination of the Commitments; (ii) be binding
upon each Guarantor Party, its successors and assigns; and (iii) inure,
together with the rights and remedies hereunder, to the benefit of the
Administrative Agent, the Issuing Bank, the Banks and their respective
successors, transferees and assigns. Without limiting the generality of
the foregoing clause (iii), any Bank may, subject to the terms of this
Agreement, assign or otherwise transfer its rights and obligations under
this Agreement to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect hereof granted
to such Bank pursuant to this guaranty or otherwise, all as provided in,
and to the extent set forth in, this Agreement.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 104
(i) Any obligations of any Guaranteed Party to its
respective Guarantor Party, now or hereafter existing, are hereby
subordinated to the Guaranteed Obligations. Such obligations of such
Guaranteed Party to its respective Guarantor Party, if the Majority
Banks so request, shall be enforced and amounts recovered shall be
received by such Guarantor Party as trustee for the Banks and the
proceeds thereof shall be paid over to the Banks on account of the
Guaranteed Obligations, but without reducing or affecting in any manner
the liability of such Guarantor Party under the provisions of this
guaranty.
(j) Upon failure of the Guaranteed Party to pay any
Guaranteed Obligation when and as the same shall become due and payable,
whether at maturity, by acceleration or otherwise, the respective
Guarantor Party hereby agrees immediately on demand by any of the Banks
or the Administrative Agent to pay or cause to be paid in accordance
with the terms hereof an amount equal to the full unpaid amount of the
Guaranteed Obligations then due and payable in Dollars.
(k) All payments by a Guarantor Party hereunder shall be
made free and clear of, and without deduction or withholding for or on
account of, any Taxes, unless such deduction or withholding is required
by law. If a Guarantor Party shall be required by law to make any such
deduction or withholding, then such Guarantor Party shall pay such
additional amounts as may be necessary in order that the net amount
received by the applicable Bank, the Issuing Bank or the Administrative
Agent, as the case may be, after all deductions and withholdings, shall
be equal to the full amount that such Person would have received, after
all deductions and withholdings, had its Guaranteed Party discharged its
obligations (including its tax gross-up obligations) pursuant to Section
4.01. Any amounts deducted or withheld by a Guarantor Party for or on
account of Taxes shall be paid over to the government or taxing
authority imposing such Taxes on a timely basis, and such Guarantor
Party shall provide the applicable Bank, the Issuing Bank or the
Administrative Agent, as the case may be, as soon as practicable with
such tax receipts or other official documentation (and such other
certificates, receipts and other documents as may reasonably be
requested by such Person) with respect to the payment of such Taxes as
may be available.
11.02 Guaranty Limited. The obligations of each Guarantor Party under
this Article XI and the joint and several obligations of the Borrower under
Section 2.01(c) shall be limited to the extent necessary to prevent the guaranty
provided under this Article XI and such joint and several obligations of the
Borrower under Section 2.01(c) or any payment pursuant to this Article XI or
such joint and several obligations being voided as a fraudulent transfer or
fraudulent conveyance under the U.S. Bankruptcy Code or under any applicable
state law governing fraudulent transfers or fraudulent conveyances.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 105
ARTICLE XII.
MISCELLANEOUS
12.01 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;
(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 12.07;
(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 12.01, 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;
AMENDED AND RESTATED CREDIT AGREEMENT - Page 106
(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
12.07; 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
(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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 107
Reallocation Letter (and related documentation) shall not be
deemed to be Loan Documents for purposes of this Section
12.01(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 12.01(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.
12.02 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, to the
address or facsimile number specified for notices on 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 Borrower acknowledges and agrees 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
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 the Borrower to give such notice and the
Administrative Agent, the Issuing Bank and the Banks shall not have any
liability to 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 108
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.
12.03 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.
12.04 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 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 12.04(a) and (b). All amounts under this
Section 12.04 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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 109
12.05 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 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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 110
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 12.05 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.
12.06 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 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.
12.07 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
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 Nexstar 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 Nexstar Loans and/or commitments (as applicable)
under the Nexstar Credit Agreement in accordance with the terms of the
Nexstar 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 Nexstar Loans and/or commitments (as applicable)
under the Nexstar 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 111
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, 12.04 and 12.05 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 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 112
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 12.01
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
12.09 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
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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 113
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 12.07 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.
12.08 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 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.
12.09 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 114
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 12.09 are in addition to the other rights and remedies
(including other rights of set-off) which such Bank may have.
12.10 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.
12.11 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.
12.12 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.
12.13 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.
12.14 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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 115
(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 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.
12.15 Effectiveness.
(a) This Agreement shall become effective on the date (the
"Effective Date") on which (i) 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 12.01, 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
AMENDED AND RESTATED CREDIT AGREEMENT - Page 116
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 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 Mission Credit Agreement on the Effective
Date, plus any accrued but unpaid interest with respect thereto.
Notwithstanding anything to the contrary contained in this Section
12.15(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 amounts and the making available by
the Administrative Agent of such amounts shall satisfy the condition
contained in this Section 12.15.
(c) This Agreement constitutes an amendment and restatement
of the Existing Mission Credit Agreement and as such supersedes the
Existing Mission Credit Agreement in its entirety; provided, however,
that in no event shall the Liens or Guaranty Agreements securing the
Existing Mission Credit Agreement or the obligations thereunder be
deemed affected hereby, it being the intent and agreement of the
Borrower and its Subsidiaries that the Guaranty Agreements and the Liens
on the Collateral granted to secure the obligations of the Borrower in
connection with the Existing Mission Credit Agreement and/or the
Guaranty Agreements, shall not be extinguished and shall remain valid,
binding and enforceable securing the obligations under the Existing
Mission Credit Agreement as amended and restated hereby.
12.16 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.
AMENDED AND RESTATED CREDIT AGREEMENT - Page 117
12.17 Additional Borrowers. If, on any date after the Effective Date,
the Borrower or the owner(s) of 100% of the Capital Stock of the Borrower
acquires any additional domestic Wholly-Owned Subsidiary, upon the written
request of the Borrower, such Subsidiary shall become a party to this Agreement,
as if it were a Borrower from the Effective Date, as of the date when the
Administrative Agent shall have received such legal opinions, certificates and
documents in form and substance satisfactory to the Administrative Agent, as the
Administrative Agent may reasonably request.
[Remainder of page is intentionally left blank; signature pages follow]
AMENDED AND RESTATED CREDIT AGREEMENT - Page 118
IN WITNESS WHEREOF, the parties hereto have caused this 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:
MISSION BROADCASTING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President
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Address for notices
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
Nexstar Broadcasting Group, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/66
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Principal
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BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC.
as Syndication Agent and as a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Executive Vice President
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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: ▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
Mail Code: TX1-492-14-12
City, State ZIP Code: ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Payment Instructions:
Account No.: 1292000883
Ref: Nexstar Finance LLC
ABA# ▇▇▇▇▇▇▇▇▇
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
Street Address: ▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
Mail Code: TX1-492-14-11
City, State ZIP Code: ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
An additionally copy to Bank of America, N.A.
Media and Telecom Portfolio Management
Street Address: ▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
Mail Code: TX1-492-64-01
City, State ZIP Code: ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Schedule 1.01(A)
ISSUING BANK:
Bank of America, N.A.
Trade Operations-Los Angeles #22621
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Mail Code: CA9-703-19-23
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇▇▇ ▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC.
Administrative and Funding Contact:
(for payments and Requests for Credit Extensions):
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Payment Instructions:
Send to: Citibank, N.A.
ABA #: 0210-00089
Account No.: 0925-3186
Favor of: Bear ▇▇▇▇▇▇▇ Securities Corp.
Further Credit to Account No. 096-00220-28
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Ref: XXX
Credit Contact:
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Schedule 1.01(A)
GENERAL ELECTRIC CAPITAL CORPORATION
Administrative and Funding Contact:
(for payments and Requests for Credit Extensions):
General Electric Capital Corporation
Commercial Finance
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇.▇▇▇
Payment Instructions:
Send to: Deutsche Bank/Bankers Trust
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA #: ▇▇▇-▇▇▇-▇▇▇
Account No.: ▇▇-▇▇▇-▇▇▇
Name: GECC-CAF Depository
Reference: CFN 6198-NEXSTAR3
Operations/Notices Contact:
General Electric Capital Corporation
Commercial Finance
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL, A DIVISION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇ BUSINESS
FINANCIAL SERVICES INC.
Credit Contact:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇.▇▇▇
Schedule 1.01(A)
Payment Instructions:
LaSalle Bank
Chicago, IL
ABA#: ▇▇▇▇▇▇▇▇▇
Account No.: 5800393182
Account Name: MLBFS Corp. Finance
Ref: Nexstar Broadcasting
Operations Contact:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇.▇▇▇
ROYAL BANK OF CANADA
Credit Contact:
Royal Bank of Canada
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Payment Instructions:
Chase Manhattan Bank N.A., New York
ABA No. ▇▇▇-▇▇▇-▇▇▇
For Account of: Royal Bank of Canada, New York
Account No: ▇▇▇-▇-▇▇▇▇▇▇
For further Credit to Account No. ▇▇▇-▇▇▇-▇
Ref: Nexstar Broadcasting Group
Schedule 1.01(A)
Operations:
Royal Bank of Canada
Loans Administration
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
TORONTO DOMINION (TEXAS), INC.
Credit Contact
Toronto Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Manager, Credit Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Payment Instructions:
Bank of America, N.A.
Swift Code (▇▇▇▇▇▇▇▇)
ABA#: ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇▇-▇-▇▇▇▇▇
Ref: Nexstar Finance, L.L.C. & Mission Broadcasting, Inc.
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Mgr., Credit Admin.
Operations Contact:
Toronto Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Manager, Credit Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Toronto-Dominion Bank
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule 1.01(A)
SCHEDULE 1.01(C)
DESCRIPTION OF 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 Nexstar 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 Nexstar
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 Nexstar Credit Agreement), exceeding
$80,000,000.
Schedule 1.01(C)
SCHEDULE 2.01
COMMITMENTS
REVOLVING TERM B
COMMITMENT REVOLVING FACILITY TERM B
PERCENTAGE COMMITMENT PERCENTAGE COMMITMENT
---------------------------------------------------------------------------------------------------------
LENDERS
Bank of America, N.A. 28.12500000% $ 8,437,500.00 89.72972973% $ 49,351,351.35
Bear ▇▇▇▇▇▇ Corporate Lending Inc. 28.12500000% $ 8,437,500.00 0.00000000% $ 0.00
General Electric Capital 12.50000000% $ 3,750,000.00 5.40540541% $ 2,972,972.97
Corporation
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a 12.50000000% $ 3,750,000.00 2.70270270% $ 1,486,486.49
division of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Business Financial Services Inc.
Royal Bank of Canada 18.▇▇▇▇▇▇▇▇% $ 5,625,000.00 0.▇▇▇▇▇▇▇▇% $ 0.00
Toronto Dominion (Texas),Inc. 0.00000000% $ 0.00 2.16216216% $ 1,189,189.19
-------------- ---------------- --------------- ----------------
Totals 100.000000% $ 30,000,000.00 100.000000% $ 55,000,000.00
============== ================ =============== ================
Schedule 2.01
SCHEDULE 6.09
MORTGAGED PROPERTIES
None.
Schedule 6.09
SCHEDULE 6.16
FCC LICENSES
WYOU(TV), SCRANTON, PENNSYLVANIA
FACILITY DESCRIPTION CALL SIGN EXP. DATE
TV Broadcast Station License WYOU 08/01/2007
(Channel 22, Scranton, Pennsylvania)
DTV STA WYOU-DT 05/08/2003
(Channel 13, Scranton, Pennsylvania)
TV Translator License W19AR 08/01/2007
TV Translator License W26AT 08/01/2007
TV Translator License W54AV 08/01/2007
TV Translator License W55AG 08/01/2007
TV Translator License W60AH 08/01/2007
TV Translator License W66AI 08/01/2007
Auxiliary Low Power BLQ-375 08/01/2007
TV Pickup KA-35173 08/01/2007
TV Pickup KA-35184 08/01/2007
TV Pickup KA-35185 08/01/2007
Auxiliary Remote Pickup KB-97161 08/01/2007
TV Studio Transmitter Link KGH-69 08/01/2007
TV Intercity Relay KGI-49 08/01/2007
TV Intercity Relay KHC-88 08/01/2007
TV Pickup KO-9753 08/01/2007
Auxiliary Remote Pickup KPH-450 08/01/2007
Auxiliary Remote Pickup KPJ-719 08/01/2007
Auxiliary Remote Pickup KQB-642 08/01/2007
Auxiliary Remote Pickup KQB-643 08/01/2007
TV Intercity Relay WFD-523 08/01/2007
TV Studio Transmitter Link WLL-212 08/01/2007
TV Intercity Relay WLO-276 08/01/2007
TV Intercity Relay WLO-277 08/01/2007
TV Studio Transmitter Link WPNF-884 08/01/2007
Schedule 6.16
WFXP(TV), ERIE, PENNSYLVANIA
FACILITY DESCRIPTION CALL SIGN EXP. DATE
TV Broadcast Station License WFXP 08/01/2007
(Channel 66, Erie, Pennsylvania)
DTV Construction Permit - Not yet granted
TV Studio Transmitter Link WLD-767 08/01/2007
KJTL(TV), WICHITA FALLS, TEXAS
FACILITY DESCRIPTION CALL SIGN EXP. DATE
TV Broadcast Station License KJTL 08/01/2006
(Channel 18, Wichita Falls, Texas)
DTV STA KJTL-DT 07/22/2003
(Channel 15, Wichita Falls, Texas)
LPTV Broadcast Station License KJBO-LP 08/01/2006
(Channel 35, Wichita Falls, Texas)
TV Translator License K47DK 06/01/2006
TV Translator License K53DS 06/01/2006
TV Studio Transmitter Link WLD-942 08/01/2006
TV Studio Transmitter Link WLJ-748 08/01/2006
KODE-TV, JOPLIN, MISSOURI
FACILITY DESCRIPTION CALL SIGN EXP. DATE
TV Broadcast Station License KODE-TV 02/01/2006
(Channel 12, Joplin, Missouri)
DTV STA (Request Accepted for Filing) KODE-DT
(Channel 43, Joplin, Missouri)
TV Pickup KC62805 02/01/2006
TV Pickup KM3441 02/01/2006
Remote Pickup KPH932 02/01/2006
TV Pickup KR7926 02/01/2006
Remote Pickup KTK819 02/01/2006
Weather Radar Station WPFW393 10/25/2004
Business Radio WNEQ599 05/29/2012
Business Radio WNEH385 04/28/2012
Business Radio WNEH386 04/28/2012
Schedule 6.16
SCHEDULE 6.17
SUBSIDIARIES
None.
Schedule 6.17
SCHEDULE 6.21
NETWORK AFFILIATION AGREEMENTS
NBC END DATE
--- --------
KRBC/1/ 12/10
KACB/2/ 12/10
CBS END DATE
--- --------
WYOU 03/07
FOX END DATE
--- --------
WFXP 06/06
KJTL 06/06
ABC END DATE
--- --------
KODE 12/07
UPN END DATE
--- --------
▇▇▇▇-▇▇ ▇▇/▇▇
----------
/1/ Owned and Operated by TVL Broadcasting of Abilene, Inc. Mission and TVL
Broadcasting of Abilene, Inc. have a local marketing agreement for this station.
/2/ Owned and Operated by TVL Broadcasting of Abilene, Inc. Mission and TVL
Broadcasting of Abilene, Inc. have a local marketing agreement for this station.
Schedule 6.21
SCHEDULE 8.05(a)
EXISTING INDEBTEDNESS
None.
Schedule 8.05(a)
SCHEDULE 8.11(e)
INVESTMENTS
See Schedule 6.17.
Schedule 8.10(e)
EXHIBIT A
FORM OF 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): Mission Broadcasting, Inc.
4. Administrative Agent: ______________________,as the administrative agent
under the Credit Agreement
A-1
Assignment and Assumption
5. Credit Agreement: The Amended and Restated Credit
Agreement, dated as of February 13, 2003 among Mission
Broadcasting, Inc., the Banks 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/3/
_____________/4/ $_______________ $_______________ _______________%
_____________ $_______________ $_______________ _______________%
_____________ $_______________ $_______________ _______________%
[7. Trade Date: __________________]/5/
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:
----------
/3/ Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Bank thereunder.
/4/ 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.).
/5/ 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/6/ 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/
MISSION BROADCASTING, INC.
By:
---------------------------------------
Title:
----------
/6/ To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
/7/ To be addded only if the consent of the Borrower and/or other parties (e.g.
Issuing Bank) 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 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 Amended and Restated Credit Agreement dated as of the date hereof (the
"Credit Agreement") among Mission Broadcasting, Inc., (the "Borrower"), 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 ▇▇▇▇▇▇▇ 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 ____________________________
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.
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.
_____________________________________
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 C
FORM OF COMPLIANCE CERTIFICATE
Date: _________, ____
Re: 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 Mission
Broadcasting, Inc. (the "Borrower"), 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 ▇▇▇▇▇▇▇ Corporate Lending,
Inc., as Syndication Agent, and Royal Bank of Canada, General
Electric Capital Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial Services, Inc., as
Co-Documentation Agents.
Bank of America, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇
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
Borrower.
(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
Borrower and the other Subsidiaries of the Borrower 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].
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 Borrower have
taken, are taking, or propose to take with respect to each such condition or
event.
The foregoing certifications, together with 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 has 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.
MISSION BROADCASTING, INC.
By:
-------------------------------------
Title:
2
EXHIBIT D-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 Party"), for the benefit of
the Banks as that term is defined in the 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 Mission Broadcasting,
Inc. (the "Borrower"), 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 ▇▇▇▇▇▇▇ Corporate Lending, Inc., as
Syndication Agent, and Royal Bank of Canada, General Electric Capital
Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business
Financial Services, Inc., as Co-Documentation Agents. Unless otherwise defined
herein, terms used herein shall have the meanings ascribed to them in the Credit
Agreement.
WITNESSETH:
The Borrower, the Administrative Agent and the Banks party thereto have
entered into the 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, the Credit
Party 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 Party pursuant to the Loan
Documents shall include the Obligations as that term is defined in the Credit
Agreement. The Credit Party 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 Party agrees 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.
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2
IN WITNESS WHEREOF, this Agreement is executed as of the date first set
forth above.
CREDIT PARTY:
MISSION BROADCASTING, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
3
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
Mission Entities in favor of Bank of America, N.A., as Collateral Agent
2. Pledge and Security Agreement, dated as of January 12, 2001 made by each
of the Mission Entities in favor of Bank of America, N.A., as Collateral Agent.
4
EXHIBIT 2
5
EXHIBIT D-2
FORM OF CONFIRMATION AGREEMENT FOR THE PLEDGE AGREEMENT
THIS CONFIRMATION AGREEMENT (this "Agreement") is dated as of February 13,
2003 by the undersigned (the "Credit Party"), for the benefit of the Banks as
that term is defined in the 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 Mission Broadcasting, Inc. (the
"Borrower"), 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 ▇▇▇▇▇▇▇ Corporate Lending, Inc., as Syndication
Agent, and Royal Bank of Canada, General Electric Capital Corporation, ▇▇▇▇▇▇▇
▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial Services, Inc., as
Co-Documentation Agents. Unless otherwise defined herein, terms used herein
shall have the meanings ascribed to them in the Credit Agreement.
WITNESSETH:
The Borrower, the Administrative Agent and the Banks party thereto have
entered into a 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, the Credit
Party 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 Party pursuant to the Loan
Documents shall include the Obligations as that term is defined in the Credit
Agreement. The Credit Party 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 Party agrees 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.
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2
IN WITNESS WHEREOF, this Agreement is executed as of the date first set
forth above.
▇▇▇▇▇ ▇. ▇▇▇▇▇
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
3
EXHIBIT 1
The following are the Loan Documents, as amended and restated or otherwise
modified from time to time:
1. Pledge Agreement, dated as of January 12, 2001, made by ▇▇▇▇▇ ▇. ▇▇▇▇▇ in
favor of Bank of America, N.A., as Collateral Agent
4
EXHIBIT 2
5
EXHIBIT D-3
FORM OF CONFIRMATION AGREEMENT FOR THE GUARANTY AGREEMENTS
THIS CONFIRMATION AGREEMENT (this "Agreement") is dated as of February 13,
2003 by the undersigned (the "Credit Party"), for the benefit of the Banks as
that term is defined in the 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 Mission Broadcasting, Inc. (the
"Borrower"), 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 ▇▇▇▇▇▇▇ Corporate Lending, Inc., as Syndication
Agent, and Royal Bank of Canada, General Electric Capital Corporation, ▇▇▇▇▇▇▇
▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial Services, Inc., as
Co-Documentation Agents. Unless otherwise defined herein, terms used herein
shall have the meanings ascribed to them in the Credit Agreement.
WITNESSETH:
The Borrower, the Administrative Agent and the Banks party thereto have
entered into a 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, the Credit
Party 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 Party pursuant to the Loan
Documents shall include the Obligations as that term is defined in the Credit
Agreement. The Credit Party 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 Party agrees 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.
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2
IN WITNESS WHEREOF, this Agreement is executed as of the date first set
forth above.
CREDIT PARTY:
MISSION BROADCASTING, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
3
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 Mission
Entities
4
EXHIBIT 2
5
EXHIBIT E-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.
▇▇▇▇▇ 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:
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇▇▇ ▇▇▇▇▇ Management
as Investment Advisor
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
▇▇▇▇▇▇▇ & 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:
--------------------------------------
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ CORPORATE
LENDING INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ROYAL BANK OF CANADA
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL, a division of
▇▇▇▇▇▇▇ ▇▇▇▇▇ 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
▇▇▇▇▇ ▇▇▇▇▇ Senior Income Trust -0- -0- $ 859,575.89
ELC (Cayman) Ltd. ▇▇▇▇-▇ -▇- -▇- $ 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
▇▇▇▇▇▇▇ & Co -0- -0- $ 1,719,151.78
▇▇▇▇▇▇ 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
▇▇▇▇▇ CLO Ltd. ▇▇▇▇-▇ -▇- -▇- $ 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 ▇▇▇▇▇▇▇ Corporate Lending Inc. $ 14,062,500.00 -0-
General Electric Capital Corporation $ 6,250,000.00 $ 7,027,027.03
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of $ 6,250,000.00 $ 3,513,513.51
▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 E-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 ▇▇▇▇▇▇▇ CORPORATE
LENDING INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
ROYAL BANK OF CANADA
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL, a
division of ▇▇▇▇▇▇▇ ▇▇▇▇▇
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 ▇▇▇▇▇▇▇ Corporate Lending Inc. $ 8,437,500.00 -0-
General Electric Capital Corporation $ 3,750,000.00 $ 2,972,972.97
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of $ 3,750,000.00 $ 1,486,486.49
▇▇▇▇▇▇▇ ▇▇▇▇▇ 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
FORM OF INFORMATION CERTIFICATE
Reference is made to the 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 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 Security Agreement referred to therein, as applicable.
The undersigned (the "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 the Company, as such name appears in its currently
effective organizational documents as filed with the appropriate authority
of the jurisdiction of the Company's organization, and the charter or
similar unique identification number, if any, assigned to the Company by
the appropriate authority of the jurisdiction of the Company's
organization.
(b) Schedule 1 also sets forth each other name the Company has had in the
past five years, together with the date of the relevant change.
(c) Except as set forth in Schedule 1, the 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 the 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 the
Company.
2. Current Locations.
(a) The chief executive office of the Company is located at the address
stated on Schedule 2, Section (a).
(b) Schedule 2, Section (b) states all locations where the 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 "*").
(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,
Exhibit F
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 the Company, Schedule 2, Section (d) states
all the places of business of the 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 the 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 the 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 the Company, or other
equity interest of the 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 the 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 the 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 agreement, and the name and street address of the
commodity intermediary maintaining the account.
Exhibit F
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 the 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 the 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 the 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 the 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.
(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
Exhibit F
registered owner, the nature of the 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 the 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. Section1051, 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 the Company has any interest.
14. Unusual Transactions. Except as described on Schedule 14, during the
past year, all Accounts have been originated by the Company and all Inventory
has been acquired by the 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 the 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 which any Company is a party and the
expiration date thereof; and (iii) the FCC Licenses of the Company and the
expiration date thereof.
Exhibit F
IN WITNESS WHEREOF, the undersigned has duly executed this certificate on
February ___, 2003.
MISSION BROADCASTING, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
Exhibit F
EXHIBIT G
FORM OF NOTICE OF BORROWING
Date:_________________, _____
Bank of America, N.A.,
as Administrative Agent
Corporate Loan Services
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ___▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:_________________
Telecopier:________________
Re: 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
Mission Broadcasting, Inc. (the "Borrower"), 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
▇▇▇▇▇▇▇ Corporate Lending, Inc., as Syndication Agent, and
Royal Bank of Canada, General Electric Capital Corporation,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business
Financial Services, Inc., as Co-Documentation Agents. Unless
otherwise defined herein, terms used herein shall have the
meanings ascribed to them in the Credit Agreement.
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.
Exhibit G
[(5) The duration of the Interest Period for the Eurodollar Loans
included in the 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.
MISSION BROADCASTING, INC.
By:
-----------------------------
Title:
----------
/9/ To be included for a proposed Borrowing of Eurodollar Loans.
Exhibit G
EXHIBIT H
FORM OF NOTICE OF CONVERSION/CONTINUATION
Date: _______, ____
Bank of America, N.A.,
as Administrative Agent
Corporate Loan Services
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ____ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:__________________
Telecopier:_________________
Re: 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
Mission Broadcasting, Inc. (the "Borrower"), 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
▇▇▇▇▇▇▇ Corporate Lending, Inc., as Syndication Agent, and
Royal Bank of Canada, General Electric Capital Corporation,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business
Financial Services, Inc., as Co-Documentation Agents. Unless
otherwise defined herein, terms used herein shall have the
meanings ascribed to them in the Credit Agreement.
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 H
[(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/
MISSION BROADCASTING, INC.
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 H
EXHIBIT I
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 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 I
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
MISSION BROADCASTING, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
Exhibit I
REVOLVING LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL OR OUTSTANDING
END OF INTEREST PRINCIPAL
TYPE OF AMOUNT OF INTEREST PAID THIS BALANCE NOTATION
DATE LOAN MADE LOAN MADE PERIOD DATE THIS DATE MADE BY
------------------------------------------------------------------------------------------------
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
Exhibit I
EXHIBIT J
FORM OF SOLVENCY CERTIFICATE
____________, 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 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 Mission Broadcasting,
Inc. (the "Borrower"), 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 ▇▇▇▇▇▇▇ Corporate Lending, Inc., as
Syndication Agent, and Royal Bank of Canada, General Electric Capital
Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business
Financial Services, Inc., as Co-Documentation Agents. Unless otherwise defined
herein, terms used herein shall have the meanings ascribed to them in the Credit
Agreement. 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 in ____________ capacity as
____________________ of ______________, and not in his or her individual
capacity, hereby certifies on behalf of ________________ 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 J
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
Exhibit J
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]
Exhibit J
IN WITNESS WHEREOF, the undersigned have caused this Certificate to be
executed as of the date first above.
MISSION BROADCASTING, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
Exhibit J
EXHIBIT K
FORM OF SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY (this "Guaranty"), dated as of _____________, is
made by each of the undersigned (each a "Guarantor" and, together with the other
signatories hereto and any other entities from time to time parties hereto
pursuant to Section 22 hereof, collectively, the "Guarantors"), in favor of the
Guaranteed Parties (as hereinafter defined).
RECITALS:
A. Mission Broadcasting, Inc., a Delaware corporation (the "Borrower") is
a party to that certain Amended and Restated Credit Agreement, dated as of
February 13, 2003 (as the same may be amended, supplemented or otherwise
modified from time to time, including, without limitation, all extensions,
renewals, restatements, rearrangements and refundings thereof, the "Credit
Agreement"), among the Borrower, 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 in such
capacity in such capacity, the "Administrative Agent"), Bear ▇▇▇▇▇▇▇ Corporate
Lending, Inc. as Syndication Agent, and Royal Bank of Canada, General Electric
Capital Corporation and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, as Documentation Agents, pursuant
to which the Banks have severally agreed to make loans to the Borrower, and Bank
of America, N.A. (the "Issuing Bank") has agreed to issue letters of credit for
the account of, the Borrower, upon the terms and conditions set forth therein.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in such Credit Agreement.
B. The Borrower may also from time to time be party to one or more
Interest Rate Protection Agreements with any Bank or an Affiliate of any Bank
(even if any such Bank ceases to be a Bank under the Credit Agreement for any
reason), and their successors and assigns, if any (collectively, the "Interest
Rate Guaranteed Parties"), providing for protection against fluctuations in
interest rates.
C. As a condition precedent to the extensions of credit under the Credit
Agreement and the Interest Rate Protection Agreements, the Banks have required
that the Guarantors execute and deliver this Guaranty in favor of the Banks, the
Issuing Bank, the Administrative Agent, the Collateral Agent and the Interest
Rate Guaranteed Parties (collectively, the "Guaranteed Parties").
D. Each Guarantor will derive substantial direct and indirect benefit
from the extensions of credit under the Credit Agreement and the financial
accommodations under the Interest Rate Protection Agreements.
E. Accordingly, each Guarantor desires to execute this Guaranty in order
to satisfy the condition described above in Recital C.
In consideration of the foregoing and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, each
Guarantor hereby jointly and
severally agrees as follows:
1. Guaranty.
(a) Each Guarantor unconditionally and irrevocably guarantees the
prompt payment when due, whether at stated maturity, upon acceleration or
otherwise, and at all times thereafter, of all the unpaid principal of and
interest on the Loans (including, without limitation, interest accruing after
the maturity of the Loans and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Credit Party, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) and all other
obligations and liabilities of the Borrower to the Administrative Agent, any
Bank or the Issuing 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, that
may arise under, out of, or in connection with the Credit Agreement, any other
Loan Document, any Letter of Credit, any Interest Rate Protection Agreement
entered into with any Bank (or any Affiliate of any Bank), 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 or to any Bank
that are required to be paid by the Borrower pursuant to any Loan Document) or
otherwise (collectively, all of the foregoing are referred to herein as the
"Guaranteed Obligations").
(b) In addition to the Guaranteed Obligations, each Guarantor further
agrees to pay any and all reasonable costs and expenses (including reasonable
fees and disbursements of counsel) incurred by any Guaranteed Party in enforcing
any rights under this Guaranty together with any accrued but unpaid interest on
the Guaranteed Obligations (including, without limitation, interest which, but
for the filing of a petition of bankruptcy with respect to the Borrower, would
have accrued on the Guaranteed Obligations), which agreement shall survive
termination of this Guaranty.
(c) Each Guarantor understands and confirms that the Guaranteed
Parties may enforce this Guaranty up to the full amount of the Guaranteed
Obligations against any Guarantor without proceeding against the Borrower or any
other Person, any security for the Guaranteed Obligations, or under any other
guaranty covering all or a portion of the Guaranteed Obligations.
(d) Notwithstanding anything in this Guaranty to the contrary, the
obligations of each Guarantor under this Guaranty shall be limited to a maximum
aggregate amount equal to the largest amount that would not render such
Guarantor's obligations hereunder subject to avoidance as a fraudulent transfer
or fraudulent conveyance under Section 548 of Title 11 of the United States Code
or any applicable provisions of comparable state law (collectively, the
"Fraudulent Transfer Laws"), in each case after giving effect to all other
liabilities of such Guarantor, contingent or otherwise, that are relevant under
the Fraudulent Transfer Laws (specifically excluding, however, any liabilities
of such Guarantor in respect of intercompany Indebtedness to the Borrower or any
Subsidiary or Affiliate of the Borrower to the extent that such Indebtedness
would be discharged in an amount equal to the amount paid by such Guarantor
L-2
hereunder) and after giving effect as assets to the value (as determined under
the applicable provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, reimbursement or contribution of such Guarantor pursuant to (i)
applicable law, or (ii) any agreement providing for rights of subrogation,
reimbursement or contribution in favor of such Guarantor, or for an equitable
allocation among such Guarantor, the Borrower and/or any other Person of
obligations arising under guaranties by such Persons.
2. No Release. Each Guarantor agrees that the Guaranteed Obligations may
be extended, renewed or otherwise modified, in whole or in part, without any
notice to or further assent from it, and that such Guarantor will remain bound
by this Guaranty notwithstanding any extension, renewal or other modification of
any Guaranteed Obligation.
3. Waiver of Notices. Each Guarantor waives notice of the acceptance of
this Guaranty, presentment, protest, notice, dishonor or default, demand for
payment and any other notices to which Guarantor might otherwise be entitled.
4. Obligations Absolute. The obligations of each Guarantor under this
Guaranty are those of a primary obligor, and not merely a surety, are
independent of the obligations of the Guaranteed Parties, and shall not be
affected by any:
(a) change in the manner, place or terms of payment of (including the
currency thereof), and/or change or extension of the time of payment of, or
renewal or modification of, any of the Guaranteed Obligations, any security or
guarantee therefor, or any liability incurred directly or indirectly in respect
thereof; provided, that this Guaranty shall apply to the Guaranteed Obligations
as so changed, extended, renewed or modified;
(b) sale, exchange, release, surrender, realization upon, failure to
perfect any security interest in, or other alteration in any manner and in any
order of any property by whomsoever at any time pledged or mortgaged to secure,
or howsoever securing, the Guaranteed Obligations or any liabilities (including
any of those hereunder) incurred directly or indirectly in respect thereof or
hereof and for offset thereagainst;
(c) settlement or compromise of any of the Guaranteed Obligations,
any security or guarantee therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, or
subordination of the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower;
(d) actions or failures to act in any manner referred to in this
Guaranty which may deprive such Guarantor of its right to subrogation against
the Borrower to recover full indemnity for any payments made pursuant to this
Guaranty;
(e) failure of any Guaranteed Party to assert any claim or demand or
to enforce any right or remedy against the Borrower or any guarantor or any
successor thereto under the provisions of the Credit Agreement, any other Loan
Document or any other agreement or otherwise; or
(f) rescission, waiver, extension, renewal, amendment or modification
of any
L-3
of the terms or provisions of the Credit Agreement, any other Loan Document, any
guarantee or any instrument or agreement executed pursuant thereto.
5. Guaranty of Payment and Performance. This Guaranty constitutes a
guarantee of payment and performance when due and not of collection and each
Guarantor waives any right to require that any resort be had by any Guaranteed
Party to the Borrower, any other guarantor, any property by whomsoever at any
time pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any balance of any deposit account or credit on the books of any
Guaranteed Party in favor of the Borrower or any other Person.
6. Unenforceability of Obligations. The obligations of each Guarantor
under this Guaranty shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than by payment and performance
in full of the Guaranteed Obligations and termination of all Commitments under
the Credit Agreement, and except as limited in Section 1(d) of this Guaranty)
and shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of any of the Guaranteed Obligations, discharge of the Borrower
from any of the Guaranteed Obligations in a bankruptcy or similar proceeding or
otherwise (other than by payment and performance in full of the Guaranteed
Obligations and termination of all Commitments under the Credit Agreement, and
except as limited in Section 1(d) of this Guaranty).
7. Set-Off. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Creditor Law) and not by way of limitation of any such rights, upon
the occurrence of any Event of Default, each Guaranteed Party is hereby
authorized at any time or from time to time, without notice to any Guarantor or
to any other Person, any such notice being expressly waived, to the extent
permitted by applicable law, to set off and to appropriate and apply any and all
deposits (general or special) and any other indebtedness at any time held or
owing by such Guaranteed Party to or for the credit or the account of any
Guarantor, against and on account of the obligations and liabilities of such
Guarantor to such Guaranteed Party under this Guaranty, irrespective of whether
or not such Guaranteed Party shall have made any demand hereunder and although
said obligations, liabilities, deposits or claims, or any of them, shall be
contingent or unmatured.
8. Reinstatement. This Guaranty shall continue to be effective and, if
cancelled or otherwise terminated shall be reinstated, if at any time any
payment, or any part thereof, of principal of, interest on or any other amount
with respect to any Guaranteed Obligation is rescinded or must otherwise be
restored by any Guaranteed Party or any other Person upon the bankruptcy or
reorganization of the Borrower or any other Person or otherwise. If claim is
ever made upon any Guaranteed Party for repayment or recovery of any amount or
amounts received in payment or on account of any of the Guaranteed Obligations
and any of the Guaranteed Parties repays all or part of said amount by reason of
(a) any judgment, decree or order of any court or administrative body having
jurisdiction over such Guaranteed Party or any of its property, or (b) any
settlement or compromise of any such claim effected by such Guaranteed Party
with any such claimant (including the Borrower), then and in such event each
Guarantor jointly and severally agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon it, notwithstanding any
revocation, termination or cancellation hereof or of the
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Credit Agreement, any other Loan Document or any other instrument evidencing any
liability of the Borrower, and such Guarantor shall be and remain liable to such
Guaranteed Party hereunder for the amount so repaid or recovered to the same
extent as if such amount had never originally been received by any such
Guaranteed Party.
9. No Subrogation. Notwithstanding any payment or payments by any
Guarantor hereunder or any set-off or application of funds of any Guarantor by
any Guaranteed Party, no Guarantor shall be entitled to be subrogated to any of
the rights of any Guaranteed Party against the Borrower or guarantee or right of
offset held by any Guaranteed Party of the payment of the Guaranteed
Obligations, nor shall any Guarantor seek to be entitled to seek any
reimbursement or contribution from the Borrower or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing to
the Guaranteed Parties by the Borrower on account of the Guaranteed Obligations
are indefeasibly paid in full in cash. If any amount shall be paid to any
Guarantor on account of the subrogation rights at any time when all of the
Guaranteed Obligations of the Borrower have not been indefeasibly paid in full
in cash, such amount shall be held by such Guarantor in trust for the Guaranteed
Parties, segregated from other funds of such Guarantor, and shall, immediately
upon receipt by such Guarantor, be turned over to the Administrative Agent in
the exact form received by such Guarantor (duly endorsed by such Guarantor to
the Administrative Agent, if required), to be applied against the Guaranteed
Obligations of the Borrower, whether matured or unmatured, in such order as the
Administrative Agent may determine.
10. Amendment and Waiver; Cumulative Remedies; Severability. No amendment,
modification, termination or waiver of any provision of this Guaranty, or
consent to any departure by any Guarantor herefrom, shall be effective without
the written concurrence of the Majority Banks under the Credit Agreement or as
otherwise provided in the Credit Agreement including, without limitation,
Section 11.01(a) thereof. No failure by the Guaranteed Parties to exercise, and
no delay in exercising, any right, remedy or power hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy or
power hereunder preclude any other or further exercise thereof or the exercise
of any other right. No waiver of any breach or default under this Guaranty shall
be deemed a waiver of any other breach or default hereunder. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law or in
equity. The unenforceability or invalidity of any provision of this Guaranty
shall not affect the enforceability or validity of any other provision herein.
11. Notices. 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, (a) if to any Guarantors, to the address or facsimile number
specified for notices on the applicable signature page hereof; (b) if to any
Guaranteed Party, to the notice address specified for such party on Schedule
1.01(A) to the Credit Agreement; or (c) to such other address as shall be
designated by any party in a written notice to the other parties and the
Administrative Agent.
12. Stay of Acceleration. In the event that acceleration of the time for
payment of any of the Guaranteed Obligations is stayed, upon the insolvency,
bankruptcy or reorganization of the Borrower or any other Person, or otherwise,
all such amounts shall nonetheless be payable by the
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Guarantor immediately upon demand by the Guaranteed Parties.
13. Representations and Warranties. In order to induce the Banks to make
Loans and the Issuing Bank to issue Letters of Credit pursuant to the Credit
Agreement, and in order to induce the Interest Rate Guaranteed Parties to
execute, deliver and perform the Interest Rate Protection Agreements, each
Guarantor represents, warrants and covenants that:
(a) Such Guarantor (i) is a duly organized and validly existing
corporation, partnership or limited liability company, as the case may be, and
is in good standing under the laws of the jurisdiction of its organization, (ii)
has the power and authority and all governmental licenses, authorizations,
consents and approvals to own or hold under lease its property or assets,
conduct its business and execute, deliver, and perform its obligations under,
this Guaranty and the other Loan Documents to which it is a party, (iii) 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 to so qualify would not reasonably be expected
to have a Material Adverse Effect and (iv) is in compliance with all
Requirements of Law, except to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
(b) This Guaranty and each other Loan Document to which such
Guarantor is a party constitutes the legal, valid and binding obligation of such
Guarantor, enforceable against such Guarantor in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, or
other similar laws affecting creditors' rights generally and by equitable
principles of general application.
(c) The execution, delivery and performance by such Guarantor of this
Guaranty and each other Loan Document to which such Guarantor is a party have
been duly authorized by all necessary corporate, limited liability company or
partnership action, as the case may be, and do not and will not (i) contravene
any terms of the Charter Documents of such Guarantor, (ii) conflict with or
result in any breach or contravention of, or the creation of any Lien (except
under the Security Documents) under, any document evidencing any material
Contractual Obligation to which such Guarantor is a party of any order,
injunction, writ or decree of any Governmental Authority to which such Guarantor
or its property is subject, or (iii) violate any Requirement of Law.
(d) No approval, consent, exemption, authorization, or other action
by, or notice to, or filing with or approvals of any Governmental Authority is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against (except as may be required by the Communications Act
of 1933, as amended, and the rules, regulations and policies of the FCC), such
Guarantor of this Guaranty and each other Loan Document to which such Guarantor
is a party.
(e) There are no actions, suits or proceedings, claims or disputes
pending, or to the best knowledge of such Guarantor, threatened at law, in
equity, or in arbitration before any Governmental Authority, against such
Guarantor or any of its properties or assets which
L-6
(i) purport to affect or pertain to this Guaranty or any other Loan Document to
which such Guarantor is a party, or any of the transactions contemplated hereby,
or (ii) would 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 Guaranty, or directing
that any other transaction provided for herein not be consummated as herein
provided.
14. Credit Agreement Covenants. Each Guarantor covenants and agrees that
on and after the date hereof and until the Aggregate Commitment and all Interest
Rate Protection Agreements have been terminated and no Loan or Letter of Credit
remains outstanding (other than Letters of Credit, together with all fees that
have accrued and will accrue thereon through the stated termination date of such
Letters of Credit, which have been supported in a manner satisfactory to the
Issuing Bank in its sole and absolute discretion) and all Guaranteed Obligations
have been paid in full (other than indemnities described in Section 11.05 of the
Credit Agreement and analogous provisions in the Security Documents which are
not then due and payable), such Guarantor shall take, or will refrain from
taking, as the case may be, all actions that are necessary to be taken or not
taken so that no violation of any provision, covenant or agreement contained in
Article VII or VIII of the Credit Agreement, and so that no Default or Event of
Default is caused by the actions of such Guarantor or any of its Subsidiaries.
15. Successors and Assigns. This Guaranty shall be binding upon each
Guarantor and its successors and assigns and shall inure to the benefit of the
respective successors and assigns of the Guaranteed Parties and, in the event of
any transfer or assignment of rights by any Guaranteed Party, the rights and
privileges herein conferred upon that Guaranteed Party shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof, provided, however, that no Guarantor may assign any of
its rights or obligations hereunder without the consent of the Banks and any
such assignment without such consent shall be void.
16. Governing, Law. THIS GUARANTY SHALL BE DEEMED TO BE MADE UNDER, SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
17. Jurisdiction and Service. All judicial proceedings brought against any
Guarantor with respect to this Guaranty may be brought in any state or federal
court of competent jurisdiction in the State of New York and by execution and
delivery of this Guaranty each Guarantor accepts for itself and in connection
with its properties, generally and unconditionally, the nonexclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Guaranty. Each Guarantor
irrevocably and unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Guaranty in any state or federal court in the State of New York. Each
Guarantor irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court and irrevocably consents to service of process in the manner
provided for notices in Section 11.
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Nothing in this Guaranty will affect the right of any Guaranteed Party to serve
process in any other manner permitted by law. If any agent appointed by any
Guarantor refuses to accept service, each Guarantor agrees that service upon it
by mail shall constitute sufficient notice. Nothing herein shall affect the
right of any Guaranteed Party to bring proceedings against any Guarantor in the
courts of any other jurisdiction.
18. Waiver of Jury Trial. EACH GUARANTOR HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS GUARANTY, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT.
Each Guarantor (a) certifies that no representative, agent or attorney of any
other party to the Loan Documents has represented, expressly or otherwise, that
such other party would not, in the event of litigation, seek to enforce the
foregoing waiver and (b) acknowledges that the Banks and the other parties to
the Loan Documents have been induced to enter into the Loan Documents by, among
other things, the foregoing waiver and certification.
19. Release. This Guaranty is a continuing and irrevocable guaranty of all
Guaranteed Obligations now or hereafter existing and may be released only in
accordance with Section 11.01 of the Credit Agreement.
20. Counterparts. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
originals executed by all the parties hereto shall be delivered to the
Administrative Agent, and a copy thereof shall be furnished to the Borrower or
any Guarantor upon request therefor.
21. Security Documents. The obligations of each Guarantor are secured by
certain of the Security Documents. Each Guarantor shall comply with all terms
and conditions of the Security Documents to which such Guarantor is a party, as
the same may be amended, restated, supplemented or otherwise modified from time
to time.
22. Additional Guarantors. It is understood and agreed that any Person may
become a party hereto by executing a Guaranty Supplement in the form of Annex A
attached hereto and delivering the same to the Administrative Agent. Any such
Person shall thereafter be deemed a "Guarantor" for all purposes under this
Guaranty.
[Remainder of page intentionally left blank; signature page follows]
L-8
IN WITNESS WHEREOF, each of the undersigned has caused this Subsidiary
Guaranty to be duly executed as of the day and year first above written.
NAME OF MISSION SUBSIDIARIES
By:
-----------------------------
Title: of each of the
---------------------------
above-named entities
Address of all Guarantors:
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
[Subsidiary Guaranty Signature Page]
Annex A
GUARANTY SUPPLEMENT
THIS GUARANTY SUPPLEMENT is made by the undersigned as of
______________________.
RECITALS:
A. Mission Broadcasting, Inc., a Delaware corporation (the "Borrower") is
a party to that certain Amended and Restated Credit Agreement, dated as of
February 13, 2003 (as the same may be amended, supplemented or otherwise
modified from time to time, including, without limitation, all extensions,
renewals, restatements, rearrangements and refundings thereof, the "Credit
Agreement"), among the Borrower, 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 in such
capacity, the "Administrative Agent"), Bear ▇▇▇▇▇▇▇ Corporate Lending, Inc. as
Syndication Agent, and Royal Bank of Canada, General Electric Capital
Corporation and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, as Documentation Agents, pursuant to
which the Banks have severally agreed to make loans to the Borrower, and Bank of
America, N.A. (the "Issuing Bank") has agreed to issue letters of credit for the
account of, the Borrower, upon the terms and conditions set forth therein.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in such Credit Agreement.
B. The Borrower may also from time to time be party to one or more
Interest Rate Protection Agreements with any Bank or an Affiliate of any Bank
(even if any such Bank ceases to be a Bank under the Credit Agreement for any
reason), and their successors and assigns, if any (collectively, the "Interest
Rate Guaranteed Parties"), providing for protection against fluctuations in
interest rates.
C. In connection with the Credit Agreement and the Interest Rate
Protection Agreements, certain Subsidiaries of the Borrower entered into a
Subsidiary Guaranty Agreement, dated as of even date with the Credit Agreement
(as in effect on the date hereof, the "Guaranty").
D. Pursuant to Section 7.16 of the Credit Agreement, the undersigned is
required to become a party to the Guaranty.
E. The undersigned desires to execute and deliver this Guaranty
Supplement in order to become a party to the Guaranty.
NOW, THEREFORE, IT IS AGREED:
1. Guaranty. By executing and delivering this Guaranty Supplement, the
undersigned becomes a party to the Guaranty as a "Guarantor" thereunder, and
expressly and jointly and severally assumes all obligations and liabilities of a
"Guarantor" thereunder. The undersigned makes each of the representations and
warranties contained in Section 13 of the Guaranty on the date hereof, after
giving effect to this Guaranty Supplement and acknowledges and affirms all
consents, covenants and waivers set forth therein.
Exhibit K
2. Notices. The notice address and facsimile number for the undersigned
is set forth on the applicable signature page hereof.
3. Counterparts. This Guaranty Supplement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
4. GOVERNING LAW. THIS GUARANTY SUPPLEMENT SHALL BE DEEMED TO BE MADE
UNDER, SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty Supplement
to be duly executed and delivered as of the date first above written.
[NEW GUARANTOR]
By:
-----------------------------
Name:
Title:
Notice Address:
--------------------------------
--------------------------------
--------------------------------
--------------------------------
Facsimile (___)
-----------------
Exhibit K
EXHIBIT L
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 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.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
MISSION BROADCASTING, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
Schedule 8.10(e)
TERM B LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL OR OUTSTANDING
END OF INTEREST PRINCIPAL
TYPE OF AMOUNT OF INTEREST PAID THIS BALANCE NOTATION
DATE LOAN MADE LOAN MADE PERIOD DATE THIS DATE MADE BY
------------------------------------------------------------------------------------------------
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
Schedule 8.10(e)
EXHIBIT A
FORM OF 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): ____________________________
4. Administrative Agent: ____________________________, as the administrative
agent under the Credit Agreement
A-1
Assignment and Assumption
5. Credit Agreement: The Amended and Restated Credit Agreement, dated
as of February __, 2003 among Mission
Broadcasting, Inc., the Banks 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/11/
----------------- ---------------- ---------------- --------------------
_________________/12/ $_______________ $_______________ ____________________%
_________________ $_______________ $_______________ ____________________%
_________________ $_______________ $_______________ ____________________%
[7. Trade Date: __________________]/13/
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:
----------
/11/ Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Banks thereunder.
/12/ 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.).
/13/ 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]/14/ Accepted:
[NAME OF ADMINISTRATIVE AGENT], as
Administrative Agent
By:
-------------------------------
Title:
[Consented to:]/15/
By:
-------------------------------
Title:
----------
/14/ To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
/15/ To be added only if the consent of the Borrower and/or other parties (e.g.
Issuing Bank) 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 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 Amended and Restated Credit Agreement dated as of the date hereof (the
"Credit Agreement") among Mission Broadcasting, Inc., (the "Borrower"), 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 ▇▇▇▇▇▇▇ 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 ____________________________
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.
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.
_________________________________
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 C
FORM OF COMPLIANCE CERTIFICATE
Date: _________, ____
Re: 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
Mission Broadcasting, Inc. (the "Borrower"), 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
▇▇▇▇▇▇▇ Corporate Lending, Inc., as Syndication Agent, and
Royal Bank of Canada, General Electric Capital Corporation,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business
Financial Services, Inc., as Co-Documentation Agents.
Bank of America, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇
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
Borrower.
(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
Borrower and the other Subsidiaries of the Borrower 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].
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 Borrower have
taken, are taking, or propose to take with respect to each such condition or
event.
The foregoing certifications, together with 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 has 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.
MISSION BROADCASTING, INC.
By:
-----------------------------
Title:
2
EXHIBIT D-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 Party"), for the benefit of
the Banks as that term is defined in the 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 Mission Broadcasting,
Inc. (the "Borrower"), 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 ▇▇▇▇▇▇▇ Corporate Lending, Inc., as
Syndication Agent, and Royal Bank of Canada, General Electric Capital
Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business
Financial Services, Inc., as Co-Documentation Agents. Unless otherwise defined
herein, terms used herein shall have the meanings ascribed to them in the Credit
Agreement.
WITNESSETH:
The Borrower, the Administrative Agent and the Banks party thereto have
entered into the 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, the Credit
Party 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 Party pursuant to the Loan
Documents shall include the Obligations as that term is defined in the Credit
Agreement. The Credit Party 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 Party agrees 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.
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2
IN WITNESS WHEREOF, this Agreement is executed as of the date first set
forth above.
CREDIT PARTY:
MISSION BROADCASTING, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
3
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
Mission Entities in favor of Bank of America, N.A., as Collateral Agent
4
EXHIBIT 2
5
EXHIBIT D-2
FORM OF CONFIRMATION AGREEMENT FOR THE PLEDGE AGREEMENT
THIS CONFIRMATION AGREEMENT (this "Agreement") is dated as of February 13,
2003 by the undersigned (the "Credit Party"), for the benefit of the Banks as
that term is defined in the 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 Mission Broadcasting, Inc. (the
"Borrower"), 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 ▇▇▇▇▇▇▇ Corporate Lending, Inc., as Syndication
Agent, and Royal Bank of Canada, General Electric Capital Corporation, ▇▇▇▇▇▇▇
▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial Services, Inc., as
Co-Documentation Agents. Unless otherwise defined herein, terms used herein
shall have the meanings ascribed to them in the Credit Agreement.
WITNESSETH:
The Borrower, the Administrative Agent and the Banks party thereto have
entered into a 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, the Credit
Party 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 Party pursuant to the Loan
Documents shall include the Obligations as that term is defined in the Credit
Agreement. The Credit Party 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 Party agrees 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.
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2
IN WITNESS WHEREOF, this Agreement is executed as of the date first set
forth above.
▇▇▇▇▇ ▇. ▇▇▇▇▇
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
3
EXHIBIT 1
The following are the Loan Documents, as amended and restated or otherwise
modified from time to time:
1. Pledge Agreement, dated as of January 12, 2001, made by ▇▇▇▇▇ ▇. ▇▇▇▇▇ in
favor of Bank of America, N.A., as Collateral Agent
4
EXHIBIT 2
5
EXHIBIT D-3
FORM OF CONFIRMATION AGREEMENT FOR THE GUARANTY AGREEMENTS
THIS CONFIRMATION AGREEMENT (this "Agreement") is dated as of February 13,
2003 by the undersigned (the "Credit Party"), for the benefit of the Banks as
that term is defined in the 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 Mission Broadcasting, Inc. (the
"Borrower"), 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 ▇▇▇▇▇▇▇ Corporate Lending, Inc., as Syndication
Agent, and Royal Bank of Canada, General Electric Capital Corporation, ▇▇▇▇▇▇▇
▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial Services, Inc., as
Co-Documentation Agents. Unless otherwise defined herein, terms used herein
shall have the meanings ascribed to them in the Credit Agreement.
WITNESSETH:
The Borrower, the Administrative Agent and the Banks party thereto have
entered into a 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, the Credit
Party 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 Party pursuant to the Loan
Documents shall include the Obligations as that term is defined in the Credit
Agreement. The Credit Party 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 Party agrees 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.
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2
IN WITNESS WHEREOF, this Agreement is executed as of the date first set
forth above.
CREDIT PARTY:
MISSION BROADCASTING, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
3
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 Mission
Entities
4
EXHIBIT 2
5
EXHIBIT E-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.
▇▇▇▇▇ 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:
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇▇▇ ▇▇▇▇▇ Management
as Investment Advisor
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
▇▇▇▇▇▇▇ & 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:
-----------------------------------
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ CORPORATE
LENDING INC.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
ROYAL BANK OF CANADA
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL, a division of
▇▇▇▇▇▇▇ ▇▇▇▇▇ 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/16/ 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
▇▇▇▇▇ ▇▇▇▇▇ Senior Income Trust -0- -0- $ 859,575.89
ELC (Cayman) Ltd. ▇▇▇▇-▇ -▇- -▇- $ 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
▇▇▇▇▇▇▇ & Co -0- -0- $ 1,719,151.78
▇▇▇▇▇▇ 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
▇▇▇▇▇ CLO Ltd. ▇▇▇▇-▇ -▇- -▇- $ 1,719,151.78
TOTAL: $ 42,000,000.00 $ 17,044,642.86 $ 64,468,191.94
----------
/16/ 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 ▇▇▇▇▇▇▇ Corporate Lending Inc. $ 14,062,500.00 -0-
General Electric Capital Corporation $ 6,250,000.00 $ 7,027,027.03
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of $ 6,250,000.00 $ 3,513,513.51
▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 E-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 ▇▇▇▇▇▇▇ CORPORATE
LENDING INC.
By:
------------------------
Name:
------------------------
Title:
------------------------
ROYAL BANK OF CANADA
By:
------------------------
Name:
------------------------
Title:
------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
------------------------
Name:
------------------------
Title:
------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL, a
division of ▇▇▇▇▇▇▇ ▇▇▇▇▇
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 ▇▇▇▇▇▇▇ Corporate Lending Inc. $ 8,437,500.00 -0-
General Electric Capital Corporation $ 3,750,000.00 $ 2,972,972.97
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of $ 3,750,000.00 $ 1,486,486.49
▇▇▇▇▇▇▇ ▇▇▇▇▇ 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
FORM OF INFORMATION CERTIFICATE
Reference is made to the 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 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 Security Agreement referred to therein, as applicable.
The undersigned (the "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 the Company, as such name appears in its
currently effective organizational documents as filed with the
appropriate authority of the jurisdiction of the Company's organization,
and the charter or similar unique identification number, if any,
assigned to the Company by the appropriate authority of the jurisdiction
of the Company's organization.
(b) Schedule 1 also sets forth each other name the Company has had
in the past five years, together with the date of the relevant change.
(c) Except as set forth in Schedule 1, the 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 the 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
the Company.
2. Current Locations.
(a) The chief executive office of the Company is located at the
address stated on Schedule 2, Section (a).
(b) Schedule 2, Section (b) states all locations where the 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
"*").
(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 the Company, Schedule 2, Section (d)
states all the places of business of the 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 the 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 the 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 the Company, or other
equity interest of the 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 the 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 the 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 agreement, and the name and street
address of the commodity intermediary maintaining the account.
Exhibit F
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
the 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 the 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
the 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 the 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.
(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
Exhibit F
registered owner, the nature of the 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 the 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 the Company has any interest.
14. Unusual Transactions. Except as described on Schedule 14, during
the past year, all Accounts have been originated by the Company and all
Inventory has been acquired by the 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 the 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 which any Company is a party and
the expiration date thereof; and (iii) the FCC Licenses of the Company and the
expiration date thereof.
Exhibit F
IN WITNESS WHEREOF, the undersigned has duly executed this certificate
on February ___, 2003.
MISSION BROADCASTING, INC.
By:
------------------------
Name:
------------------------
Title:
------------------------
Exhibit F
EXHIBIT G
FORM OF NOTICE OF BORROWING
Date: ___________, _____
Bank of America, N.A.,
as Administrative Agent
Corporate Loan Services
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ___▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
------------------------
Telecopier:
-----------------------
Re: 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
Mission Broadcasting, Inc. (the "Borrower"), 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
▇▇▇▇▇▇▇ Corporate Lending, Inc., as Syndication Agent, and
Royal Bank of Canada, General Electric Capital Corporation,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business
Financial Services, Inc., as Co-Documentation Agents. Unless
otherwise defined herein, terms used herein shall have the
meanings ascribed to them in the Credit Agreement.
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.
Exhibit G
[(5) The duration of the Interest Period for the Eurodollar Loans included
in the proposed Borrowing shall be [one] [two] [three] [six] [nine] [twelve]
months.]/17/
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.
MISSION BROADCASTING, INC.
By:
----------------------------------
Title:
----------
/17/ To be included for a proposed Borrowing of Eurodollar Loans.
Exhibit G
EXHIBIT H
FORM OF NOTICE OF CONVERSION/CONTINUATION
Date: _______, ____
Bank of America, N.A.,
as Administrative Agent
Corporate Loan Services
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ____ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:______________________
Telecopier:_____________________
Re: 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
Mission Broadcasting, Inc. (the "Borrower"), 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
▇▇▇▇▇▇▇ Corporate Lending, Inc., as Syndication Agent, and
Royal Bank of Canada, General Electric Capital Corporation,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business
Financial Services, Inc., as Co-Documentation Agents. Unless
otherwise defined herein, terms used herein shall have the
meanings ascribed to them in the Credit Agreement.
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 H
[(4) The duration of the Interest Period for the Loans included in the
[conversion] [continuation] shall be [one] [two] [three] [six]
[nine] [twelve] months.]/18/
MISSION BROADCASTING, INC.
By:
----------------------------------
Title:
----------
/18/ 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 H
EXHIBIT I
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 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 I
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
MISSION BROADCASTING, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Exhibit I
REVOLVING LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL OR OUTSTANDING
END OF INTEREST PRINCIPAL
TYPE OF AMOUNT OF INTEREST PAID THIS BALANCE NOTATION
DATE LOAN MADE LOAN MADE PERIOD DATE THIS DATE MADE BY
------------------------------------------------------------------------------------------------
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
____________ ____________ ____________ ____________ ____________ ____________ ____________
Exhibit I
EXHIBIT J
FORM OF SOLVENCY CERTIFICATE
____________, 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 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 Mission Broadcasting,
Inc. (the "Borrower"), 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 ▇▇▇▇▇▇▇ Corporate Lending, Inc., as
Syndication Agent, and Royal Bank of Canada, General Electric Capital
Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business
Financial Services, Inc., as Co-Documentation Agents. Unless otherwise defined
herein, terms used herein shall have the meanings ascribed to them in the Credit
Agreement. 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 in ____________ capacity as
____________________ of ______________, and not in his or her individual
capacity, hereby certifies on behalf of ________________ 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 J
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
Exhibit J
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]
Exhibit J
IN WITNESS WHEREOF, the undersigned have caused this Certificate to be
executed as of the date first above.
MISSION BROADCASTING, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
Exhibit J
EXHIBIT K
FORM OF SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY (this "Guaranty"), dated as of _____________, is
made by each of the undersigned (each a "Guarantor" and, together with the other
signatories hereto and any other entities from time to time parties hereto
pursuant to Section 22 hereof, collectively, the "Guarantors"), in favor of the
Guaranteed Parties (as hereinafter defined).
RECITALS:
A. Mission Broadcasting, Inc., a Delaware corporation (the "Borrower") is
a party to that certain Amended and Restated Credit Agreement, dated as of
February 13, 2003 (as the same may be amended, supplemented or otherwise
modified from time to time, including, without limitation, all extensions,
renewals, restatements, rearrangements and refundings thereof, the "Credit
Agreement"), among the Borrower, 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 in such
capacity in such capacity, the "Administrative Agent"), Bear ▇▇▇▇▇▇▇ Corporate
Lending, Inc. as Syndication Agent, and Royal Bank of Canada, General Electric
Capital Corporation and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, as Documentation Agents, pursuant
to which the Banks have severally agreed to make loans to the Borrower, and Bank
of America, N.A. (the "Issuing Bank") has agreed to issue letters of credit for
the account of, the Borrower, upon the terms and conditions set forth therein.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in such Credit Agreement.
B. The Borrower may also from time to time be party to one or more
Interest Rate Protection Agreements with any Bank or an Affiliate of any Bank
(even if any such Bank ceases to be a Bank under the Credit Agreement for any
reason), and their successors and assigns, if any (collectively, the "Interest
Rate Guaranteed Parties"), providing for protection against fluctuations in
interest rates.
C. As a condition precedent to the extensions of credit under the Credit
Agreement and the Interest Rate Protection Agreements, the Banks have required
that the Guarantors execute and deliver this Guaranty in favor of the Banks, the
Issuing Bank, the Administrative Agent, the Collateral Agent and the Interest
Rate Guaranteed Parties (collectively, the "Guaranteed Parties").
D. Each Guarantor will derive substantial direct and indirect benefit
from the extensions of credit under the Credit Agreement and the financial
accommodations under the Interest Rate Protection Agreements.
E. Accordingly, each Guarantor desires to execute this Guaranty in order
to satisfy the condition described above in Recital C.
In consideration of the foregoing and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, each
Guarantor hereby jointly and
severally agrees as follows:
1. Guaranty.
(a) Each Guarantor unconditionally and irrevocably guarantees the
prompt payment when due, whether at stated maturity, upon acceleration or
otherwise, and at all times thereafter, of all the unpaid principal of and
interest on the Loans (including, without limitation, interest accruing after
the maturity of the Loans and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Credit Party, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) and all other
obligations and liabilities of the Borrower to the Administrative Agent, any
Bank or the Issuing 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, that
may arise under, out of, or in connection with the Credit Agreement, any other
Loan Document, any Letter of Credit, any Interest Rate Protection Agreement
entered into with any Bank (or any Affiliate of any Bank), 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 or to any Bank
that are required to be paid by the Borrower pursuant to any Loan Document) or
otherwise (collectively, all of the foregoing are referred to herein as the
"Guaranteed Obligations").
(b) In addition to the Guaranteed Obligations, each Guarantor further
agrees to pay any and all reasonable costs and expenses (including reasonable
fees and disbursements of counsel) incurred by any Guaranteed Party in enforcing
any rights under this Guaranty together with any accrued but unpaid interest on
the Guaranteed Obligations (including, without limitation, interest which, but
for the filing of a petition of bankruptcy with respect to the Borrower, would
have accrued on the Guaranteed Obligations), which agreement shall survive
termination of this Guaranty.
(c) Each Guarantor understands and confirms that the Guaranteed
Parties may enforce this Guaranty up to the full amount of the Guaranteed
Obligations against any Guarantor without proceeding against the Borrower or any
other Person, any security for the Guaranteed Obligations, or under any other
guaranty covering all or a portion of the Guaranteed Obligations.
(d) Notwithstanding anything in this Guaranty to the contrary, the
obligations of each Guarantor under this Guaranty shall be limited to a maximum
aggregate amount equal to the largest amount that would not render such
Guarantor's obligations hereunder subject to avoidance as a fraudulent transfer
or fraudulent conveyance under Section 548 of Title 11 of the United States Code
or any applicable provisions of comparable state law (collectively, the
"Fraudulent Transfer Laws"), in each case after giving effect to all other
liabilities of such Guarantor, contingent or otherwise, that are relevant under
the Fraudulent Transfer Laws (specifically excluding, however, any liabilities
of such Guarantor in respect of intercompany Indebtedness to the Borrower or any
Subsidiary or Affiliate of the Borrower to the extent that such Indebtedness
would be discharged in an amount equal to the amount paid by such Guarantor
L-2
hereunder) and after giving effect as assets to the value (as determined under
the applicable provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, reimbursement or contribution of such Guarantor pursuant to (i)
applicable law, or (ii) any agreement providing for rights of subrogation,
reimbursement or contribution in favor of such Guarantor, or for an equitable
allocation among such Guarantor, the Borrower and/or any other Person of
obligations arising under guaranties by such Persons.
2. No Release. Each Guarantor agrees that the Guaranteed Obligations may
be extended, renewed or otherwise modified, in whole or in part, without any
notice to or further assent from it, and that such Guarantor will remain bound
by this Guaranty notwithstanding any extension, renewal or other modification of
any Guaranteed Obligation.
3. Waiver of Notices. Each Guarantor waives notice of the acceptance of
this Guaranty, presentment, protest, notice, dishonor or default, demand for
payment and any other notices to which Guarantor might otherwise be entitled.
4. Obligations Absolute. The obligations of each Guarantor under this
Guaranty are those of a primary obligor, and not merely a surety, are
independent of the obligations of the Guaranteed Parties, and shall not be
affected by any:
(a) change in the manner, place or terms of payment of (including the
currency thereof), and/or change or extension of the time of payment of, or
renewal or modification of, any of the Guaranteed Obligations, any security or
guarantee therefor, or any liability incurred directly or indirectly in respect
thereof; provided, that this Guaranty shall apply to the Guaranteed Obligations
as so changed, extended, renewed or modified;
(b) sale, exchange, release, surrender, realization upon, failure to
perfect any security interest in, or other alteration in any manner and in any
order of any property by whomsoever at any time pledged or mortgaged to secure,
or howsoever securing, the Guaranteed Obligations or any liabilities (including
any of those hereunder) incurred directly or indirectly in respect thereof or
hereof and for offset thereagainst;
(c) settlement or compromise of any of the Guaranteed Obligations,
any security or guarantee therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, or
subordination of the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower;
(d) actions or failures to act in any manner referred to in this
Guaranty which may deprive such Guarantor of its right to subrogation against
the Borrower to recover full indemnity for any payments made pursuant to this
Guaranty;
(e) failure of any Guaranteed Party to assert any claim or demand or
to enforce any right or remedy against the Borrower or any guarantor or any
successor thereto under the provisions of the Credit Agreement, any other Loan
Document or any other agreement or otherwise; or
(f) rescission, waiver, extension, renewal, amendment or modification
of any
L-3
of the terms or provisions of the Credit Agreement, any other Loan Document, any
guarantee or any instrument or agreement executed pursuant thereto.
5. Guaranty of Payment and Performance. This Guaranty constitutes a
guarantee of payment and performance when due and not of collection and each
Guarantor waives any right to require that any resort be had by any Guaranteed
Party to the Borrower, any other guarantor, any property by whomsoever at any
time pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any balance of any deposit account or credit on the books of any
Guaranteed Party in favor of the Borrower or any other Person.
6. Unenforceability of Obligations. The obligations of each Guarantor
under this Guaranty shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than by payment and performance
in full of the Guaranteed Obligations and termination of all Commitments under
the Credit Agreement, and except as limited in Section 1(d) of this Guaranty)
and shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of any of the Guaranteed Obligations, discharge of the Borrower
from any of the Guaranteed Obligations in a bankruptcy or similar proceeding or
otherwise (other than by payment and performance in full of the Guaranteed
Obligations and termination of all Commitments under the Credit Agreement, and
except as limited in Section 1(d) of this Guaranty).
7. Set-Off. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Creditor Law) and not by way of limitation of any such rights, upon
the occurrence of any Event of Default, each Guaranteed Party is hereby
authorized at any time or from time to time, without notice to any Guarantor or
to any other Person, any such notice being expressly waived, to the extent
permitted by applicable law, to set off and to appropriate and apply any and all
deposits (general or special) and any other indebtedness at any time held or
owing by such Guaranteed Party to or for the credit or the account of any
Guarantor, against and on account of the obligations and liabilities of such
Guarantor to such Guaranteed Party under this Guaranty, irrespective of whether
or not such Guaranteed Party shall have made any demand hereunder and although
said obligations, liabilities, deposits or claims, or any of them, shall be
contingent or unmatured.
8. Reinstatement. This Guaranty shall continue to be effective and, if
cancelled or otherwise terminated shall be reinstated, if at any time any
payment, or any part thereof, of principal of, interest on or any other amount
with respect to any Guaranteed Obligation is rescinded or must otherwise be
restored by any Guaranteed Party or any other Person upon the bankruptcy or
reorganization of the Borrower or any other Person or otherwise. If claim is
ever made upon any Guaranteed Party for repayment or recovery of any amount or
amounts received in payment or on account of any of the Guaranteed Obligations
and any of the Guaranteed Parties repays all or part of said amount by reason of
(a) any judgment, decree or order of any court or administrative body having
jurisdiction over such Guaranteed Party or any of its property, or (b) any
settlement or compromise of any such claim effected by such Guaranteed Party
with any such claimant (including the Borrower), then and in such event each
Guarantor jointly and severally agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon it, notwithstanding any
revocation, termination or cancellation hereof or of the
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Credit Agreement, any other Loan Document or any other instrument evidencing any
liability of the Borrower, and such Guarantor shall be and remain liable to such
Guaranteed Party hereunder for the amount so repaid or recovered to the same
extent as if such amount had never originally been received by any such
Guaranteed Party.
9. No Subrogation. Notwithstanding any payment or payments by any
Guarantor hereunder or any set-off or application of funds of any Guarantor by
any Guaranteed Party, no Guarantor shall be entitled to be subrogated to any of
the rights of any Guaranteed Party against the Borrower or guarantee or right of
offset held by any Guaranteed Party of the payment of the Guaranteed
Obligations, nor shall any Guarantor seek to be entitled to seek any
reimbursement or contribution from the Borrower or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing to
the Guaranteed Parties by the Borrower on account of the Guaranteed Obligations
are indefeasibly paid in full in cash. If any amount shall be paid to any
Guarantor on account of the subrogation rights at any time when all of the
Guaranteed Obligations of the Borrower have not been indefeasibly paid in full
in cash, such amount shall be held by such Guarantor in trust for the Guaranteed
Parties, segregated from other funds of such Guarantor, and shall, immediately
upon receipt by such Guarantor, be turned over to the Administrative Agent in
the exact form received by such Guarantor (duly endorsed by such Guarantor to
the Administrative Agent, if required), to be applied against the Guaranteed
Obligations of the Borrower, whether matured or unmatured, in such order as the
Administrative Agent may determine.
10. Amendment and Waiver; Cumulative Remedies; Severability. No amendment,
modification, termination or waiver of any provision of this Guaranty, or
consent to any departure by any Guarantor herefrom, shall be effective without
the written concurrence of the Majority Banks under the Credit Agreement or as
otherwise provided in the Credit Agreement including, without limitation,
Section 11.01(a) thereof. No failure by the Guaranteed Parties to exercise, and
no delay in exercising, any right, remedy or power hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy or
power hereunder preclude any other or further exercise thereof or the exercise
of any other right. No waiver of any breach or default under this Guaranty shall
be deemed a waiver of any other breach or default hereunder. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law or in
equity. The unenforceability or invalidity of any provision of this Guaranty
shall not affect the enforceability or validity of any other provision herein.
11. Notices. 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, (a) if to any Guarantors, to the address or facsimile number
specified for notices on the applicable signature page hereof; (b) if to any
Guaranteed Party, to the notice address specified for such party on Schedule
1.01(A) to the Credit Agreement; or (c) to such other address as shall be
designated by any party in a written notice to the other parties and the
Administrative Agent.
12. Stay of Acceleration. In the event that acceleration of the time for
payment of any of the Guaranteed Obligations is stayed, upon the insolvency,
bankruptcy or reorganization of the Borrower or any other Person, or otherwise,
all such amounts shall nonetheless be payable by the
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Guarantor immediately upon demand by the Guaranteed Parties.
13. Representations and Warranties. In order to induce the Banks to make
Loans and the Issuing Bank to issue Letters of Credit pursuant to the Credit
Agreement, and in order to induce the Interest Rate Guaranteed Parties to
execute, deliver and perform the Interest Rate Protection Agreements, each
Guarantor represents, warrants and covenants that:
(a) Such Guarantor (i) is a duly organized and validly existing
corporation, partnership or limited liability company, as the case may be, and
is in good standing under the laws of the jurisdiction of its organization, (ii)
has the power and authority and all governmental licenses, authorizations,
consents and approvals to own or hold under lease its property or assets,
conduct its business and execute, deliver, and perform its obligations under,
this Guaranty and the other Loan Documents to which it is a party, (iii) 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 to so qualify would not reasonably be expected
to have a Material Adverse Effect and (iv) is in compliance with all
Requirements of Law, except to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
(b) This Guaranty and each other Loan Document to which such
Guarantor is a party constitutes the legal, valid and binding obligation of such
Guarantor, enforceable against such Guarantor in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, or
other similar laws affecting creditors' rights generally and by equitable
principles of general application.
(c) The execution, delivery and performance by such Guarantor of this
Guaranty and each other Loan Document to which such Guarantor is a party have
been duly authorized by all necessary corporate, limited liability company or
partnership action, as the case may be, and do not and will not (i) contravene
any terms of the Charter Documents of such Guarantor, (ii) conflict with or
result in any breach or contravention of, or the creation of any Lien (except
under the Security Documents) under, any document evidencing any material
Contractual Obligation to which such Guarantor is a party of any order,
injunction, writ or decree of any Governmental Authority to which such Guarantor
or its property is subject, or (iii) violate any Requirement of Law.
(d) No approval, consent, exemption, authorization, or other action
by, or notice to, or filing with or approvals of any Governmental Authority is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against (except as may be required by the Communications Act
of 1933, as amended, and the rules, regulations and policies of the FCC), such
Guarantor of this Guaranty and each other Loan Document to which such Guarantor
is a party.
(e) There are no actions, suits or proceedings, claims or disputes
pending, or to the best knowledge of such Guarantor, threatened at law, in
equity, or in arbitration before any Governmental Authority, against such
Guarantor or any of its properties or assets which
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(i) purport to affect or pertain to this Guaranty or any other Loan Document to
which such Guarantor is a party, or any of the transactions contemplated hereby,
or (ii) would 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 Guaranty, or directing
that any other transaction provided for herein not be consummated as herein
provided.
14. Credit Agreement Covenants. Each Guarantor covenants and agrees that
on and after the date hereof and until the Aggregate Commitment and all Interest
Rate Protection Agreements have been terminated and no Loan or Letter of Credit
remains outstanding (other than Letters of Credit, together with all fees that
have accrued and will accrue thereon through the stated termination date of such
Letters of Credit, which have been supported in a manner satisfactory to the
Issuing Bank in its sole and absolute discretion) and all Guaranteed Obligations
have been paid in full (other than indemnities described in Section 11.05 of the
Credit Agreement and analogous provisions in the Security Documents which are
not then due and payable), such Guarantor shall take, or will refrain from
taking, as the case may be, all actions that are necessary to be taken or not
taken so that no violation of any provision, covenant or agreement contained in
Article VII or VIII of the Credit Agreement, and so that no Default or Event of
Default is caused by the actions of such Guarantor or any of its Subsidiaries.
15. Successors and Assigns. This Guaranty shall be binding upon each
Guarantor and its successors and assigns and shall inure to the benefit of the
respective successors and assigns of the Guaranteed Parties and, in the event of
any transfer or assignment of rights by any Guaranteed Party, the rights and
privileges herein conferred upon that Guaranteed Party shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof, provided, however, that no Guarantor may assign any of
its rights or obligations hereunder without the consent of the Banks and any
such assignment without such consent shall be void.
16. Governing, Law. THIS GUARANTY SHALL BE DEEMED TO BE MADE UNDER, SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
17. Jurisdiction and Service. All judicial proceedings brought against any
Guarantor with respect to this Guaranty may be brought in any state or federal
court of competent jurisdiction in the State of New York and by execution and
delivery of this Guaranty each Guarantor accepts for itself and in connection
with its properties, generally and unconditionally, the nonexclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Guaranty. Each Guarantor
irrevocably and unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Guaranty in any state or federal court in the State of New York. Each
Guarantor irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court and irrevocably consents to service of process in the manner
provided for notices in Section 11.
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Nothing in this Guaranty will affect the right of any Guaranteed Party to serve
process in any other manner permitted by law. If any agent appointed by any
Guarantor refuses to accept service, each Guarantor agrees that service upon it
by mail shall constitute sufficient notice. Nothing herein shall affect the
right of any Guaranteed Party to bring proceedings against any Guarantor in the
courts of any other jurisdiction.
18. Waiver of Jury Trial. EACH GUARANTOR HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS GUARANTY, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT.
Each Guarantor (a) certifies that no representative, agent or attorney of any
other party to the Loan Documents has represented, expressly or otherwise, that
such other party would not, in the event of litigation, seek to enforce the
foregoing waiver and (b) acknowledges that the Banks and the other parties to
the Loan Documents have been induced to enter into the Loan Documents by, among
other things, the foregoing waiver and certification.
19. Release. This Guaranty is a continuing and irrevocable guaranty of all
Guaranteed Obligations now or hereafter existing and may be released only in
accordance with Section 11.01 of the Credit Agreement.
20. Counterparts. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
originals executed by all the parties hereto shall be delivered to the
Administrative Agent, and a copy thereof shall be furnished to the Borrower or
any Guarantor upon request therefor.
21. Security Documents. The obligations of each Guarantor are secured by
certain of the Security Documents. Each Guarantor shall comply with all terms
and conditions of the Security Documents to which such Guarantor is a party, as
the same may be amended, restated, supplemented or otherwise modified from time
to time.
22. Additional Guarantors. It is understood and agreed that any Person may
become a party hereto by executing a Guaranty Supplement in the form of Annex A
attached hereto and delivering the same to the Administrative Agent. Any such
Person shall thereafter be deemed a "Guarantor" for all purposes under this
Guaranty.
[Remainder of page intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, each of the undersigned has caused this Subsidiary
Guaranty to be duly executed as of the day and year first above written.
NAME OF MISSION SUBSIDIARIES
By:
-------------------------------------
Title:
---------------------------------- of each of the
above-named entities
Address of all Guarantors:
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
[Subsidiary Guaranty Signature Page]
Annex A
GUARANTY SUPPLEMENT
THIS GUARANTY SUPPLEMENT is made by the undersigned as of
______________________.
RECITALS:
A. Mission Broadcasting, Inc., a Delaware corporation (the "Borrower") is
a party to that certain Amended and Restated Credit Agreement, dated as of
February 13, 2003 (as the same may be amended, supplemented or otherwise
modified from time to time, including, without limitation, all extensions,
renewals, restatements, rearrangements and refundings thereof, the "Credit
Agreement"), among the Borrower, 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 in such
capacity, the "Administrative Agent"), Bear ▇▇▇▇▇▇▇ Corporate Lending, Inc. as
Syndication Agent, and Royal Bank of Canada, General Electric Capital
Corporation and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, as Documentation Agents, pursuant to
which the Banks have severally agreed to make loans to the Borrower, and Bank of
America, N.A. (the "Issuing Bank") has agreed to issue letters of credit for the
account of, the Borrower, upon the terms and conditions set forth therein.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in such Credit Agreement.
B. The Borrower may also from time to time be party to one or more
Interest Rate Protection Agreements with any Bank or an Affiliate of any Bank
(even if any such Bank ceases to be a Bank under the Credit Agreement for any
reason), and their successors and assigns, if any (collectively, the "Interest
Rate Guaranteed Parties"), providing for protection against fluctuations in
interest rates.
C. In connection with the Credit Agreement and the Interest Rate
Protection Agreements, certain Subsidiaries of the Borrower entered into a
Subsidiary Guaranty Agreement, dated as of even date with the Credit Agreement
(as in effect on the date hereof, the "Guaranty").
D. Pursuant to Section 7.16 of the Credit Agreement, the undersigned is
required to become a party to the Guaranty.
E. The undersigned desires to execute and deliver this Guaranty
Supplement in order to become a party to the Guaranty.
NOW, THEREFORE, IT IS AGREED:
1. Guaranty. By executing and delivering this Guaranty Supplement, the
undersigned becomes a party to the Guaranty as a "Guarantor" thereunder, and
expressly and jointly and severally assumes all obligations and liabilities of a
"Guarantor" thereunder. The undersigned makes each of the representations and
warranties contained in Section 13 of the Guaranty on the date hereof, after
giving effect to this Guaranty Supplement and acknowledges and affirms all
consents, covenants and waivers set forth therein.
Exhibit K
2. Notices. The notice address and facsimile number for the undersigned
is set forth on the applicable signature page hereof.
3. Counterparts. This Guaranty Supplement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
4. GOVERNING LAW. THIS GUARANTY SUPPLEMENT SHALL BE DEEMED TO BE MADE
UNDER, SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty Supplement to
be duly executed and delivered as of the date first above written.
[NEW GUARANTOR]
By:
----------------------------------
Name:
Title:
Notice Address:
______________________________________
______________________________________
______________________________________
______________________________________
Facsimile(___)________________________
Exhibit K
EXHIBIT L
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 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 L
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
MISSION BROADCASTING, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Exhibit L
TERM B LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL OR OUTSTANDING
END OF INTEREST PRINCIPAL
TYPE OF AMOUNT OF INTEREST PAID THIS BALANCE NOTATION
DATE LOAN MADE LOAN MADE PERIOD DATE THIS DATE MADE BY
-------------------- ---------------- ---------------- ----------------- -------------- --------------- -----------
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
____________________ ________________ ________________ _________________ ______________ _______________ ___________
Exhibit L