EXHIBIT 10.3
EXECUTION VERSION
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CREDIT AGREEMENT
AMONG
BASTET BROADCASTING, INC.
AND
MISSION BROADCASTING OF WICHITA FALLS, INC.,
AS BORROWERS,
THE SEVERAL FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTIES HERETO,
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT,
BARCLAYS BANK PLC,
AS SYNDICATION AGENT,
AND
FIRST UNION NATIONAL BANK,
AS DOCUMENTATION AGENT
BANK OF AMERICA SECURITIES LLC,
AS LEAD ARRANGER
AND BOOK MANAGER
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DATED AS OF JANUARY 12, 2001
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS....................................................................... 1
1.01 Defined Terms........................................................................... 1
1.02 Other Definitional Provisions........................................................... 27
1.03 Accounting Principles................................................................... 28
1.04 Classes and Types of Loans and Borrowings............................................... 28
ARTICLE II. THE CREDIT FACILITIES............................................................. 29
2.01 Amounts and Terms of Commitments........................................................ 29
2.02 Loan Accounts; Notes.................................................................... 30
2.03 Procedure for Borrowing................................................................. 31
2.04 Conversion and Continuation Elections for all Borrowings................................ 32
2.05 Reduction and Termination of Commitments................................................ 33
2.06 Voluntary Prepayments................................................................... 34
2.07 Mandatory Prepayments................................................................... 35
2.08 Maturity and Amortization of Loans...................................................... 37
2.09 Fees.................................................................................... 37
2.10 Computation of Fees and Interest........................................................ 38
2.11 Interest................................................................................ 38
2.12 Payments by the Borrower................................................................ 39
2.13 Payments by the Banks to the Administrative Agent....................................... 40
2.14 Sharing of Payments, etc................................................................ 41
2.15 Security Documents and Subsidiary Guaranty.............................................. 41
2.16 Procedure for Incremental Commitment Requests........................................... 41
ARTICLE III. LETTERS OF CREDIT................................................................. 42
3.01 The Letter of Credit Subfacility........................................................ 42
3.02 Issuance, Amendment and Renewal of Letters of Credit.................................... 43
3.03 Participations, Drawings and Reimbursements............................................. 45
3.04 Repayment of Participations............................................................. 47
3.05 Role of the Issuing Banks............................................................... 47
3.06 Obligations Absolute.................................................................... 48
3.07 Cash Collateral Pledge.................................................................. 48
3.08 Letter of Credit Fees................................................................... 49
ARTICLE IV. TAXES, YIELD PROTECTION AND ILLEGALITY............................................ 50
4.01 Taxes................................................................................... 50
4.02 Illegality.............................................................................. 54
4.03 Increased Costs and Reduction of Return................................................. 54
4.04 Funding Losses.......................................................................... 55
4.05 Inability to Determine Rates............................................................ 55
4.06 Reserves on Eurodollar Loans............................................................ 56
4.07 Certificates of Banks................................................................... 56
4.08 Change of Lending Office, Replacement Bank.............................................. 56
4.09 Survival................................................................................ 57
ARTICLE V. CONDITIONS PRECEDENT.............................................................. 57
5.01 Conditions to the Effective Date........................................................ 57
5.02 Additional Conditions to the Effective Date............................................. 61
5.03 Conditions to All Borrowings and the Issuance of Any Letters of Credit.................. 63
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ARTICLE VI. REPRESENTATIONS AND WARRANTIES..................................................... 64
6.01 Existence; Compliance with Law........................................................... 64
6.02 Corporate, Limited Liability Company or Partnership Authorization; No Contravention...... 65
6.03 Governmental Authorization............................................................... 65
6.04 Binding Effect........................................................................... 65
6.05 Litigation............................................................................... 65
6.06 No Default............................................................................... 66
6.07 ERISA Compliance......................................................................... 66
6.08 Use of Proceeds; Margin Regulations...................................................... 66
6.09 Ownership of Property; Intellectual Property............................................. 67
6.10 Taxes.................................................................................... 67
6.11 Financial Statements..................................................................... 68
6.12 Securities Law, etc.; Compliance......................................................... 68
6.13 Governmental Regulation.................................................................. 68
6.14 Accuracy of Information.................................................................. 68
6.15 Hazardous Materials...................................................................... 69
6.16 FCC Licenses............................................................................. 69
6.17 Subsidiaries............................................................................. 70
6.18 Solvency................................................................................. 70
6.19 Labor Controversies...................................................................... 70
6.20 Security Documents....................................................................... 70
6.21 Network Affiliation Agreements........................................................... 71
6.22 Condition of Stations.................................................................... 71
ARTICLE VII. AFFIRMATIVE COVENANTS.............................................................. 71
7.01 Financial Statements..................................................................... 71
7.02 Certificates; Other Information.......................................................... 72
7.03 Notices.................................................................................. 72
7.04 FCC Information.......................................................................... 73
7.05 FCC Licenses and Regulatory Compliance................................................... 73
7.06 License Lapse............................................................................ 73
7.07 Maintenance of Corporate, Limited Liability Company or Partnership Existence, etc........ 74
7.08 Foreign Qualification, etc............................................................... 74
7.09 Payment of Taxes, etc.................................................................... 74
7.10 Maintenance of Property; Insurance....................................................... 74
7.11 Compliance with Laws, etc................................................................ 74
7.12 Books and Records........................................................................ 74
7.13 Use of Proceeds.......................................................................... 75
7.14 End of Fiscal Years; Fiscal Quarters..................................................... 75
7.15 Additional Security; Further Assurances.................................................. 75
7.16 Information.............................................................................. 76
ARTICLE VIII. NEGATIVE COVENANTS................................................................. 76
8.01 Changes in Business...................................................................... 76
8.02 Limitation on Liens...................................................................... 76
8.03 Disposition of Assets.................................................................... 78
8.04 Consolidations, Mergers, Acquisitions, etc............................................... 78
8.05 Limitation on Indebtedness............................................................... 80
8.06 Transactions with Affiliates............................................................. 81
8.07 Use of Credits; Compliance with Margin Regulations....................................... 81
8.08 Environmental Liabilities................................................................ 82
8.09 Financial Covenants...................................................................... 82
8.10 Restricted Payments...................................................................... 82
8.11 Advances, Investments and Loans.......................................................... 83
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8.12 Limitation on Business Activities........................................................ 84
8.13 Sales or Issuances of Capital Stock...................................................... 84
8.14 No Waivers or Amendments................................................................. 84
ARTICLE IX. EVENTS OF DEFAULT.................................................................. 84
9.01 Event of Default......................................................................... 84
9.02 Remedies................................................................................. 86
9.03 Rights Not Exclusive..................................................................... 87
ARTICLE X. THE GUARANTY....................................................................... 87
10.01 Guaranty from the Guarantor Parties...................................................... 87
10.02 Guaranty Limited......................................................................... 91
ARTICLE XI. THE ADMINISTRATIVE AGENT, THE ISSUING BANK AND THE LEAD ARRANGER AND
BOOK MANAGER...................................................................................... 91
11.01 Appointment and Authorization............................................................ 91
11.02 Delegation of Duties..................................................................... 92
11.03 Liability of Administrative Agent........................................................ 92
11.04 Reliance by Administrative Agent......................................................... 92
11.05 Notice of Default........................................................................ 93
11.06 Credit Decision.......................................................................... 93
11.07 Indemnification.......................................................................... 94
11.08 Administrative Agent in Individual Capacity.............................................. 95
11.09 Successor Administrative Agent........................................................... 95
11.10 The Lead Arranger and Book Manager....................................................... 95
ARTICLE XII. MISCELLANEOUS...................................................................... 95
12.01 Amendments and Waivers................................................................... 95
12.02 Notices.................................................................................. 97
12.03 No Waiver; Cumulative Remedies........................................................... 98
12.04 Costs and Expenses....................................................................... 98
12.05 INDEMNITY................................................................................ 98
12.06 Successors and Assigns................................................................... 99
12.07 Assignments, Participations, etc......................................................... 99
12.08 Confidentiality.......................................................................... 101
12.09 Set-off.................................................................................. 102
12.10 Notification of Addresses, Lending Offices, etc.......................................... 102
12.11 Counterparts............................................................................. 102
12.12 Severability............................................................................. 102
12.13 No Third Parties Benefited............................................................... 102
12.14 Governing Law and Jurisdiction; Waiver of Trial by Jury.................................. 103
12.15 Effectiveness............................................................................ 103
12.16 Additional Borrowers..................................................................... 104
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SCHEDULE 1.01 NOTICE ADDRESSES/LENDING OFFICES
SCHEDULE 2.01 COMMITMENTS
SCHEDULE 6.16 FCC LICENSES
SCHEDULE 6.17 SUBSIDIARIES
SCHEDULE 6.21 NETWORK AFFILIATION AGREEMENTS
SCHEDULE 8.05(a) EXISTING INDEBTEDNESS
SCHEDULE 8.11(d) INVESTMENTS
EXHIBIT A Form of Assignment and Assumption
EXHIBIT B Form of Nexstar Guaranty Agreement
EXHIBIT C Form of Notice of Borrowing
EXHIBIT D Form of Notice of Conversion/Continuation
EXHIBIT E Form of Pledge Agreement
EXHIBIT F Form of Security Agreement
EXHIBIT G Form of ▇▇▇▇▇ Pledge Agreement
EXHIBIT H Form of Officer's Solvency Certificate
EXHIBIT I Form of Subsidiary Guaranty Agreement
EXHIBIT J Form of Closing Certificate
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of January 12, 2001, among BASTET
BROADCASTING, INC., a Delaware corporation ("Bastet"), and MISSION BROADCASTING
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OF WICHITA FALLS, INC., a Delaware corporation ("Mission Wichita Falls") (Bastet
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and Mission Wichita Falls are each a "Borrower" and collectively the
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"Borrowers"), the several banks and other financial institutions or entities
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from time to time party to this Agreement (the "Banks"), BANK OF AMERICA, N.A.,
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as the Administrative Agent for the Banks, BARCLAYS BANK PLC, as the Syndication
Agent, and FIRST UNION NATIONAL BANK, as the Documentation Agent.
In consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
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1.01 Defined Terms.
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As used in this Agreement, the capitalized terms in the preamble and
the recitals hereto shall have the meanings therein given them, and the
following words and terms shall have the meanings specified below:
"▇▇▇▇ ▇.▇. II" means ABRY Broadcast Partners II, L.P., a limited
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partnership organized under the laws of the State of Delaware.
"▇▇▇▇ ▇.▇. III" means ABRY Broadcast Partners III, L.P., a limited
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partnership organized under the laws of the State of Delaware.
"Additional Security Documents" has the meaning provided in Section
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7.15(a).
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"Adjusted Working Capital" means for any Person, (i) the current
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assets of such Person (excluding cash and Cash Equivalents) minus (ii) the
current liabilities of such Person (excluding the current portion of any long-
term Indebtedness (including Capital Lease Obligations), and excluding deferred
income tax liabilities, of such Person), each as determined on a consolidated
basis.
"Adjustment Date" means each " Adjustment Date" as determined pursuant
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to the Nexstar Credit Agreement.
"Administrative Agent" means Bank of America, N.A. in its capacity as
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Administrative Agent for the Banks hereunder, and any successor to such agent.
"Administrative Agent-Related Persons" has the meaning specified in
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Section 11.03.
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"Administrative Agent's Payment Office" means the address for payments
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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.
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"Affiliate" means, with respect to any Person, any other Person (i)
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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.
"Aggregate Available Commitment" means the sum of the Available
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Commitments of all Banks.
"Aggregate Combined Commitment" means the sum of the Aggregate
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Commitment plus the Aggregate Incremental Commitment.
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"Aggregate Commitment" means the sum of the Commitments of all of the
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Banks, in an initial amount of $43,000,000, as such amount may be adjusted from
time to time pursuant to this Agreement.
"Aggregate Incremental Commitment" at any time, means the sum of the
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amount of all Incremental Commitments at such time, in an initial amount equal
to zero, as such amount may be increased pursuant to Section 2.01(b) to an
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aggregate amount which may not exceed the Maximum Incremental Amount.
"Aggregate Outstanding Loan Balance" means the sum of the aggregate
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outstanding principal balances of all Loans.
"Agreement" means this Credit Agreement, including the Schedules and
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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
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Reinvestment Election, the amount specified in the Reinvestment Notice delivered
by the Borrowers in connection therewith as the amount of the Net Cash Proceeds
from the related Disposition that a Borrower or any Subsidiary of such Borrower
intends to use to purchase, construct or otherwise acquire Reinvestment Assets.
"Applicable Margin" means, (i) with respect to Loans (other than
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Incremental Loans) that are Eurodollar Loans, the "Applicable Margin" for
"Eurodollar Loans" outstanding under, and as determined pursuant to, the Nexstar
Credit Agreement from time to time, (ii) with respect to Loans (other than
Incremental Loans) that are Base Rate Loans, the "Applicable Margin" for "Base
Rate Loans" outstanding under, and as determined pursuant to, the Nexstar Credit
Agreement from time to time, and (iii) with respect to Incremental Loans, the
Incremental Margin to be added to the Base Rate or Eurodollar Rate, as the case
may be, as agreed upon by
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the Borrowers and the Bank or Banks providing the Incremental Commitment
relating thereto as provided in Section 2.16(a), or if not agreed upon, as
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provided in Section 2.16(b).
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"Assignee" has the meaning specified in Section 12.07(a).
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"Assignment and Assumption" means an Assignment and Assumption,
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substantially in the form of Exhibit A.
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"Attorney Costs" means and includes all reasonable documented fees and
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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
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any validation or exemption, approval, order, authorization, consent, License,
certificate, franchise and permit from, any Governmental Authority, including,
without limitation, FCC Licenses.
"Available Commitment" means, at any time as to any Bank, an amount
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equal to the excess, if any, of (i) the amount of the Commitment of such Bank at
such time over (ii) the sum of the outstanding principal balances of all Loans
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of such Bank plus the sum of all participations of such Bank in Letter of Credit
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Obligations at such time.
"Bank Affiliate" means a Person engaged primarily in the business of
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commercial banking that is an Affiliate of a Bank.
"Bank of America" means Bank of America, N.A., a national banking
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association.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
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U.S.C. (S) 101, et seq.).
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"Banks" has the meaning specified in the Preamble hereto and such term
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shall also include the Issuing Bank.
"Base Rate" means, for any day, the higher of (i) the Reference Rate
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or (ii) the Federal Funds Rate plus 1/2%, in each case as in effect for such
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day.
"Base Rate Loan" means any Loan that bears an interest rate based on
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the Base Rate.
"Bastet" has the meaning specified in the Preamble hereto.
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"Bastet/Mission Entity" means each Borrower and any Person which is a
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direct or indirect Subsidiary of any Borrower.
"Bastet/Mission Guaranty of Nexstar Obligations" means that certain
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Guaranty Agreement, dated as of the Effective Date, executed and delivered by
the Borrowers in favor of the Nexstar Banks, whereby the Borrowers guaranty the
obligations of the Nexstar Entities under the Nexstar Loan Documents.
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"Board" means the Board of Governors of the Federal Reserve System of
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the United States (or any successor).
"Board of Directors" means, as to any Person, either (a) the board of
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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
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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.
"Borrowers" means each of Bastet and Mission Wichita Falls and any
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other Person that becomes a Borrower pursuant to Section 12.16.
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"Borrowing" has the meaning provided in Section 1.04.
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"Borrowing Date" means, in relation to any Loan, the date of the
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borrowing of such Loan as specified in the relevant Notice of Borrowing for a
Borrowing.
"Business Day" means any day other than a Saturday, Sunday or other
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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
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directive of any central bank or other Governmental Authority, or any other law,
rule or regulation, whether or not having the force of law, regarding capital
adequacy of any bank or of any corporation controlling a bank.
"Capital Expenditures" means, for any period and with respect to any
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Person, the aggregate of all expenditures by such Person and its Subsidiaries
with respect to such period which should be capitalized according to GAAP on a
consolidated balance sheet of such Person and its Subsidiaries, including all
expenditures with respect to fixed or capital assets which should be so
capitalized and, without duplication, the amount of all Capital Lease
Obligations; it being understood that "Capital Expenditures" shall not include,
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without duplication, payments made or accrued in respect of Film Obligations or
Consolidation Expenses.
"Capital Lease" has the meaning specified in the definition of
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"Capital Lease Obligations".
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"Capital Lease Obligations" means, with respect to any Person, all
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monetary obligations of such Person under any leasing or similar arrangement
which, in accordance with GAAP, is classified as a capital lease (a "Capital
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Lease").
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"Capital Stock" means (i) any capital stock, partnership, membership,
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joint venture or other ownership or equity interest, participation or securities
(whether voting or non-
4
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
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deposit with or deliver to the Administrative Agent, for the benefit of the
Administrative Agent, the Issuing Bank and the Banks, as collateral for the
Letter of Credit Obligations, cash or deposit account balances of such Person
pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the Issuing Bank (which documents are hereby consented
to by the Banks). Derivatives of such term shall have corresponding meanings.
Each of the Borrowers 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 such Borrower. Cash Collateral
shall be invested in Cash Equivalents of a tenor satisfactory to the
Administrative Agent and as instructed by such Borrower, which Cash Equivalents
shall be held in the name of such 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
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of, or guaranteed as to interest and principal by, the United States government
maturing within one year after the date on which such obligations are purchased;
(ii) open market commercial paper of any corporation (other than any Borrower or
any Affiliate of any 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
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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
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investments described in clauses (i) through (iv).
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"Change of Control" means that ▇▇▇▇▇ ▇▇▇▇▇, his spouse and their
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respective estates, taken together, shall cease to hold directly or indirectly
100% of the voting and economic interest of each of the Borrowers, provided that
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a transfer of Capital Stock of any Borrower to ▇▇▇▇ ▇.▇. II, ▇▇▇▇ ▇.▇. III or
any of their respective Affiliates shall not constitute a "Change of Control".
"Charter Documents" means, with respect to any Person, (i) the
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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.
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"Code" means the Internal Revenue Code of 1986, as amended from time
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to time, and any regulations promulgated thereunder.
"Collateral" means the Pledged Collateral, the Security Agreement
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Collateral and the Mortgaged Properties.
"Collateral Agent" means the Administrative Agent acting as collateral
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agent pursuant to the Security Documents.
"Combined Commitment" means, for each Bank, the sum of its Commitment
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and any Incremental Commitment of such Bank issued after the Effective Date
pursuant to Section 2.01(b) and Section 2.16.
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"Commitment" means, as to any Bank, the obligation of such Bank, if
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any, to make Loans (other than Incremental Loans) to, and issue or participate
in Letter of Credit Obligations on behalf of, the Borrowers hereunder in an
aggregate principal amount not to exceed at any one time the amount set forth
opposite such Bank's name on Schedule 2.01 or, in the case of any Bank that is
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an Assignee, the amount of the Commitment of the assigning Bank which is
assigned to such Assignee in accordance with Section 12.07 and set forth in the
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applicable Assignment and Assumption (in each case as the same may be adjusted
from time to time as provided herein).
"Commitment Fee" has the meaning specified in Section 2.09(a).
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"Commitment Percentage" means, as to any Bank at any time, (i) the
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percentage which the amount of such Bank's Commitment then constitutes of the
Aggregate Combined Commitment or, (ii) at any time after the Commitments shall
have expired or terminated, the percentage which the aggregate principal amount
of such Bank's then outstanding Loans made under its Commitment constitutes of
the aggregate principal amount of all then outstanding Loans made under all
Commitments; provided that in the event that the Loans made under the
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Commitments are paid in full prior to the reduction to zero of the Aggregate
Commitment, the Commitment Percentages shall be determined in a manner designed
to ensure that the other outstanding Extensions of Credit shall be allocated to
the Banks which have Commitments on a comparable basis.
"Commitment Period" means the period from and including the Effective
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Date (with respect to the Commitments) or the effective date of the relevant
Incremental Loan Amendment (with respect to each Incremental Commitment), as
applicable, to but not including the Maturity Date.
"Communications Act" has the meaning specified in Section 6.16.
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"Consolidated Amortization Expense" means, for any period, for any
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Person, the consolidated amortization expense (including amortization of Film
Obligations and goodwill) of such Person and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
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"Consolidated Depreciation Expense" means, for any period, for any
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Person, the depreciation expense of such Person and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Leverage Ratio" means, on any date, the
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"Consolidated Total Leverage Ratio" determined under the Nexstar Credit
Agreement as of such date.
"Continuation Date" means any date as of which the Borrowers elect to
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continue a Eurodollar Loan as a Eurodollar Loan for a further Interest Period in
accordance with the provisions of Section 2.04.
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"Contractual Obligations" means, as to any Person, any provision of
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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 Borrowers elect to
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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.
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"Credit Event" means the making of any Loan or the issuance of any
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Letter of Credit.
"Credit Parties" means the collective reference to the Borrowers, the
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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 ▇▇▇▇▇ ▇▇▇▇▇
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will not be deemed to be a "Credit Party".
"Default" means any event or circumstance which, with the giving of
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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).
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"Disposition" means the direct or indirect sale, assignment, lease (as
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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
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and conditions satisfactory to the Majority Banks and the Administrative Agent),
in a single transaction or a series of related transactions, by any
Bastet/Mission Entity to any Person (other than to a Borrower or any Wholly-
Owned Subsidiary of a Borrower) of any assets or property, excluding (i) assets
or property disposed of in the ordinary course of business and (ii) inventory,
Real Property or equipment no longer used or useful in the business of such
Bastet/Mission Entity; provided that in any event the term "Disposition" shall
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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 Bastet/Mission Entity
including, without limitation, any Station of any
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such Bastet/Mission Entity or the Capital Stock of any Subsidiary of any
Bastet/Mission Entity. The terms "Dispose" and "Disposed of" shall have
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correlative meanings.
"Disqualified Stock" means any Capital Stock which, by its terms (or
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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
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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.
"Documentation Agent" means First Union National Bank, in its capacity
-------------------
as Documentation Agent for the Banks hereunder, and any successor to such agent.
"Dollars" and "$" each mean lawful money of the United States.
------- -
"Domestic Lending Office" shall have the meaning provided in the
-----------------------
definition of "Lending Office".
--------------
"Effective Date" has the meaning specified in Section 12.15.
-------------- -------------
"Eligible Assignee" means and includes a commercial bank, financial
-----------------
institution or other "accredited investor" (as defined in Regulation D of the
Securities Act of 1933).
"Environmental Claim" means any and all administrative, regulatory or
-------------------
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations or proceedings relating in any way to
any violation of, or liability under, any Environmental Law or any permit
issued, or any approval given, under any such Environmental Law (hereafter,
"Claims"), including, without limitation, (i) any and all Claims by governmental
------
or regulatory authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any applicable Environmental Law, and
(ii) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from
Hazardous Materials arising from alleged injury or threat of injury to health,
safety or the environment.
"Environmental Law" means the Comprehensive Environmental Response,
-----------------
Compensation and Liability Act, any so-called "Superfund" or any other
applicable Federal, state, local or other statute, law, ordinance, code, rule,
regulation, order or decree, as now or at any time hereafter in effect,
regulating, relating to, or imposing liability concerning the environment, the
impact of the environment on human health, or any hazardous or toxic waste,
substance or material or pollutant or contaminant.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
-----
the rules and regulations promulgated thereunder as from time to time in effect.
8
"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 any 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 any Borrower or any of its Subsidiaries;
(iii) a complete or partial withdrawal by any 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 any 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 any 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 any 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 any
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.
"Eurocurrency Reserve Requirements" means, for any day as applied to a
---------------------------------
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including, without limitation, basic, marginal, special, supplemental, or
emergency reserves) under any regulations issued from time to time by the Board
or other Governmental Authority having jurisdiction with respect thereto dealing
with reserve requirements prescribed for Eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System. Without limiting the
effect of the foregoing, the Eurocurrency Reserve Requirements shall reflect any
other reserves required to be maintained by such member banks with respect to
(i) any category of liabilities which includes deposits by reference to which
the Eurodollar Rate is to be determined, or (ii) any category of extensions of
credit or other assets which include Eurodollar Loans. The Eurodollar Rate
shall be adjusted automatically on and as of the effective date of any change in
the Eurocurrency Reserve Requirements.
9
"Eurodollar Base Rate" means, for any Eurodollar Loan for any Interest
--------------------
Period therefor to be determined on any Interest Rate Determination Date, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 A.M. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "Eurodollar Base Rate" shall mean, for any Eurodollar Loan
--------------------
for any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as
the London interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided that if more than
--------
one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates (rounded upwards, if necessary, to the
nearest 1/100 of 1%).
"Eurodollar Lending Office" shall have the meaning provided 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, with respect to each day during each Interest
---------------
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward to the nearest
1/100/th/ of 1%):
Eurodollar Base Rate
-----------------------------------------
1.00 - Eurocurrency Reserve Requirements.
"Event of Default" means any of the events or circumstances specified
----------------
in Section 9.01.
------------
"Excess Cash Flow" means for any Person for any period,
----------------
(a) the sum for such period of (i) Net Income; plus (ii) Consolidated
----
Amortization Expense and Consolidated Depreciation Expense, in each case to the
extent deducted in determining such Net Income; plus (iii) non-cash charges, to
----
the extent deducted in determining such Net Income; less
----
(b) the sum for such period of: (i) Capital Expenditures made by such
Person and its consolidated Subsidiaries and payments accrued or becoming due
and payable during such period (without duplication) by such Person and its
consolidated Subsidiaries in respect of Film Obligations; plus (ii)(A) Adjusted
----
Working Capital of such Person as determined on the last day of such period
minus (B) Adjusted Working Capital of such Person as determined on the first day
-----
of such period; plus (iii) regularly scheduled payments of principal and
----
voluntary prepayments of principal of (x) Loans, to the extent accompanied by a
Commitment or Incremental Commitment reduction, and (y) other Indebtedness by
such Person and its consolidated Subsidiaries to the extent not prohibited
hereunder; plus (iv) all Restricted Payments paid by such Person or any of its
----
consolidated Subsidiaries (other than to such Person
10
or any such Subsidiary) pursuant to Section 8.10; plus (v) all non-cash revenues
------------
and gains, to the extent included in determining such Net Income; plus (vi)
----
gains realized in respect of Dispositions, to the extent included in determining
such Net Income.
"Existing Credit Agreement" means that certain Amended and Restated
-------------------------
Credit Agreement dated as of June 1, 1999, among Bastet and Mission Wichita
Falls, as borrowers, the financial institutions from time to time parties
thereto and NationsBank, N.A., as the administrative agent, NationsBank, N.A.
and Bank of America Savings and Trust Association, as the issuing banks, First
Union National Bank, as the syndication agent, and Bank Boston, N.A., as the
documentation agent, as amended.
"Existing Nexstar Credit Agreement" means that certain Second Amended
---------------------------------
and Restated Credit Agreement dated as of June 1, 1999, among the Ultimate
Nexstar Parent, the other Nexstar Entities parties thereto, the several
financial institutions parties thereto, NationsBank, N.A., as the administrative
agent, NationsBank, N.A. and Bank of America National Trust and Savings
Association, as the issuing banks, First Union National Bank, as the syndication
agent, and Bank Boston, N.A., as the documentation agent, as amended.
"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 Loans held by such
Bank then outstanding plus (ii) the amount of such Bank's participations in
----
Letter of Credit Obligations.
"Facility Percentage" means, as to any Bank at any time, (i) the
-------------------
percentage which (x) the sum of the amount of such Bank's Commitment plus the
----
amount of all such Bank's Incremental Commitments, if any, then constitutes of
(y) the sum of the amount of the Aggregate Commitment plus the amount of the
----
Aggregate Incremental Commitment, or at any time after the Commitments and the
Incremental Commitments have expired or terminated, (ii) the percentage which
the aggregate principal amount of such Bank's Loans then outstanding constitutes
of the aggregate principal amount of all Loans then outstanding; provided that
--------
in the event that the Loans made under the Commitments are paid in full prior to
the reduction to zero of the Aggregate Commitment, the Facility Percentages
shall be determined in a manner designed to ensure that the other outstanding
Extensions of Credit shall be allocated to Banks which have Commitments on a
comparable basis.
"FCC" means the Federal Communications Commission.
---
"FCC License" has the meaning provided in Section 6.16.
----------- ------------
"Federal Funds Rate" means, for any day, the rate set forth in the
------------------
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
---------
(Effective)." If on any relevant day the appropriate rate for such previous day
is not yet published in H.15(519), the rate for such day will be the arithmetic
mean of the rates for the last transaction in overnight federal funds arranged
prior to 9:00 a.m. (New York City time) on that day by each of three leading
brokers of federal funds transactions in New York City selected by the
Administrative Agent.
11
"Federal Reserve Board" means the Board of Governors of the Federal
---------------------
Reserve System or any successor thereto.
"Film Cash Payments" means, for any period for any Person, the sum
------------------
(determined on a consolidated basis and without duplication) of all payments by
such Person and its Subsidiaries accrued or becoming due and payable during such
period (without duplication) in respect of Film Obligations; provided that
--------
amounts applied to the prepayment of Film Obligations owing under Prepayable
Film Contracts shall not be deemed to be Film Cash Payments.
"Film Obligations" means obligations in respect of the purchase, use,
----------------
license or acquisition of programs, programming materials, films, and similar
assets used in connection with the business and operations of the Borrowers and
their respective Subsidiaries.
"Fiscal Quarter" means each of the following quarterly periods: (i)
--------------
January 1 of each calendar year through and including March 31 of each calendar
year, (ii) April 1 of each calendar year through and including June 30 of each
calendar year, (iii) July 1 of each calendar year through and including
September 30 of each calendar year and (iv) October 1 through and including
December 31 of each calendar year.
"Fiscal Year" means a calendar year.
-----------
"Form W-8BEN" has the meaning specified in Section 4.01(e)(i).
----------- ------------------
"Form W-8ECI" has the meaning specified in Section 4.01(e)(i).
----------- ------------------
"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.
"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 X 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 X of this Agreement.
12
"Guarantor" means (i) each Credit Party which is a party to a Guaranty
---------
Agreement and (ii) each Borrower, as a Guarantor Party under Article X of this
Agreement.
"Guarantor Party" means each Borrower, with respect to its Guaranty
---------------
Obligations under Article X of this Agreement.
"Guaranty Agreements" means the collective reference to the Nexstar
-------------------
Guaranty Agreement, the Subsidiary Guaranty Agreement, the Bastet/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,
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 the collective reference to each of the
--------------------
Guaranty Supplements which are attached to each of the Guaranty Agreements as
Annex A to each such Guaranty Agreement.
"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.
13
"Incremental Bank" means each Bank that has an Incremental Commitment
----------------
or that is a holder of an Incremental Loan.
"Incremental Commitment" has the meaning specified in Section 2.16(a).
---------------------- ---------------
"Incremental Commitment Fee" has the meaning specified in Section
-------------------------- -------
2.16(a).
-------
"Incremental Facility" means an aggregation of Incremental Commitments
--------------------
of one or more Banks which are made available to the Borrowers and become
effective on the same date pursuant to the same Incremental Loan Amendment.
"Incremental Loan" has the meaning specified in Section 2.01(b)(i).
---------------- ------------------
"Incremental Loan Amendment" has the meaning specified in Section
-------------------------- -------
2.01(b)(i).
----------
"Incremental Margin" has the meaning specified in Section 2.16(a).
------------------ ---------------
"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 provided in Section 12.05.
----------------------- -------------
"Indemnified Person" has the meaning provided in Section 12.05.
------------------ -------------
"Initial Borrowing Date" means the date, occurring on the Effective
----------------------
Date, on which the initial Credit Event occurs.
14
"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 provided 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".
---------------------
"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 Borrowers and the consent of each Bank, 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 Borrowers in
its Notice of Borrowing or Notice of Conversion/Continuation; provided that:
--------
(i) if any Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the calendar month which is one, two,
three, six, nine or twelve months, as the case may be, after the calendar
month in which such Interest Period began; and
(iii) no Interest Period for any Loan shall extend beyond the
Maturity Date.
"Interest Rate Determination Date" means each date for calculating the
--------------------------------
Eurodollar Base Rate for purposes of determining the interest rate in respect of
an Interest Period. The Interest Rate Determination Date shall be the second
Business Day prior to the first day of the related Interest Period.
"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).
15
"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 Bastet/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 Bastet/Mission Entity
becomes a party to, and assumes all obligations of, a grantor under the Security
Agreement.
"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.
"Lead Arranger and Book Manager" means Bank of America Securities LLC,
------------------------------
in its capacity as Lead Arranger and Book Manager.
"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
------ ------------------------- -------------
hereto, or such other office or offices of the Bank as it may from time to time
notify the Borrowers and the Administrative Agent.
"Letter of Credit" means any letter of credit issued (or deemed
----------------
issued) by the Issuing Bank pursuant to Article III.
-----------
"Letter of Credit Amendment Application" means an application form for
--------------------------------------
amendment of outstanding standby or commercial documentary letters of credit as
shall at any time be in use by the Issuing Bank, as the Issuing Bank shall
request.
"Letter of Credit Application" means an application form for issuances
----------------------------
of standby or commercial documentary letters of credit as shall at any time be
in use at the Issuing Bank, as the Issuing Bank shall request.
"Letter of Credit Borrowing" means an extension of credit resulting
--------------------------
from a drawing under any Letter of Credit which shall not have been reimbursed
on the Disbursement Date of such draw.
"Letter of Credit Commitment" means the agreement of the Issuing Bank
---------------------------
to issue Letters of Credit subject and pursuant to the terms and conditions of
this Agreement; provided
--------
16
that the sum of all the Letter of Credit Obligations on any date outstanding may
not exceed the lesser of (i) the Aggregate Commitment on such date and (ii)
$5,000,000.
"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 the 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.
"Loan" has the meaning set forth in Section 2.01(a), as modified by
---- ---------------
Section 2.01(b).
---------------
"Loan Documents" means this Agreement (including the Guaranty set
--------------
forth in Article X hereof), all Guaranty Agreements, all Security Documents, all
---------
Letter of Credit Related Documents, any notes executed and delivered pursuant to
Section 2.02(b), 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 or any other Loan Document and all other written agreements,
documents,
17
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.
"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%.
"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 Borrowers and their respective Subsidiaries
taken as a whole, (ii) the ability of any Credit Party to perform its
obligations under the Loan Documents to which it is a party or (iii) the
validity or enforceability of this Agreement or any other Loan Document or the
rights and remedies of the Administrative Agent or the Banks under this
Agreement or any of the other Loan Documents.
"Maturity Date" means the earlier of (i) the Stated Maturity Date and
-------------
(ii) the date on which the Loans become due and payable in full pursuant to
acceleration or otherwise.
"Maximum Incremental Amount" means $20,000,000.
--------------------------
"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.
--------------- ---
"Midwest Acquisition" means the acquisition by certain Nexstar
-------------------
Entities of the FCC licenses for television stations WCIA, WCFN and WMBD and
certain related assets pursuant to the Midwest Acquisition Documents.
18
"Midwest Acquisition Documents" means Asset Purchase Agreement by and
-----------------------------
among Nexstar Broadcasting of Champaign, L.L.C., Nexstar Broadcasting of Peoria,
L.L.C., Midwest Television, Inc., MWT-N, LLC and MWT-D, LLC, dated as of July
12, 1999, and each document delivered pursuant thereto or in connection
therewith.
"Mission Wichita Falls" has the meaning specified in the Preamble
---------------------
hereto.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and its successors.
-------
"Mortgage Policies" mean the Mortgage Policies under, and as defined
-----------------
in, the Existing Credit Agreement.
"Mortgaged Properties" mean all Real Property owned or leased by any
--------------------
Bastet/Mission Entity listed on Schedule 6.09 and designated as "Mortgaged
------------- ---------
Properties" therein.
----------
"Mortgages" mean all Mortgages (as defined in the Existing Credit
---------
Agreement) granted by any Bastet/Mission Entity pursuant to the Existing Credit
Agreement (or any predecessor credit agreement which was amended and restated by
the Existing 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 Borrower, any of its
Subsidiaries 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 of such cash
proceeds which the Borrowers determine in good faith should be reserved for
post-closing adjustments or liabilities (to the extent that the Borrowers
deliver to the Administrative Agent a certificate signed by a Responsible
Officer as to such determination), 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 Bastet/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 such Bastet/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 Bastet/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 Bastet/Mission Entity, (i) the gross cash proceeds
received in connection
19
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 Bastet/Mission Entity or an Affiliate thereof), satisfactorily
documented and paid (whether on behalf of such Bastet/Mission Entity or an
Affiliate thereof) to any Person not an Affiliate of a Bastet/Mission Entity.
"Net Income" means, for any Measurement Period, the net income (or net
----------
loss) of a Person and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Net Issuance Proceeds" means, with respect to the sale or issuance of
---------------------
Capital Stock, or any capital contribution to, any Bastet/Mission Entity from a
source other than a Borrower, (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 Bastet/Mission Entity or an Affiliate
thereof), satisfactorily documented and paid (whether on behalf of such
Bastet/Mission Entity or an Affiliate thereof) to any Person not an Affiliate of
a Bastet/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 Credit Agreement" has the meaning provided in Section
------------------------ -------
5.02(a).
-------
"Nexstar Entity" means the Ultimate Nexstar Parent and any of its
--------------
direct or indirect Subsidiaries.
"Nexstar Facility Percentage" means the "Facility Percentage" as that
---------------------------
term is defined in the Nexstar Credit Agreement.
"Nexstar Finance" means Nexstar Finance, L.L.C., a Delaware limited
---------------
liability company and a Nexstar Entity.
"Nexstar Finance Holdings" means Nexstar Finance Holdings, L.L.C., a
------------------------
Delaware limited liability company and a Nexstar Entity.
"Nexstar Finance Holdings Bridge" has the meaning provided in Section
------------------------------- -------
5.02(g).
-------
20
"Nexstar Guaranty Agreement" means that certain Guaranty Agreement,
--------------------------
dated as of the Effective Date, executed and delivered by the Nexstar Entities
in favor of the Banks in substantially the form of Exhibit B, whereby the
---------
Nexstar Entities guaranty the Obligations.
"Nexstar Loan Documents" means the "Loan Documents" as that term is
----------------------
defined in the Nexstar Credit Agreement.
"Nexstar Management Loan" shall mean loans, not to exceed $3,000,000
-----------------------
in aggregate principal amount, made by Bank of America in its individual
capacity to ▇▇▇▇▇ ▇▇▇▇, the proceeds of which loans that have been made were,
and loans which may be made will be, used by ▇▇▇▇▇ ▇▇▇▇ in part to invest in the
Ultimate Nexstar Parent or to pay interest on any such loan.
"Notice of Borrowing" means a notice given by the Borrowers to the
-------------------
Administrative Agent pursuant to Section 2.03(a), in substantially the form of
---------------
Exhibit C.
---------
"Notice of Conversion/Continuation" means a notice given by the
---------------------------------
Borrowers to the Administrative Agent pursuant to Section 2.04(b), in
---------------
substantially the form of Exhibit D.
---------
"Obligations" means the unpaid principal of and interest on
-----------
(including, without limitation, interest accruing after the maturity of the
Loans and Reimbursement Obligations and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Credit Party, whether or not
a claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans and all other obligations and liabilities of any Credit Party to the
Administrative Agent or to any Bank (or, in the case of any Interest Rate
Protection Agreement, any Affiliate of any Bank), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this Agreement,
any other Loan Document, or any other document made, delivered or given in
connection with any of the foregoing, whether on account of principal, interest,
Guaranty Obligations, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees, charges and disbursements of
counsel to the Administrative Agent 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.
"Originating Bank" has the meaning provided in Section 12.07(d).
---------------- ----------------
"Other Taxes" has the meaning specified in Section 4.01(b).
----------- ---------------
"Participant" has the meaning specified in Section 12.07(d).
----------- ----------------
"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 any Borrower, any Subsidiary of any
Borrower or any ERISA Affiliate sponsors or maintains, or to which it makes, is
making, or is obligated to make
21
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 Liens" has the meaning provided in Section 8.02.
--------------- ------------
"Permitted Nexstar Finance Holdings Preferred Equity" means the
---------------------------------------------------
"Permitted Holdings Preferred Equity" as that term is defined in the Nexstar
Credit Agreement.
"Permitted Seller Subordinated Indebtedness" means subordinated
------------------------------------------
Indebtedness of any Bastet/Mission Entity incurred in connection with a purchase
or acquisition permitted under Section 8.04(d) and owed to a seller thereof or
---------------
other party thereto as partial or full consideration therefor, on terms and
conditions reasonably acceptable to the Administrative Agent and the Majority
Banks.
"Person" means any natural person, corporation, firm, trust,
------
partnership, business trust, association, government, governmental agency or
authority, or any other entity, whether acting in an individual, fiduciary, or
other capacity.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
----
ERISA) which any Borrower, any Subsidiary of any Borrower or any ERISA Affiliate
sponsors or maintains or to which any Borrower, any such Subsidiary 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 and Security Agreement, in
----------------
substantially the form of Exhibit E, pursuant to which each Bastet/Mission
---------
Entity has pledged or collaterally assigned, or is required to pledge or
collateral assign, 100% of the Capital Stock of each of its Subsidiaries,
including any such Subsidiaries organized or acquired after the Effective Date,
and any intercompany notes held by such Bastet/Mission Entity.
"Pledged Collateral" has the meaning specified in the Pledge Agreement
------------------
or the ▇▇▇▇▇ Pledge Agreement, as applicable.
"Prepayable Film Contract" means a contract evidencing a Film
------------------------
Obligation in which the amount owed by a Person or any of its Subsidiaries under
such contract exceeds the remaining value of such contract to such Person or
such Subsidiary, as reasonably determined by such Person.
"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.
"Qualified Issuance" 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.
22
"Recovery Event" means the receipt by any Bastet/Mission Entity of any
--------------
insurance 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 such Bastet/Mission Entity.
"Reference Rate" means the rate of interest publicly announced from
--------------
time to time by Bank of America in Dallas, Texas as its "reference rate". It 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 the Reference 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.
"Reimbursement and Contribution Agreements" shall mean those certain
-----------------------------------------
Reimbursement and Contribution Agreements, each in form, scope and substance
satisfactory to the Administrative Agent and the Banks, entered into by various
Credit Parties as more fully set forth in Section 5.01(m) with respect to
---------------
certain reimbursement and contribution rights and obligations among such Credit
Parties in respect of their respective Guaranty Obligations under the Guaranty
Agreements.
"Reimbursement Obligations" means the obligation of the Borrowers 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 Bastet/Mission Entities as described in Section 8.01.
------------
"Reinvestment Election" has the meaning provided in Section
--------------------- -------
2.07(b)(i).
----------
"Reinvestment Notice" means a written notice signed by a Responsible
-------------------
Officer of a Borrower stating that such Borrower in good faith, intends and
expects to use, or to cause a Subsidiary of such 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
a 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 Borrowers, 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 a Borrower or any of its
23
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 Bastet/Mission Entity in
respect of any principal of or interest on any Indebtedness other than
Indebtedness incurred in accordance with any of Sections 8.05(a) through (e),
---------------- ---
(g) and (h).
--- ---
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw-
---
Hill 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, substantially in
------------------
the form of Exhibit F, pursuant to which each Bastet/Mission Entity has granted
---------
security interests in its assets.
"Security Agreement Collateral" has the meaning provided 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,
24
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 in
----------------------
substantially the form of Exhibit G, pursuant to which ▇▇▇▇▇ ▇▇▇▇▇, the sole
---------
shareholder of Bastet and Mission, has pledged or collaterally assigned, or is
required to pledge or collateral assign, 100% of the Capital Stock of each of
the Borrowers, including any Persons that become Borrowers after the Effective
Date pursuant to Section 12.16.
-------------
"Solvency Certificate" means a certificate, signed by a Responsible
--------------------
Officer of each Borrower, substantially in the form of Exhibit H.
---------
"Solvent" means, when used with respect to any Person, means that, as
-------
of any date of determination, (i) 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, (ii) 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, (iii) such Person
will not have, as of such date, an unreasonably small amount of capital with
which to conduct its business, and (iv) such Person will be able to pay its
debts as they mature. For purposes of this definition, (A) "debt" means
liability on a "claim," (B) "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 (C) unliquidated,
contingent, disputed and unmatured claims shall be valued at the amount that can
be reasonably expected to be actual and matured.
25
"Stated Maturity Date" means the sixth anniversary of the Effective
--------------------
Date.
"Station" means, at any time, collectively, (i) each television
-------
station listed in Schedule 6.16 hereto, (ii) any television station licensed by
-------------
the FCC to any Borrower or any Subsidiary of a Borrower on, or at any time
after, the Effective Date and (iii) any television station that is the subject
of a purchase, acquisition, Local Marketing Agreement, Joint Sales Agreement or
Shared Services Agreement consented to by the Majority Banks or otherwise
permitted under Section 8.04(d).
---------------
"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 Guaranty Agreement" means a Subsidiary Guaranty Agreement,
-----------------------------
substantially in the form of Exhibit I, as the same may be amended, supplemented
---------
and/or modified from time to time.
"Syndication Agent" means Barclays Bank PLC, in its capacity as
-----------------
Syndication Agent for the Banks hereunder, and any successor to such agent..
"Taxes" has the meaning provided 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 Bastet/Mission Entity, to the extent
------------------
such Person owns or operates a Station.
"Tranche" means the collective reference to Eurodollar Loans made by
-------
the Banks to the Borrowers, 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 Borrowers and the payment in full
and termination of the Existing Credit Agreement.
"Transferee" has the meaning specified in Section 12.08.
---------- -------------
26
"Ultimate Nexstar Parent" means Nexstar Broadcasting Group, L.L.C., a
-----------------------
Delaware limited liability company.
"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 capital stock (other than director's or other qualifying shares)
is at the time owned by such Person and/or one or more direct or indirect
Wholly-Owned Subsidiaries of such Person and (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 meaning of defined terms
shall be equally applicable to the singular and plural forms of the defined
terms.
(b) The words "hereof", "herein", "hereunder" and words of
------ ------ ---------
similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(c) The term "documents" includes any and all instruments,
---------
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(d) The terms "including" or "include" are not limiting and mean
--------- -------
"including without limitation" or "include without limitation".
(e) References in this Agreement or any other Loan Document to
knowledge by any Credit Party of events or circumstances shall be deemed to
refer to events or circumstances of which a Responsible Officer of such
Person has actual knowledge or reasonably should have knowledge.
(f) References in this Agreement or any other Loan Document to
financial statements shall be deemed to include all related schedules and
notes thereto.
(g) Except as otherwise specified herein, all references to any
Governmental Authority or Requirement of Law defined or referred to herein
shall be deemed references to such Governmental Authority or Requirement of
Law or any
27
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
subsequent 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 clearly requires, all financial computations
required under this Agreement shall be made in accordance with GAAP; provided
--------
that if any Borrower notifies the Administrative Agent that such 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 any
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 such Borrower and the
Majority Banks.
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
Borrowers 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
------ ---- -----
28
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 Commitment or a
Loan made under the Commitments or (b) an Incremental Commitment relating to a
specified Incremental Facility or an Incremental Loan made under such
Incremental Facility, each of which constitutes a "Class". The "Type" of a Loan
----- ----
refers to the determination of 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 Loan", indicates that such
Loan is both an Incremental 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 Loans. Each Bank severally agrees, subject to the terms
---------
and conditions hereinafter set forth, to make revolving loans (each, a
"Loan") to the Borrowers from time to time on any Business Day, during the
----
Commitment Period, in an aggregate principal amount not to exceed at any
time outstanding the Commitment of such Bank; provided, however, that after
--------
giving effect to any Loan made under a Commitment, the aggregate principal
amount of all outstanding Loans made under the Commitments plus the
----
aggregate amount of all outstanding Letter of Credit Obligations shall not
exceed the Aggregate Commitment. Within such limits, and subject to the
other terms and conditions hereof, the Borrowers may borrow Loans under
this Section 2.01(a), prepay Loans pursuant to Section 2.06 or 2.07(a)(i)
--------------- ------------ ----------
and reborrow Loans pursuant to this Section 2.01(a). Loans may from time
---------------
to time be (i) Eurodollar Loans or (ii) Base Rate Loans or a combination
thereof, as determined by the Borrowers pursuant to Section 2.03(b) and
---------------
Section 2.04.
------------
(b) 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 December
31, 2002, the Borrowers may request pursuant to the procedure set
forth in Section 2.16, the addition of an Incremental Facility
------------
consisting of a new tranche of revolving loans (each, an "Incremental
-----------
Loan"); provided, however, that the Borrowers may not make a request
---- --------
for an Incremental Facility if after giving effect thereto the sum of
all then outstanding Incremental Loans (and unused Incremental
Commitments therefor) would exceed the then Maximum Incremental
Amount. Each Incremental Loan shall: (A) unless otherwise
specifically provided in this Agreement, upon the effectiveness of the
Incremental Commitment relating thereto as provided in Section
-------
2.01(b)(ii), be deemed to be a Loan 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; (B) have such pricing as may be agreed by
the Borrowers and the Banks agreeing to provide such Incremental Loans
pursuant to
29
the provisions of this Section 2.01(b) and Section 2.16 and (C)
--------------- ------------
otherwise have all of the same terms and conditions as the loans that
are not Incremental Loans. In addition, unless otherwise
specifically provided in this Agreement, all references in the Loan
Documents to Loans shall be deemed to include references to
Incremental Loans 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 Incremental
Commitments under this Agreement pursuant to (x) an amendment (each,
an "Incremental Loan Amendment") to this Agreement executed by the
--------------------------
Borrowers, 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 satisfaction on the date thereof and, if different, on the date on
which the Incremental Loans are made, of each of the conditions set
forth in Section 5.03.
------------
(ii) So long as (x) the Borrowers 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 Commitment shall
have become a Bank under this Agreement pursuant to an Incremental
Loan Amendment, the Incremental Commitment being requested by the
Borrowers 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
Commitments shall be deemed to have agreed, severally and not jointly,
upon the terms and subject to the conditions of this Agreement, 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 Loans to the Borrowers pursuant
to the provisions of Section 2.03 in an aggregate principal amount not
------------
exceeding at any time the Incremental Commitment of such Bank at such
time.
(c) Obligations Joint and Several. All Obligations of the
-----------------------------
Borrowers hereunder and under the other Loan Documents shall be joint and
several.
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,
30
absent manifest error, shall be conclusive as to the amount of the Loans
made by the Banks to the Borrowers, 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 Borrowers hereunder to pay any
amount owing with respect to the Loans.
(b) Notes. If requested by any Bank, the Borrowers 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 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 Loan Borrowings. Subject to the terms
-----------------------------
and conditions of this Agreement, the Borrowers may borrow under the
Commitments and/or under any Incremental Commitments comprising an
Incremental Facility then in effect, in each case on any Business Day
during the Commitment Period; provided that the Borrowers 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
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 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 Commitments
or under any Incremental Facility 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 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 Bank will make the amount of its pro rata share of
each requested Borrowing made under the Commitments and each relevant
Incremental Bank will make the amount of its pro rata share of each
requested Borrowing made under any applicable Incremental Facility
available to the Administrative Agent for the account of the Borrowers
at the Administrative Agent's Payment Office prior to 1:00 P.M.,
Dallas, Texas time on the Borrowing Date requested by the Borrowers in
funds immediately available to the Administrative Agent. Unless any
applicable condition of Article V has not been satisfied, the proceeds
---------
of such Borrowing or Borrowings will then be made available to the
Borrowers by the Administrative Agent by wire transfer in
31
accordance with written instructions provided to the Administrative
Agent by the Borrowers with the aggregate of the amounts made
available to the Administrative Agent by the Banks and/or the
applicable Incremental Banks, as the case may be, and in like funds as
received by the Administrative Agent.
(b) No Eurodollar Loans made during an Event of Default. During
---------------------------------------------------
the existence of an Event of Default, the Borrowers may not elect to have a
Loan be made as a Eurodollar Loan.
(c) 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 Borrowers may
------------------------------------
upon irrevocable written notice (or telephonic notice immediately confirmed
in writing) to the Administrative Agent in accordance with Section 2.04(b):
----------------
(i) elect to convert on any Business Day, any Base Rate Loans (or any part
thereof in an amount of not less than $1,000,000 or an integral multiple of
$500,000 in excess thereof) into Eurodollar Loans; (ii) elect to convert on
the last day of the Interest Period with respect thereto, any Eurodollar
Loans (or any part thereof in an amount of not less than $1,000,000 or an
integral multiple of $500,000 in excess thereof) into Base Rate Loans; or
(iii) elect to continue on the last day of the Interest Period with respect
thereto, any Eurodollar Loans (or any part thereof in an amount not less
than $1,000,000 or an integral multiple of $500,000 in excess thereof);
provided, however that if the aggregate amount of a Borrowing comprised of
--------
Eurodollar Loans shall have been reduced, by payment, prepayment, or
conversion of part thereof to be less than $500,000, the Eurodollar Loans
comprising such Borrowing shall automatically convert into Base Rate Loans
on the last day of the then-current Interest Period therefor, and on and
after such date the right of the Borrowers to continue such Loans as, and
convert such Loans into, Eurodollar Loans shall terminate.
(b) Notice of Conversion/Continuation. The Borrowers 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.
32
(c) Failure to Elect Interest Period. If upon the expiration of
--------------------------------
any Interest Period applicable to Eurodollar Loans, the Borrowers have
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 Borrowers, 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 Borrowers 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 Borrowers may, upon not less than five Business Days'
prior notice to the Administrative Agent, terminate or permanently reduce
the Aggregate 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 Loans made under
the Commitments which are made on the effective date thereof (x) the then
outstanding principal amount of all Loans made under the Commitments plus
----
the amount of the then outstanding Letter of Credit Obligations would
exceed the Aggregate 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 Commitment may not be
---------------
increased. Any reduction of the Aggregate Commitment pursuant to this
Section 2.05(a) shall be applied pro rata to each Bank's Commitment. All
---------------
accrued commitment and letter of credit fees to the effective date of any
reduction or termination of the Aggregate 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 Commitment.
(b) The Borrowers may, upon not less than five Business Days'
prior notice to the Administrative Agent, terminate or permanently reduce
the Incremental 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 Loans made under such Incremental Facility
which are made on the effective date thereof, the then outstanding
33
principal amount of the Incremental Loans made under such Incremental
Facility would exceed the total amount of such Incremental 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
---------------
Commitments may not be increased. Any reduction of Incremental Commitments
under an Incremental Facility pursuant to this Section 2.05(b) shall be
---------------
applied pro rata to each applicable Incremental Bank's Incremental
Commitment under such Incremental Facility. All accrued commitment fees to
the effective date of any such reduction or termination of Incremental
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
Commitments under an Incremental Facility.
(c) On each date after the Effective Date upon which a mandatory
prepayment of Loans pursuant to Section 2.07 is required, the Aggregate
------------
Combined Commitment shall also be automatically and permanently reduced by
the principal amount, if any, required to be paid on the Loans pursuant to
said Section. Any reduction of the Aggregate Combined Commitment pursuant
to this Section 2.05(c) shall be applied pro rata to each Bank's Commitment
---------------
and/or Incremental Commitments in accordance with such Bank's Facility
Percentage (and, in the case of a Bank with both a Commitment and one or
more Incremental Commitments, allocated ratably among such Bank's
Commitment and Incremental Commitment(s)). All accrued commitment and
letter of credit fees to the effective date of any such reduction of the
Aggregate Combined Commitment shall be paid on the effective date of such
reduction. The Administrative Agent shall promptly notify the affected
Banks of any such reduction or termination of the Aggregate Commitment.
2.06 Voluntary Prepayments.
---------------------
(a) The Borrowers may, prior to 11:00 A.M. Dallas, Texas time,
upon at least three Business Days' written notice by the Borrowers 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 Loans, as the Borrowers
may elect, in whole or in part, in amounts of $1,000,000 or an integral
multiple of $500,000 in excess thereof.
(b) Any notice of prepayment delivered pursuant to this Section
-------
2.06 shall specify the date and amount of such prepayment 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 Borrowers and not withdrawn,
the Borrowers 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.
34
2.07 Mandatory Prepayments.
---------------------
(a) (i) If on any date the aggregate unpaid principal amount
of outstanding Loans made under the 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 Commitment, then the Borrowers shall immediately
prepay the amount of such excess. Any payments on Loans made under
the Commitments pursuant to this Section 2.07(a)(i) shall be applied
------------------
pro rata among the Banks with Commitments.
(ii) If on any date the aggregate amount of all Letter of
Credit Obligations shall exceed the Letter of Credit Commitment, the
Borrowers 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 Loans made under an Incremental Facility
exceeds the aggregate amount of the Incremental Commitments relating
to such Incremental Facility, then the Borrowers shall immediately
prepay the amount of such excess. Any payments on Incremental 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 such Incremental Commitments with respect to
such Incremental Facility.
(b) (i) If on any date any Bastet/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 Loans on a pro rata basis, provided, that with
--- ---- --------
respect to no more than $1,000,000 in the aggregate of the Net Cash
Proceeds received in connection with any Disposition, the Net Cash
Proceeds therefrom shall not be required to be so applied if no
Default or Event of Default then exists and, provided further, that
--------
this requirement for mandatory prepayment will be further reduced to
the extent that the Borrowers elect, as hereinafter provided, to
attempt to cause some or all of such Net Cash Proceeds to be
reinvested in Reinvestment Assets. The Borrowers 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.
35
(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 Loans on a pro rata basis.
--- ----
(c) Within 90 days after any Bastet/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 Loans on a pro rata basis;
--- ----
provided that so long as no Default or Event of Default then exists, this
--------
requirement for mandatory prepayment shall be reduced by (i) any amounts
actually applied on or before such 90/th/ day or (ii) committed in writing
on or before such 90/th/ day to be applied to the replacement or
restoration of the assets subject to such Recovery Events within 365 days
after such Recovery Event and; provided further that with respect to no
--------
more than $1,000,000 in the aggregate of the proceeds received from any
Recovery Event, the proceeds therefrom shall not be required to be so
applied if no Default or Event of Default then exists.
(d) On each date which is 90 days after the last day of each
Fiscal Year commencing with the Fiscal Year ending on December 31, 2001, an
amount equal to 100% of the combined Excess Cash Flow of the Bastet/Mission
Entities for such Fiscal Year shall be applied to prepay the outstanding
principal of the Loans on a pro rata basis.
--- ----
(e) On the Business Day after the date of the receipt by any
Borrower or any of its Subsidiaries of Net Issuance Proceeds from any sale
or issuance of Capital Stock or any cash capital contribution (other than
such a Subsidiary's sale or issuance of Capital Stock to, or receipt of a
cash capital contribution from, such Borrower or its Subsidiaries), the
Borrowers shall prepay the outstanding principal of the Loans, on a pro
rata basis, in an amount equal to 100% of such Net Issuance Proceeds.
(f) If on any date any Bastet/Mission Entity shall incur or
issue any Indebtedness (other than Indebtedness permitted to be incurred or
issued under Section 8.05), then on such date an amount equal to the amount
------------
of the Net Debt Proceeds received with respect therefrom shall be applied
to prepay the outstanding principal of the Loans, on a pro rata basis.
(g) The Borrowers shall pay, together with each prepayment under
this Section 2.07, accrued interest on the amount prepaid and any amounts
------------
required pursuant to Section 4.04; provided that interest to be paid in
------------ --------
connection with any such prepayment of Base Rate Loans (other than a
prepayment in full) shall instead be paid on the next occurring Interest
Payment Date.
(h) Any prepayments pursuant to this Section 2.07 made on a day
------------
other than an Interest Payment Date for any Loan shall be applied first to
any Base Rate Loans then outstanding and then to Eurodollar Loans with the
shortest Interest Periods remaining.
36
2.08 Maturity of Loans.
-----------------
(a) Loans. Each Loan 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.
(b) Application of Loan Payments. Any payment made on Loans
----------------------------
pursuant to this Section 2.08, Section 2.06, or Sections 2.07(b), (c), (d),
------------ ------------ ---------------- --- ---
(e) or (f) shall be applied pro rata to each Bank's Loans in accordance
--- --- --------
with such Bank's Facility Percentage (and, in the case of a Bank with both
Incremental Loans and Loans that are not Incremental Loans, allocated
ratably among such Bank's Incremental Loans and Loans that are not
Incremental Loans).
2.09 Fees. In addition to fees described in Section 3.08:
---- ------------
(a) Commitment Fees.
---------------
(i) The Borrowers shall pay to the Administrative Agent
for the ratable account of each Bank with a 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
Commitment shall have been terminated in full, an aggregate commitment
fee (the "Commitment Fee") on the daily average amount of the
--------------
Aggregate Available Commitment equal to (A) 0.500% per annum for any
period prior to the occurrence of a Qualified Issuance that the
Consolidated Total Leverage Ratio as of the most recent Leverage Ratio
Determination Date for such period is greater than or equal to 4.50 to
1.00 and 0.375% per annum for any period prior to the occurrence of a
Qualified Issuance that the Consolidated Total Leverage Ratio as of
the most recent Leverage Ratio Determination Date for such period is
less than 4.50 to 1.00 and (B) 0.500% per annum for any period after
the occurrence of a Qualified Issuance 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 after the occurrence of a Qualified Issuance
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 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 Commitments shall
have been terminated in full.
(ii) The Borrowers shall pay to the Administrative Agent
for the account of each Bank with an Incremental 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 Commitment of a Bank shall have been terminated in full,
the Incremental Commitment Fee for each Incremental Commitment of such
Bank on the daily average amount of each of such Bank's aggregate
unutilized Incremental Commitments. Each Incremental Commitment Fee
shall begin to accrue on and after the date when the related
37
Incremental 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 Commitment shall have been terminated in full.
(b) Other Fees. The Borrowers shall pay such other fees as have
----------
been, or may be, agreed upon between the Borrowers and the Administrative
Agent from time to time.
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 Reference 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 Borrowers
and the Banks of each determination of the Eurodollar Rate; provided,
--------
however, that any failure to do so shall not relieve the Borrowers 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 Borrowers 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 Borrowers of any liability hereunder.
(c) Each determination of an interest rate by the Administrative
Agent shall be conclusive and binding on the Borrowers and the Banks in the
absence of manifest error.
2.11 Interest.
--------
(a) Except as provided in Section 2.11(d) below, each 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 Borrowers 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.
38
(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 Borrowers 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 Borrowers 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 Borrowers shall pay such Bank
interest at the highest rate permitted by applicable law.
2.12 Payments by the Borrowers.
-------------------------
(a) All payments (including prepayments) to be made by the
Borrowers on account of principal, interest, drawings under Letters of
Credit, fees and other amounts required hereunder shall be made without
set-off or counterclaim and shall, except as otherwise expressly provided
with respect to drawings under Letters of Credit and elsewhere herein, be
made to the Administrative Agent for the ratable account of the relevant
Banks at the Administrative Agent's Payment Office, and shall be made in
Dollars and in immediately available funds, no later than 12:00 noon
(Dallas, Texas time) on the date specified herein. The Administrative
Agent will promptly distribute to each relevant Bank its share, if any, of
such principal, interest, fees or other amounts, in like funds as received.
Any payment which is received by the Administrative Agent later than 12:00
noon (Dallas, Texas time) shall be deemed to have been received on the
immediately succeeding Business Day 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 Borrowers, prior to the date on which any payment is due to the
Banks hereunder, that
39
the Borrowers will not make such payment in full, the Administrative Agent
may assume that the Borrowers have 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 Borrowers 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 Borrowers 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
Borrowers 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 Borrowers such amount, such Bank
shall immediately make such amount available to the Administrative Agent,
together with interest at the Federal Funds Rate from the date of such
Borrowing to the date on which the Administrative Agent recovers such
amount from such Bank. A notice of the Administrative Agent submitted to
any Bank with respect to amounts owing under this Section 2.13(a) shall be
---------------
conclusive, absent manifest error. If such amount is so made available by
the relevant Bank, such payment to the Administrative Agent shall
constitute such Bank's Loan on the Borrowing Date for all purposes of this
Agreement. If such amount is not made available to the Administrative
Agent on the next Business Day following such Borrowing Date, the
Administrative Agent shall notify the Borrowers of such failure to fund
and, upon demand by the Administrative Agent, the Borrowers 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 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.
40
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 Loans owing to it
any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Facility Percentage, 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 Loans 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 Borrowers agree 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 Borrowers in the amount of such participation.
2.15 Security Documents and Guaranty Agreements.
------------------------------------------
(a) All Obligations under this Agreement and all other Loan
Documents shall be secured in accordance with the Security Documents.
(b) All Obligations under this Agreement and all other Loan
Documents shall be unconditionally guaranteed by the Nexstar Entities
pursuant to the Nexstar Guaranty Agreement and by any Subsidiaries of the
Borrowers pursuant to one or more Subsidiary Guaranty Agreements.
2.16 Procedure for Incremental Loan Requests.
---------------------------------------
(a) When the Borrowers wish 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
Loans to the Borrowers, the Borrowers may solicit requests from any such
Banks or other financial institutions for the providing of (i) a commitment
for an Incremental Loan (each, an "Incremental Commitment"), and (ii) as
----------------------
applicable to such Incremental Commitments, (x) the upfront fee to be
charged by such Banks or other financial institutions in connection with
the providing of such Incremental
41
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 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 Commitments
(each such margin, an "Incremental Margin"). Upon the selection by the
------------------
Borrowers of one or more Banks or other financial institutions, the
Borrowers shall promptly notify the Administrative Agent of the Banks or
other financial institutions selected and the amount of the Incremental
Commitment, the Incremental Upfront Fee, Incremental Commitment Fee and the
Incremental Margin as agreed upon by the Borrowers and such Banks or other
financial institutions; provided, that if such Incremental Margins are
--------
greater than the margins then in effect (as set forth in the definition of
"Applicable Margin" contained in Section 1.01 of the Nexstar Credit
Agreement), or if such Incremental Commitment Fees are greater than the
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.
(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 Loans (other than Incremental Loans) as in effect
from time to time.
(c) From time to time, the Borrowers 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 Borrowers for payment on all
amounts owing hereunder.
ARTICLE III.
LETTERS OF CREDIT
-----------------
3.01 Letter Of Credit Subfacility.
----------------------------
(a) On the terms and conditions set forth herein (i) the Issuing
Bank agrees, (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 Borrowers and their
respective 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
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
42
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 Loans made under the Commitments shall exceed the Aggregate Commitment
or (y) the Letter of Credit Obligations shall exceed the Letter of Credit
Commitment.
(b) The Issuing Bank shall be under no obligation to issue any
Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority shall by its terms purport to enjoin or restrain the Issuing
Bank from issuing such Letter of Credit, or any Requirement of Law
applicable to the Issuing Bank or any request or directive (whether or
not having the force of law) from any Governmental Authority with
jurisdiction over the Issuing Bank shall prohibit, or request that the
Issuing Bank refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon the
Issuing Bank with respect to such Letter of Credit any restriction,
reserve or capital requirement (for which the Issuing Bank is not
otherwise compensated hereunder) not in effect on the Effective Date
or shall impose upon the Issuing Bank any 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 a 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;
(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 any applicable 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 Issuance, Amendment and Renewal of Letters of Credit.
----------------------------------------------------
(a) Each Letter of Credit shall be issued upon (x) the
irrevocable written request of the Borrowers received by the Issuing Bank
(with a copy sent by the Borrowers 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.
43
Each request by the Borrowers 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, the Issuing Bank will, upon the written
request of the Borrowers received by the Issuing Bank (with a copy sent by
the Borrowers 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) The Administrative Agent will promptly notify the Banks with
Commitments of the receipt by it of any Letter of Credit Application or
Letter of Credit Amendment Application.
(d) The Issuing Bank and the Banks agree that, while a Letter of
Credit is outstanding and prior to the Maturity Date, at the option of the
Borrowers and upon the written request of the Borrowers received by the
Issuing Bank (with a copy sent by the Borrowers 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
44
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 Borrowers, the Issuing Bank shall not have
-------
received any Letter of Credit Amendment Application from the Borrowers with
respect to such renewal or other written direction by the Borrowers with
respect thereto, the Issuing Bank shall nonetheless be permitted to allow
such Letter of Credit to be renewed, and the Borrowers 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
Borrowers 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 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 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 Borrowers. The Borrowers 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 Borrowers 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 Borrowers shall be deemed to
have requested that Loans consisting of Base Rate Loans be made by the
Banks with 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 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,
--------
45
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(c) Each Bank which has a Commitment shall upon receipt of any
notice pursuant to Section 3.03(b) make available to the Administrative
---------------
Agent for the account of the Issuing Bank an amount in Dollars and in
immediately available funds equal to its Commitment Percentage of the
amount of the drawing, whereupon each participating Bank with Commitments
shall (subject to Section 3.03(d)) each be deemed to have made a Loan
---------------
consisting of a Base Rate Loan to the Borrowers 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 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.
------------
(d) With respect to any unreimbursed drawing which is not
converted into Loans consisting of Base Rate Loans to the Borrowers in
whole or in part because the Aggregate Available Commitment is less than
such unreimbursed drawing or because of the Borrowers' failure to satisfy
the conditions set forth in Section 5.03, the Borrowers 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 Commitment to make 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, defense or other right which such Bank may have
against the Issuing Bank, the Borrowers 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 circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing.
46
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 any 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 Commitment
Percentage of such funds, and the Issuing Bank shall receive the amount of
the 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 any Borrower, or to a trustee, receiver,
liquidator, custodian, or any similar official in any Insolvency
Proceeding, any portion of the payments made by such 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 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 Borrowers 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 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
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 Borrowers hereby assume all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit. The Issuing Bank and its correspondents, participants
and assignees shall not be liable or responsible for any of the matters
described in clauses (i) through (vii) of Section 3.06; provided, however
----------- ----- ------------ --------
that the Borrowers may have a claim against the Issuing Bank, and the
Issuing Bank may be liable to the Borrowers, to the extent, but only to the
extent, of any direct,
47
as opposed to consequential or exemplary, damages suffered by the Borrowers
which the Borrowers prove 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 Borrowers 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 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 Borrowers 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 Borrowers 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.
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, any
Letters of Credit may for any reason remain outstanding and partially or wholly
48
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
-------------------
Borrowers to Cash Collateralize Letters of Credit, then the Borrowers 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 Borrowers 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 Borrowers, will duly
release the cash held hereunder as security in any cash collateral account and
shall assign, transfer and deliver to the Borrowers (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 Borrowers shall pay to the Administrative Agent (for the
account of each Bank with a 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 Borrowers 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 Borrowers 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 Borrowers when a Letter of Credit is issued,
(a) the rules of the "International Standby Practices 1998" published by the
Institute of International Banking Law & Practice (or such later version thereof
as may be in effect at the time of issuance) shall apply to each standby Letter
of Credit, and (b) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce
(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.
49
ARTICLE IV.
TAXES, YIELD PROTECTION AND ILLEGALITY
--------------------------------------
4.01 Taxes. Subject to Section 4.01(g), 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").
-----
(a) In addition, the Borrowers 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").
-----
(b) Subject to Section 4.01(g), the Borrowers shall indemnify
---------------
and hold harmless each Bank and the Administrative Agent 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(c)) 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.
(c) If the Borrowers 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(g):
-------
(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(c)) 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 Borrowers shall make such deductions; and
(iii) the Borrowers shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with
applicable law.
(d) Within 30 days after the date of any payment by the
Borrowers of Taxes or Other Taxes, the Borrowers shall furnish to the
Administrative Agent, at its address referred to in Section 11.02, the
-------------
original or a certified copy of a receipt evidencing payment thereof, or
other evidence of payment satisfactory to the Administrative Agent.
50
(e) Each Bank which is organized under the laws of a
jurisdiction outside the United States agrees that:
(i) it shall, no later than the Effective Date (or, in the
case of a Bank which becomes a party hereto pursuant to Section 11.07
-------------
after the Effective Date, the date upon which such Bank becomes a
party hereto) deliver to the Borrowers 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 Borrowers 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(e)(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 Borrowers through the Administrative Agent two accurate and
complete original signed copies of Form W-8BEN or Form W-8ECI in
replacement for the forms previously delivered by such Bank indicating
that such Bank continues to be entitled to receive all payments under
this Agreement free from any withholding of any United States Federal
income tax;
(iv) it shall, to the extent it is legally entitled to do
so, promptly upon the Borrowers' or the Administrative Agent's
reasonable request to that effect, deliver to the Borrowers 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
51
Bank's Form W-8ECI as no longer in compliance with this Section
-------
4.01(e). 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(c) from the Borrowers upon
---------------
satisfaction of such Bank's obligations under the provisions of this
Section 4.01(e), 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(e)(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
Borrowers 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.
(f) The Borrowers 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(c) 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(e) in respect
---------------
of its Lending Office;
(ii) if such Bank shall have delivered to the Borrowers a
Form W-8BEN in respect of its Lending Office pursuant to Section
-------
4.01(e)(i)-(iii) or such other forms or similar documentation pursuant
----------------
to Section 4.01(e)(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
52
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 Borrowers a
Form W-8ECI in respect of its Lending Office pursuant to Section
-------
4.01(e)(i)-(iii) or such other forms or similar documentation pursuant
----------------
to Section 4.01(e)(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 Borrowers
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.
(g) Each Bank agrees that it shall, at any time upon reasonable
advance request in writing by the Borrowers 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 Borrowers and received by such Bank pursuant
to this Agreement or any other Loan Document.
(h) The Borrowers shall indemnify each Bank and the
Administrative Agent, 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.
(i) 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 Borrowers under this Section 4.01 from the taxing
------------
authority imposing such Taxes or Other Taxes, such Bank or the
Administrative Agent, as the case may be, shall, at the expense of the
Borrowers, use reasonable efforts to obtain such refund and upon receipt
thereof, shall promptly pay to the Borrowers the amount so received.
(j) If the Borrowers are required to pay additional amounts to
any Bank or the Administrative Agent pursuant to Section 4.01(c), then such
---------------
Bank shall, upon the Borrowers' 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.
(k) Each Bank agrees that it will (i) take all reasonable
actions reasonably requested by the Borrowers (consistent with policy
considerations by such
53
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 Borrowers to
minimize any amounts payable by the Borrowers 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 Borrowers 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 Borrowers 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 Borrowers
shall pay any amounts required to be paid in connection therewith pursuant
to Section 4.04.
------------
(c) Before giving any notice to the Administrative Agent
pursuant to this Section 4.02, the affected Bank shall designate a
------------
different Lending Office with respect to its Eurodollar Loans if such
designation will avoid the need for giving such notice or making such
demand and will not, in the judgment of such Bank, be illegal, inconsistent
with the policies of such Bank or otherwise disadvantageous to such Bank.
4.03 Increased Costs and Reduction of Return.
---------------------------------------
(a) If any Bank or the Issuing Bank shall determine that, due to
either (i) the introduction of or any change in or in the interpretation or
administration of any law or 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
54
under any Letter of Credit, then the Borrowers 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 Borrowers 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 Borrowers 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
Borrowers to make any payment of principal of any Eurodollar Loan (including
payments made after any acceleration thereof); (b) any failure by the Borrowers
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 Borrowers have given a Notice of Borrowing, or a Notice of
Conversion/Continuation as the case may be; (c) any failure by the Borrowers to
make any prepayment of a Eurodollar Loan after the Borrowers have given a notice
in accordance with Section 2.06; or (d) any payment or prepayment (including
------------
pursuant to Section 2.06 or 2.07 or after acceleration thereof) of any
------------ ----
Eurodollar Loan for any reason whatsoever on a day which is not the last day of
the Interest Period with respect thereto; including in each case any such loss
or expense arising from the liquidation or 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
55
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 Borrowers its pro rata share of any such proposed
Eurodollar Loan, then the Borrowers 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 Borrowers 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 Borrowers 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 Borrowers (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 Borrowers 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 Borrowers, use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to
designate a different Lending Office for any Loans affected by such event
with the object of avoiding the consequence of the event giving rise to the
operation of such section; provided however that such designation would
--------
not, in the sole judgment of such Bank, be otherwise disadvantageous to
such Bank. Nothing in this Section 4.08(a) shall affect or postpone any of
---------------
the obligations of the Borrowers 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 Borrowers to pay any amount under Section 4.01 or giving rise
------------
to the operation of Section 4.02 or Section 4.03 with respect to any Bank
------------ ------------
or (ii) as provided in Section 11.01(b) in the case of certain refusals by
----------------
a Bank to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been
56
approved by the Majority Banks, the Borrowers shall have the right, if no
Default or Event of Default then exists or will exist immediately after
giving effect to the respective replacement, to replace such Bank (the
"Replaced Bank") by designating another Bank or an Eligible Assignee (such
-------------
Bank or Eligible Assignee being herein called a "Replacement Bank") to
----------------
which such Replaced Bank shall assign, in accordance with Section 11.07
-------------
and without recourse to or warranty by, or expense to, such Replaced Bank,
the rights and obligations of such Replaced Bank hereunder (except for such
rights as survive repayment of the Loans), and, upon such assignment, such
Replaced Bank shall no longer be a party hereto or have any rights
hereunder and such Replacement Bank shall succeed to the rights and
obligations of such Replaced Bank hereunder. The Borrowers 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 Borrowers 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 Borrowers 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) Credit Agreement. This Agreement duly executed and
----------------
delivered by the Borrowers, the Administrative Agent, the Issuing Bank and
each of the other Banks (or, in the case of any party as to which an
executed counterpart shall not have been received, receipt by the
Administrative Agent in form satisfactory to it of a facsimile or other
written confirmation from such party of execution of a counterpart of this
Agreement by such party).
(b) Closing Certificates. A Closing Certificate of each Credit
--------------------
Party, dated the Effective Date, substantially in the form of Exhibit J,
---------
duly executed by a Responsible Officer and the Secretary or any Assistant
Secretary of each 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
57
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. 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) Security Documents.
------------------
(i) The ▇▇▇▇▇ Pledge Agreement, duly executed and
delivered by ▇▇▇▇▇ ▇▇▇▇▇, together with
(A) all certificates and instruments (endorsed in
blank) representing the Pledged Collateral then to be pledged,
(B) an undated stock power for each such certificate
executed in blank,
(C) with respect to Pledged Collateral, if any,
consisting of book-entry shares, evidence that all actions
described in the ▇▇▇▇▇ Pledge Agreement which are necessary to
create and perfect the security interests in such Pledged
Collateral pursuant to the ▇▇▇▇▇ Pledge Agreement in accordance
with Article 9 of the applicable Uniform Commercial Code have
been taken, and
(D) evidence that such actions have been taken as may
be necessary or, in the opinion of the Collateral Agent,
desirable to perfect the security interests purported to be
created by the ▇▇▇▇▇ Pledge Agreement;
(ii) the Pledge Agreement, duly executed and delivered by
each Bastet/Mission Entity, together with
58
(A) all certificates and instruments (endorsed in
blank) representing the Pledged Collateral then to be pledged,
(B) an undated stock power for each such certificate
executed in blank,
(C) with respect to Pledged Collateral, if any,
consisting of book-entry shares, evidence that all actions
described in the Pledge Agreement which are necessary to create
and perfect the security interests in such Pledged Collateral
pursuant to the Pledge Agreement in accordance with Article 9 of
the applicable Uniform Commercial Code have been taken, and
(D) Evidence that such actions have been taken as may
be necessary or, in the opinion of the Collateral Agent,
desirable to perfect the security interests purported to be
created by the Pledge Agreement; and
(iii) the Security Agreement, duly executed by each
Bastet/Mission Entity, together with
(A) executed copies of Financing Statements (Form UCC-
1) in appropriate form for filing under the Uniform Commercial
Code of each jurisdiction as may be necessary to perfect the
security interests purported to be created by the Security
Agreement,
(B) certified copies of Requests for Information or
Copies (Form UCC-11), or equivalent lien search reports, each of
recent date listing all effective financing statements that name
each Credit Party as debtor and that are filed in each
jurisdiction, as may be necessary to perfect the security
interests of the Banks under the Security Documents, together
with copies of such financing statements (none of which shall
cover the Collateral except (x) those with respect to which
appropriate termination statements executed by the secured lender
thereunder have been delivered to the Administrative Agent and
(y) to the extent evidencing Permitted Liens); and
(iv) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the ▇▇▇▇▇
Pledge Agreement, the Pledge Agreement and the Security Agreement have
been taken.
(e) Legal Opinions.
--------------
(i) An opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the
Borrowers, addressed to the Administrative Agent and the Banks, which
opinion shall cover such matters incident to the transactions
contemplated herein and in the other
59
Loan Documents as the Administrative Agent may reasonably request and
shall be in form and substance reasonably satisfactory to the
Administrative Agent; and
(ii) an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Nexstar
Entities and special counsel to the Borrowers, addressed to the
Administrative Agent and the Banks, which opinion shall cover such
matters incident to the transactions contemplated herein and in the
other Loan Documents as the Administrative Agent may reasonably
request and shall be in form and substance reasonably satisfactory to
the Administrative Agent.
(f) Certificates. Certificates signed by a Responsible Officer
------------
of each applicable Credit Party, dated as of the Effective Date stating
that:
(i) the representations and warranties of the Borrowers
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 Bastet/Mission Entity will have any Indebtedness
outstanding except as shall be permitted under Section 8.05.
------------
(g) Pro Forma Nexstar Financial Statements. A consolidated
--------------------------------------
balance sheet and income statement from each of the Ultimate Nexstar Parent
and its Subsidiaries and Nexstar Finance and its Subsidiaries as of October
31, 2000, calculated on a Pro Forma Basis giving effect to the initial
borrowings to be made under the Nexstar Credit Agreement and the Nexstar
Finance Holdings Bridge, the refinancing of the Existing Nexstar Credit
Agreement, the Midwest Acquisition and the payment or accrual of all fees
and expenses payable in connection with the foregoing.
(h) Solvency Certificate. A Solvency Certificate, duly executed
--------------------
by a Responsible Officer of each Borrower, certifying to the Banks that
each such Borrower is Solvent both before and after giving effect to the
transactions contemplated by this Agreement.
(i) Solvency Opinion. An original solvency opinion letter
----------------
prepared by Valuation Research Corp., opining to the Administrative Agent
and the Banks that (i) each of the Borrowers and (ii) the Ultimate Nexstar
Parent, Nexstar Finance Holdings, Nexstar Finance and each of its
Subsidiaries is Solvent, both before and after giving effect to the
transactions contemplated in this Agreement and in the Nexstar Credit
Agreement, including the incurrence of Indebtedness under this Agreement
and the
60
Nexstar Finance Holdings Bridge, the incurrence of the Guaranty Obligations
created under the Guaranty Agreements and the consummation of the Midwest
Acquisition, in form and substance satisfactory to the Administrative
Agent.
(j) Nexstar Guaranty Agreement. The Nexstar Guaranty Agreement
--------------------------
duly executed and delivered by each Nexstar Entity.
(k) Intentionally Deleted.
---------------------
(l) Joint Sales Agreements, Shared Services Agreements and
-------------------------------------------------------
Local Marketing Agreements. Certified copies of Joint Sales Agreements,
--------------------------
Shared Services Agreements and/or Local Marketing Agreements covering all
of the television broadcast stations owned by the Borrowers and/or their
Subsidiaries.
(m) Reimbursement and Contribution Agreements. The following
-----------------------------------------
Reimbursement and Contribution Agreements, in form and substance
satisfactory to the Administrative Agent:
(i) a Reimbursement and Contribution Agreement between the
Borrowers with respect to the Guaranty Obligations of such Borrowers under
this Agreement; and
(ii) a Reimbursement and Contribution Agreement among the
Borrowers and the Nexstar Entities with respect to the Guaranty Obligations
of the Nexstar Entities under the Nexstar Guaranty Agreement.
(n) Other Documents. Such other approvals, opinions or
---------------
documents, including financing statements, as the Administrative Agent or
any Bank may reasonably request.
5.02 Additional Conditions to the Effective Date.
-------------------------------------------
The occurrence of the Effective Date and the obligation of the Banks
to make Loans and the Issuing Bank to issue Letters of Credit on the Initial
Borrowing Date are subject to the satisfaction, prior to or concurrently with
the occurrence of the Effective Date and the making of Loans and the issuance of
Letters of Credit on the Initial Borrowing Date of the other conditions
precedent set forth below, each in a manner reasonably satisfactory to the
Administrative Agent and the Banks:
(a) Nexstar Credit Agreement. On or prior to the Effective
------------------------
Date, the Ultimate Nexstar Parent, each of its direct Subsidiaries and
Nexstar Finance shall have entered into an agreement for certain credit
facilities (the "Nexstar Credit Agreement") and related loan documents, and
------------------------
shall have utilized the proceeds from same to incur up to $233,000,000 in
Indebtedness to refinance the Indebtedness outstanding under the Existing
Nexstar Credit Agreement and to fund in part the Midwest Acquisition, all
on a basis which is satisfactory to the Administrative Agent and the Banks.
61
(b) Bastet/Mission Guaranty of Nexstar Obligations. The
----------------------------------------------
Borrowers shall have executed and delivered to the Nexstar Banks and the
Administrative Agent shall have received a copy of the Bastet/Mission
Guaranty of Nexstar Obligations, in form and substance satisfactory to the
Administrative Agent and the Banks.
(c) 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 the Midwest Acquisition,
the Nexstar Finance Holdings Bridge, 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.
(d) 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.
(e) Material Adverse Effect. Evidence satisfactory to the
-----------------------
Administrative Agent that since October 31, 2000, there shall have occurred
no event or circumstance which has had or could reasonably be expected to
have a Material Adverse Effect.
(f) Sale and Issuance of Permitted Nexstar Finance Holdings
-------------------------------------------------------
Preferred Equity and Equity Contribution to Nexstar Finance. On or prior
-----------------------------------------------------------
to the Effective Date, (i) Nexstar Finance Holdings shall have issued the
Permitted Nexstar Finance Holdings Preferred Equity and received cash
proceeds therefor in an amount not less than $50,000,000 (ii) the proceeds
from such sale and issuance of Permitted Nexstar Finance Holdings Preferred
Equity shall have been contributed as common equity to Nexstar Finance and
(iii) ABRY II, ABRY III and ▇▇▇▇▇ ▇▇▇▇ shall have caused an additional
$15,000,000 in common equity to have been contributed to Nexstar Finance.
(g) Nexstar Finance Holdings Bridge. On or prior to the
-------------------------------
Effective Date, Nexstar Finance Holdings shall have entered into a
$40,000,000 unsecured bridge loan facility on terms and conditions
satisfactory to the Administrative Agent and the Banks (the "Nexstar
-------
Finance Holdings Bridge") and the Net Debt Proceeds therefrom shall have
-----------------------
been used to fund a cash equity contribution to Nexstar Finance.
(h) 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 ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. 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.
(i) Repayment, Repurchase, Cancellation and/or Modification of
----------------------------------------------------------
Certain Indebtedness. (i) All Indebtedness and all other obligations
--------------------
outstanding with respect to the Existing Credit Agreement and all other
Indebtedness not permitted by
62
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, (ii) the Nexstar Management Loan shall have been amended and
restated or otherwise modified on terms and conditions satisfactory to the
Administrative Agent and the Banks, and (iii) the Administrative Agent
shall have received satisfactory evidence that all of the foregoing has
occurred.
(j) 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
the Loan Documents, the Nexstar Loan Documents, the Nexstar Finance
Holdings Bridge, the Permitted Nexstar Finance Holdings Preferred Equity,
the Midwest Acquisition and the other transactions contemplated herein and
therein 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
or the other Loan Documents, the Nexstar Loan Documents, the Nexstar
Finance Holdings Bridge, the Permitted Nexstar Finance Holdings Preferred
Equity, the Midwest Acquisition or any of the other transactions
contemplated herein or therein.
(k) Appointment of Service Agent. Corporation Service Company
----------------------------
shall have accepted its appointment as agent for the Credit Parties to
receive service of process in any legal action or proceeding relating to
the Loan Documents brought in the State of New York during the period from
the Effective Date through the Stated Maturity Date.
(l) 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.
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 shall have received (i) a Notice of Borrowing in the
case of Loans, as required under Section 2.03(a), or (ii) in the case of
---------------
any issuance of any Letter of Credit, the Issuing Bank and the
Administrative Agent shall have received a Letter of Credit Application, as
required under Section 3.02 and/or (iii) Notice of Conversion/Continuation,
------------
as required under Section 2.04.
------------
63
(b) Representations and Warranties. Each of the representations
------------------------------
and warranties made by the Credit Parties in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as of
such Borrowing Date or date of issuance of a Letter of Credit as if made on
and as of such date, both before and after giving effect to the Credit
Event requested to be made on such date and the proposed use of the
proceeds thereof (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and
correct as of such earlier date).
(c) No Default. No Default or Event of Default shall exist both
----------
before and after giving effect to the Credit Event requested to be made on
such date and the proposed use of proceeds thereof.
(d) No Material Adverse Effect. Since the Effective Date, no
--------------------------
events shall have occurred which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
Each Notice of Borrowing or Letter of Credit Application submitted by
the Borrowers hereunder shall be deemed to constitute a representation and
warranty by the Borrowers 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 and the Banks to enter into this
Agreement and to make the Loans and to issue Letters of Credit, each Borrower
hereby makes the following representations and warranties to the Administrative
Agent and each Bank, both as to itself and as to its respective Subsidiaries.
6.01 Existence; Compliance with Law. Such Borrower and each of its
------------------------------
Subsidiaries (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
64
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
-------------------------------
such Borrower and its Subsidiaries of this Agreement and/or any other Loan
Document to which each is a party have been duly authorized by all necessary
corporate, limited liability company or partnership action, as the case may be,
of such Credit Party and does not and will not: (a) contravene any terms of the
certificate of incorporation, limited liability company agreement or partnership
agreement, or certificate of formation, as the case may be, or by-laws of such
Credit Party; (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
Credit Party and will not result in, or require, the creation of any Lien on any
of their respective properties or any revenues, income or profits therefrom,
whether now owned or hereafter acquired pursuant to any Requirement of Law or
Contractual Obligation (other than pursuant to the Security Documents) to which
such Credit Party is a party or any order, injunction, writ or decree of any
Governmental Authority to which such Credit Party 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, such Borrower or its
Subsidiaries 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 such Borrower or any of its Subsidiaries is a party constitutes the legal,
valid and binding obligation of such Credit Party to the extent such Credit
Party is a party thereto, enforceable against such Credit Party 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 such Borrower or any of its
Subsidiaries, threatened at law, in equity, in arbitration or before any
Governmental Authority, against any such Credit Party 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.
65
6.06 No Default. No Default or Event of Default exists or will result
----------
from the incurring of any Obligations by such Borrower or any of its
Subsidiaries. No such Credit Party 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 such Borrower and
its Subsidiaries nothing has occurred which would cause the loss of such
qualification or the revocation of such determination letter.
(b) There are no pending or, to the best knowledge of such
Borrower or any of its Subsidiaries, 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) Neither such Borrower nor any of its Subsidiaries, nor any
ERISA Affiliate, has incurred, or reasonably expects to incur, any material
liability under Title IV of ERISA with respect to any Pension Plan.
(f) Neither such Borrower nor any of its Subsidiaries, nor any
ERISA Affiliate, has incurred or 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) Neither such Borrower nor any of its Subsidiaries, nor any
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. Neither such Borrower nor
-----------------------------------
any of its Subsidiaries 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 such Borrower or any of its Subsidiaries,
66
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 Board including Regulations U and X. If requested by any Bank or the
Administrative Agent, any such 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) Such Borrower and each of its Subsidiaries 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.
(b) (i) Such Borrower and each of its Subsidiaries 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 such Credit
Party enjoys peaceful and undisturbed possession under all such leases
under which it is a tenant, in each case except where the failure to comply
or to enjoy such possession, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(c) As of the date of this Agreement, (i) neither such Borrower
nor any of its Subsidiaries has received any notice of, or has any
knowledge of, any pending or contemplated condemnation proceeding affecting
any Real Property owned by such Credit Party or any sale or disposition
thereof in lieu of condemnation and (ii) no such Credit Party 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) Such Borrower and each of its Subsidiaries 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 such Credit
Party 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
such Credit Party, the use of such Intellectual Property by any such Credit
Party does not infringe on the rights of any Person.
6.10 Taxes. Such Borrower and each of its Subsidiaries has filed all
-----
federal and other material tax returns and reports required to be filed and paid
the tax thereon shown to
67
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 such Borrower or any of its Subsidiaries 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 do and
will present fairly, in all material respects, the financial condition of the
such Borrower and its Subsidiaries 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). Neither such Borrower nor any of its Subsidiaries has any material
Guarantee Obligation, contingent liability or liability for taxes, or any long-
term lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange transaction,
which is not reflected in its financial statements or in the schedules or notes
thereto and which would be required by GAAP to be disclosed therein (or in the
notes and schedules thereto). Since October 31, 2000, 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. Neither such Borrower nor any of its
-----------------------
Subsidiaries 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. Neither such Borrower nor any of its Subsidiaries
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 such Borrower and its Subsidiaries 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 such Credit Party 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
68
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. Neither such Borrower nor any of its
-------------------
Subsidiaries 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 any such Credit Party, in any manner which has had or is reasonably
likely to have, a Material Adverse Effect. To the best knowledge of such
Borrower and its Subsidiaries, 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 has had or is reasonably likely to have, a
Material Adverse Effect. The failure, if any, of any such Borrower or any of
its Subsidiaries, 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. Neither such Borrower nor any of its Subsidiaries 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. Neither such Borrower
nor any of its Subsidiaries has contractually assumed any liabilities or
obligations under any Environmental Law which has had, or is reasonably expected
to have, a Material Adverse Effect. There are no facts or circumstances which
exist that could give rise to liabilities with respect to Hazardous Materials or
any Environmental Law, which has had, or is reasonably expected to have, a
Material Adverse Effect.
6.16 FCC Licenses.
------------
(a) Such Borrower and each of its Subsidiaries 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
------------
FCC Licenses of such Borrower and its Subsidiaries 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) Neither such Borrower nor any of its Subsidiaries 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
69
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 such Borrower or any of its Subsidiaries 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 neither such Borrower nor any of its Subsidiaries 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 such Credit Party 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.
6.17 Subsidiaries. Such Borrower has no 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, such Borrower and each of its Subsidiaries 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 such Borrower and its Subsidiaries, threatened
against such Borrower or any of its Subsidiaries 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 described therein and, when the requirements of Section 4 of
each have been satisfied, each shall constitute 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.
70
(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, when financing statements in appropriate form are
filed in the appropriate governmental offices, the Security Agreement shall
constitute 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 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 such Borrower and its Subsidiaries and the Stations owned and/or
operated by them 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.
ARTICLE VII.
AFFIRMATIVE COVENANTS
---------------------
The Borrowers agree with the Administrative 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. Each 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 such Borrower and its consolidated Subsidiaries as at the end of such
Fiscal Year and the related consolidated statements of income or
operations, shareholders' 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 such Borrower and such auditors
which are disclosed and described in such statements); such opinion shall
not be qualified or limited because of a restricted or limited examination
by such accountant of any material portion of such Borrower or any of its
Subsidiaries;
71
(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 such Borrower and its
Subsidiaries as of the end of each such Fiscal Quarter and the related
consolidated statements of income, shareholders' equity and cash flows for
the period commencing on the first day and ending on the last day of such
Fiscal Quarter, and certified to by a Responsible Officer of such Borrower
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 such Borrower and its 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
such Borrower and its consolidated Subsidiaries as of the end of such month
and the related statements of income, shareholders' equity and cash flows
for the period commencing on the first day and ending on the last day of
such month, and certified by a Responsible Officer of such Borrower 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 such Borrower and its consolidated Subsidiaries.
7.02 Certificates; Other Information. Each 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) above, a certificate duly executed
---------------- ---
by a Responsible Officer of each Borrower setting forth the calculations
required to establish whether the Borrowers were in compliance with the
provisions of Sections 8.09(a) and (b) at the end of such Fiscal Quarter or
---------------- ---
Fiscal Year, as the case may be;
(b) promptly after the same are sent, copies of all financial
statements and reports which such Borrower sends to its shareholders; and
promptly after the same are filed, copies of all financial statements and
regular, periodical or special reports which any Nexstar Entity may make
to, or file with, the Securities and Exchange Commission, other than
filings on Form 11-K and S-8; and
(c) promptly, such additional business, financial and other
information with respect to such Borrower or any of its Subsidiaries as the
Administrative Agent, at the request of any Bank, may from time to time
reasonably request.
7.03 Notices. Each Borrower shall, upon any Responsible Officer of
-------
such Borrower or any of its Subsidiaries 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;
72
(b) any litigation, arbitration, or governmental investigation or
proceeding not previously disclosed by such Borrower to the Banks which has
been instituted or, to the knowledge of such Borrower or any of its
Subsidiaries, is threatened against such Borrower or any of its
Subsidiaries 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 such Borrower or any of its Subsidiaries to the Banks which
could reasonably be expected to have a Material Adverse Effect; or
(d) any of the following events affecting such Borrower, any of
its Subsidiaries 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 such Borrower, any of
its Subsidiaries or any ERISA Affiliate with respect to such event:
(i) an ERISA Event; or
(ii) if any of the representations and warranties in Section
-------
6.07 ceases to be true and correct.
----
7.04 FCC Information. As soon as possible and in any event within
---------------
five days after the receipt by a Borrower or any of its Subsidiaries from the
FCC or any other Governmental Authority or filing or receipt thereof by a
Borrower or any of its Subsidiaries, 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 such Credit Party which is available to any such
Credit Party, 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
such Credit Party 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. Each 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
such Borrower and/or its Subsidiaries or the operation of the Stations of any
such Credit Party.
7.06 License Lapse. As soon as possible and in any event within five
-------------
days after the receipt thereof by any Borrower or any of its Subsidiaries, such
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 such Credit Party or any failure of the FCC
or other Governmental Authority to renew or extend any such License,
73
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 such Credit Party 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. Each Borrower shall, and shall cause each of its
--------------------------
Subsidiaries to, cause to be done at all times all things necessary to maintain
and preserve the corporate, limited liability company or partnership existence,
as the case may be, of each such Credit Party except to the extent otherwise
permitted pursuant to Section 8.04. Each such Credit Party will continue to own
------------
and hold directly all of the outstanding shares of Capital Stock of its
Subsidiaries as set forth on Schedule 6.17, except as otherwise permitted
-------------
pursuant to Section 8.04.
------------
7.08 Foreign Qualification, etc. Each 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 such Borrower and each of
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. Each Borrower will, and will cause each of
---------------------
its 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 any such Credit Party, as well as material claims of any kind which,
if unpaid, might become a Lien upon any such Credit Party's properties, and will
pay (before they become delinquent) all other material obligations and
liabilities; provided, however, that the foregoing shall not require such
--------
Borrower or any of its Subsidiaries to pay or discharge any such tax,
assessment, charge, levy, lien, obligation or liability so long as such Credit
Party 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. Each 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 such Credit Party 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 such Credit Parties.
7.11 Compliance with Laws, etc. Each 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. Each Borrower will, and will cause each of
-----------------
its Subsidiaries to, keep proper books and records reflecting all of their
business affairs and transactions in accordance with GAAP. Each Borrower will,
and will cause each of its Subsidiaries to, permit the Administrative Agent or,
after the occurrence and during the
74
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 such Credit Parties to be present, independent
accountants (and hereby authorizes such independent accountants to discuss their
financial matters with the Administrative Agent, 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 such Borrower's expense
for any charges imposed by such accountants or for making such abstracts or
photocopies, but otherwise at the Administrative Agent's or such Bank's expense.
7.13 Use of Proceeds. The Borrowers shall use the proceeds of the
---------------
Loans (a) to refinance the Indebtedness outstanding under the Existing Credit
Agreement and to pay related transaction costs, and (b) for capital
expenditures, working capital and other general corporate requirements of the
Borrowers and their Subsidiaries.
7.14 End of Fiscal Years; Fiscal Quarters. Each 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 Additional Security; Further Assurances.
---------------------------------------
(a) Each 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 such Credit
Parties 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 Borrowers 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) Each Borrower will, and will cause each of its Subsidiaries
to, at the expense of such 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 such Borrower. Furthermore,
75
each 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 7.15 has been complied with.
------------
(c) If at any time any Borrower acquires any additional
Subsidiary, such Borrower will promptly notify the Administrative Agent
thereof and cause such Subsidiary 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 any Bastet/Mission
Entity constituting Collateral, each Borrower shall provide to the
Administrative Agent appraisals which satisfy the applicable requirements
of the Real Estate Appraisal Reform Amendments of the Financial Institution
Reform, Recovery and Enforcement Act of 1989 and which shall be in form and
substance reasonably satisfactory to the Administrative Agent.
(e) Each Borrower agrees that each action required above by this
Section 7.15 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 Credit Party pursuant to the terms of this Section 7.15;
------------
provided that in no event shall any such Credit Party 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 7.15.
------------
7.16 Information. Each Borrower will provide the Administrative Agent
-----------
with any other information reasonably requested by the Administrative Agent
(including pro forma financial projections) for the period until the Maturity
Date in a form reasonably acceptable to the Administrative Agent.
ARTICLE VIII.
NEGATIVE COVENANTS
------------------
Each Borrower agrees with the Administrative 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 Borrowers will not, and will not cause
-------------------
or permit any of their respective Subsidiaries to, directly or indirectly, alter
in a fundamental and substantial manner the character of the Television
Broadcasting Business of the Borrowers and their respective Subsidiaries, taken
as a whole, from that conducted immediately following the Effective Date.
8.02 Limitation on Liens. The Borrowers will not, and will not permit
-------------------
any of their respective Subsidiaries to, create, incur, assume, or suffer to
exist any Lien upon any of
76
their respective revenues, property (including fixed assets, inventory, Real
Property, intangible rights and Capital Stock) or other assets, whether now
owned or hereafter acquired, other than the following ("Permitted Liens"):
---------------
(a) 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 Bastet/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 Bastet/Mission Entity in
accordance with GAAP;
(c) Liens encumbering property of any Bastet/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 Bastet/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;
(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 Bastet/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;
(f) purchase money security interests encumbering, or Liens
otherwise encumbering at the time of the acquisition thereof by the
Borrowers or any of their respective 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
Borrowers and their respective Subsidiaries and (ii) equipment, furniture,
machinery or other assets hereafter acquired by the Borrowers or any of
their respective 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;
77
(g) interests in Leaseholds under which a Bastet/Mission Entity
is a lessor, provided such Leaseholds are otherwise not prohibited by the
--------
terms of this Agreement;
(h) bankers' Liens in respect of deposit accounts;
(i) Liens created by the Security Documents;
(j) other Liens, so long as the obligations secured thereby do
not exceed $250,000 in the aggregate at any time outstanding;
(k) the options to purchase assets of the Bastet/Mission Entities
granted by such Bastet/Mission Entities to the Ultimate Nexstar Parent or
one or more of its Subsidiaries; and
(l) Liens represented by the escrow of cash or Cash Equivalents,
and the earnings thereon, securing the obligations of a Bastet/Mission
Entity 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 or securing the
------------
obligations of a Bastet/Mission Entity to the seller of the property under
any agreement pursuant to which such Bastet/Mission Entity may acquire
Reinvestment Assets in accordance with this Agreement or other assets which
the Bastet/Mission Entities are permitted to acquire pursuant to Section
-------
8.04.
----
8.03 Disposition of Assets. The Borrowers will not, and will not
---------------------
suffer or permit any of their respective Subsidiaries to, directly or
indirectly, make any Disposition or enter into any agreement to make any
Disposition, except:
(a) any Subsidiary of a Borrower may make and agree to make
Dispositions to such Borrower or to Wholly-Owned Subsidiaries of such
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) Dispositions of cash or Cash Equivalents, unless otherwise
prohibited under this Agreement or the other Loan Documents; and
(c) Dispositions made pursuant to the options described in
Section 8.02(k) or Dispositions permitted under Sections 8.04(b), 8.04(c)
--------------- ---------------- -------
and 8.13.
----
8.04 Consolidations, Mergers, Acquisitions, etc. The Borrowers will
------------------------------------------
not, and will not suffer or permit any of their respective Subsidiaries to, wind
up, liquidate or dissolve themselves, consolidate or amalgamate with or merge
into or with any other Person, or purchase or otherwise acquire (or enter into
any agreement to purchase or otherwise acquire) any television broadcasting
station or any Person, or all or substantially all of the assets of any Person
(or of any principal line of business or division thereof) or convey, sell,
transfer, lease or otherwise dispose of all or substantially all of their
respective assets, either in one transaction or a series of related
transactions, to any other Person or Persons, except:
78
(a) so long as no Default or Event of Default exists both before
and after giving effect thereto, the Borrowers and their respective
Subsidiaries may make Dispositions permitted under Section 8.03;
------------
(b) any Subsidiary of a Borrower may merge with and into, or be
dissolved or liquidated into, such Borrower so long as (i) such Borrower is
the surviving Person of any such merger, dissolution or liquidation and
(ii) such 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);
(c) any Subsidiary of a Borrower may merge with and into, or be
dissolved or liquidated into, any Wholly-Owned Subsidiary of such Borrower
so long as (i) such Wholly-Owned Subsidiary of such 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);
(d) so long as no Default or Event of Default exists both before
and after giving effect thereto, the purchase or acquisition (by merger,
consolidation, acquisition of Capital Stock or assets or otherwise) by any
Bastet/Mission Entity after the Effective Date of (i) 100% of the Capital
Stock of any Person primarily engaged in the Television Broadcasting
Business or (ii) a television broadcast station and all related assets
necessary to operate such television broadcast station; provided that (A)
--------
the consideration paid in connection with each such transaction or series
of related transactions may not exceed $20,000,000, (B) concurrently with
the consummation of such transaction or series of related transactions,
each applicable Bastet/Mission Entity shall have entered into a Local
Marketing Agreement, or a Joint Sales Agreement and a Shared Services
Agreement, with a Nexstar Entity with respect to each television broadcast
station being acquired, upon terms and conditions substantially similar to
those entered into with respect to the Stations listed in Schedule 6.16
-------------
attached hereto and otherwise reasonably acceptable to the Administrative
Agent, (C) either (x) immediately after giving effect to such transaction
or series of related transactions, the Consolidated Total Leverage Ratio is
less than or equal to 5.00:1.00 or (y) if the Consolidated Total Leverage
Ratio is greater than 5.00:1.00, the Majority Banks have consented in
writing to such transaction or series of related transactions prior to the
consummation thereof, and (D) at least 10 Business Days prior to the
consummation of any such proposed transaction or series of related
transactions, the Borrowers shall have delivered to the Administrative
Agent (1) a certificate signed by a Responsible Officer of Nexstar Finance,
certifying (x) compliance with clause (C) of this proviso and with the
other financial covenants contained in Section 8.09 of the Nexstar Credit
Agreement, based on financial projections of Nexstar Finance and its
Subsidiaries (such projections to include
79
the Bastet/Mission Entities, which shall be deemed Subsidiaries of Nexstar
Finance for purposes of such projections) attached to such certificate
which have been prepared on a Pro Forma Basis for the period from the date
of the consummation of the proposed purchase or acquisition to the Stated
Maturity Date and (y) that no Default or Event of Default (as such terms
are defined in the Nexstar Credit Agreement) exists or will exist both
before and after giving effect to the consummation of such transaction, (2)
a Pro Forma Compliance Certificate of Nexstar Finance for the then
applicable Measurement Period giving effect to the consummation of such
transaction and (3) a certificate signed by a Responsible Officer of the
Borrowers, certifying that no Default or Event of Default exists or will
exist both before and after giving effect to the consummation of such
transaction; and
(e) the formation or creation of new Subsidiaries of the
Borrowers in accordance with Section 8.11(h).
---------------
8.05 Limitation on Indebtedness. The Borrowers will not, and will not
--------------------------
suffer or permit any of their respective Subsidiaries to, create, incur, issue,
assume, suffer to exist, or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, except:
(a) Indebtedness existing on the Effective Date and described on
Schedule 8.05(a) and any refinancings, refundings, renewals or extensions
----------------
thereof (without increasing, or shortening the maturity of, the principal
amount of such Indebtedness);
(b) Indebtedness incurred pursuant to any Loan Document;
(c) Indebtedness of any Subsidiary of a Borrower owing to such
Borrower or any Wholly-Owned Subsidiary of such Borrower, provided that any
--------
such Indebtedness (i) is permitted to be advanced by such Borrower or such
Wholly-Owned Subsidiary pursuant to the provisions of Section 8.11 and (ii)
------------
is not subordinated to any other Indebtedness of the obligor (other than
the Obligations);
(d) Indebtedness of the Borrowers and/or their respective
Subsidiaries secured by Liens permitted by Section 8.02(f);
---------------
(e) Interest Rate Protection Agreements required hereunder or in
respect of Indebtedness otherwise permitted hereby that bears interest at a
floating rate, so long as such agreements are not entered into for
speculative purposes;
(f) so long as no Default or Event of Default exists both before
and after giving effect to the incurrence thereof, Permitted Seller
Subordinated Indebtedness, in an aggregate principal amount not to exceed
$5,000,000 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 in excess of $10,000,000,
provided that prior to the incurrence of any such Indebtedness, the
--------
Borrowers shall have delivered to the Administrative Agent (i) a
certificate signed by a
80
Responsible Officer of Nexstar Finance, certifying (x) compliance with each
of the financial covenants contained in Section 8.09 of the Nexstar Credit
Agreement, based on financial projections of Nexstar Finance and its
Subsidiaries (such projections to include the Bastet/Mission Entities,
which shall be deemed Subsidiaries of Nexstar Finance for purposes of such
projections) 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, and (y) that no Default or Event
of Default (as such terms are defined in the Nexstar Credit Agreement)
exists or will exist both before and after giving effect to the incurrence
of such Indebtedness, (ii) a Pro Forma Compliance Certificate of Nexstar
Finance prepared as of the date of the incurrence of such Indebtedness and
(iii) a certificate signed by a Responsible Officer of the Borrowers,
certifying that no Default or Event of Default exists or will exist both
before and after giving effect to the incurrence of such Indebtedness;
(g) Guaranty Obligations of the Borrowers and their respective
Subsidiaries under the Bastet/Mission Guaranty of Nexstar Obligations; and
(h) Capital Lease Obligations and other Indebtedness (other than
Indebtedness for borrowed money) of the Borrowers and their respective
Subsidiaries which does not exceed $1,000,000 in an aggregate amount at any
given time.
8.06 Transactions with Affiliates.
----------------------------
The Borrowers will not, and will not permit any of their respective
Subsidiaries to, enter into, or cause, suffer, or permit to exist:
(a) any arrangement or contract with any of their 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
Bastet/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
Bastet/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; or
(d) compensation in excess of $200,000 per year to ▇▇▇▇▇ ▇▇▇▇▇,
increased by $50,000 for each additional Station acquired by a
Bastet/Mission Entity and decreased by $50,000 for each Station Disposed of
by a Bastet/Mission Entity.
8.07 Use of Credits; Compliance with Margin Regulations. The
--------------------------------------------------
Borrowers will not, and will not suffer or permit any of their respective
Subsidiaries to, use any portion of the
81
proceeds of the Loans or any Letter of Credit, directly or indirectly, to
purchase or carry Margin Stock other than in compliance with Regulations T, U
and X of the Federal Reserve Board. At no time shall the value of the Margin
Stock owned by any Bastet/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 Credit Party.
8.08 Environmental Liabilities. The Borrowers will not and will not
-------------------------
permit any of their respective Subsidiaries to violate any Environmental Law to
an extent sufficient to give rise to a Material Adverse Effect; and, without
limiting the foregoing, the Borrowers will not, and will not permit any of their
respective Subsidiaries or any other Person to, dispose of any Hazardous
Material into or onto, or (except in accordance with applicable law) from, any
Real Property owned, operated or otherwise used by the Borrowers or any of their
respective 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 Financial Covenants
-------------------
(a) Limitation on Capital Expenditures. The Borrowers will not,
----------------------------------
and will not permit any of their respective Subsidiaries to, make any
Capital Expenditures during any Fiscal Year which exceed, in the aggregate,
$1,000,000. Notwithstanding anything to the contrary contained in the
preceding sentence, (x) in the event the amount of Capital Expenditures
permitted to be made by the Borrowers and their respective Subsidiaries
pursuant to this Section 8.09(a) in any Fiscal Year (before giving effect
---------------
to any increase in such permitted expenditure amount pursuant to this
sentence) is greater than the amount of such Capital Expenditures made by
the Borrowers and their respective Subsidiaries during such Fiscal Year,
such excess may be carried forward and utilized to make Capital
Expenditures in the succeeding Fiscal Year, and (y) the amount of Capital
Expenditures permitted to be made by the Borrowers and their respective
Subsidiaries during any Fiscal Year shall be increased by an amount equal
to that portion of the proceeds of any Recovery Event not required to be
applied to prepay Loans pursuant to Section 2.07(c).
---------------
(b) Limitation on Film Cash Payments. The Borrowers will not,
--------------------------------
and will not permit any of their respective Subsidiaries to, make any Film
Cash Payments during any Fiscal Year which exceed, in the aggregate,
$750,000; provided that such amount shall be increased by $750,000 for each
--------
Station purchased or acquired pursuant to Section 8.04(d) during the Fiscal
---------------
Year in which such acquisition or purchase occurs and for each such Station
for each Fiscal Year thereafter.
8.10 Restricted Payments. The Borrowers shall not, and shall not
-------------------
permit any of their respective Subsidiaries to, make any Restricted Payment,
except:
82
(a) the Subsidiaries of a Borrower may make Restricted Payments
to such Borrower or to any Wholly Owned Subsidiary of such Borrower; and
(b) so long as no Default or Event of Default exists both before
and after the making thereof, the Borrowers may make payments with respect
to Permitted Seller Subordinated Indebtedness if, prior to the making of
such payments of cash interest, the Borrowers have delivered to the
Administrative Agent (x) a Pro Forma Compliance Certificate of Nexstar
Finance prepared as of the date of the making of each such payment, giving
effect to 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 (as such terms are defined in the Nexstar Credit Agreement) exists
both before and after giving effect to such payment, and (y) a certificate
signed by a Responsible Officer of the Borrowers, certifying that no
Default or Event of Default exists or will exist both before and after
giving effect to such payment.
8.11 Advances, Investments and Loans. The Borrowers will not, and
-------------------------------
will not permit any of their respective Subsidiaries to, lend money or credit or
make advances to any Person, or purchase or acquire any Capital Stock,
obligations or securities of, or any other 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 Borrowers and their respective Subsidiaries may invest in
cash and Cash Equivalents;
(b) the Borrowers and their respective Subsidiaries may enter
into Interest Rate Protection Agreements in compliance with Section
-------
8.05(e);
-------
(c) the Borrowers and their respective Subsidiaries may each make
equity contributions to the capital of their respective Subsidiaries;
(d) advances, loans and investments in existence on the Effective
Date and listed on Schedule 8.11(d) 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);
(e) the Borrowers and their respective Subsidiaries may make
loans and advances to their respective employees in an aggregate principal
amount not to exceed $50,000 at any time outstanding;
(f) as permitted pursuant to Section 8.04(d);
---------------
(g) the Borrowers may make intercompany loans and advances to
their respective Subsidiaries that are Credit Parties; and
(h) the Borrowers may establish or create new Wholly-Owned
Subsidiaries so long as (i) at least 30 days' prior written notice thereof
(or such lesser
83
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
(and/or a Subsidiary Guaranty Agreement), 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 7.15. 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.
8.12 Limitation on Business Activities.. The Borrowers and their
---------------------------------
Subsidiaries shall not engage in any business other than the Television
Broadcasting Business.
8.13 Sales or Issuances of Capital Stock. The Borrowers will not, and
-----------------------------------
will not permit any of their respective Subsidiaries to, sell or issue any of
their Capital Stock to any Person; provided that any Subsidiary of a Borrower
--------
may sell or issue Capital Stock to such Borrower or a Wholly-Owned Subsidiary of
such Borrower so long as relevant provisions of the Security Documents are
complied with in full.
8.14 No Waivers or Amendments. The Borrowers will not, and will not
------------------------
permit any of their respective Subsidiaries to, 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.
ARTICLE IX.
EVENTS OF DEFAULT
-----------------
9.01 Event of Default. Any of the following shall constitute an
----------------
"Event of Default":
-----------------
(a) Non-Payment. Any 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
84
(c) Specific Defaults. Any Borrower or any Parent Guarantor
-----------------
fails to perform or observe any term, covenant or agreement contained in
Sections 7.03(a), 7.05, 7.06, 7.07, 7.14 or Article VIII; or
---------------- ---- ---- ---- ---- ------------
(d) Other Defaults. Any Credit Party fails to perform or observe
--------------
any other term or covenant contained in this Agreement or any other Loan
Document, and such default shall continue unremedied for a period of 30
days after the date upon which written notice thereof is given to the
Borrowers by the Administrative Agent or any Bank; or
(e) Cross-Default. Any Bastet/Mission Entity (i) fails to make
-------------
any payment 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 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 (iii) 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 Borrower or any of its
Subsidiaries or an ERISA Affiliate under Title
85
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 Borrower or any of its Subsidiaries 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 Borrower or any of its Subsidiaries 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 Borrower or any of its Subsidiaries
involving in the aggregate a liability (not covered by independent third-
party insurance) as to any single or related series of transactions,
incidents or conditions, of $500,000 or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of 30 days
after the entry thereof; or
(j) Change of Control. Any Change of Control shall occur; or
-----------------
(k) Guaranty Agreements. Any Guaranty Agreement or any provision
-------------------
thereof shall for any reason cease to be in full force and effect or valid
and binding on or enforceable against any Credit Party or a Credit Party
shall so state in writing or bring an action to limit its obligations or
liabilities thereunder; or any Credit Party shall fail to perform any of
its obligations thereunder; or
(l) Security Documents. Any provision of any Security Document
------------------
other than the Mortgages shall (other than in accordance with the terms
thereof) cease to be in full force and effect or cease to create a valid,
security interest in the Collateral (other than an immaterial portion of
the Collateral) purported to be covered thereby or such security interest
shall cease to be a valid and first priority security interest (subject
only to Permitted Liens), or any party thereto shall default in the
performance of its obligations 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 or any Bank; or
(m) Termination of Material Licenses. Any Borrower or any of its
--------------------------------
Subsidiaries shall fail to have all required authorizations and licenses
(including FCC Licenses), the failure 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:
86
(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 Borrowers Cash Collateralize Letter of Credit
Obligations to the extent of outstanding and wholly or partially undrawn
Letters of Credit, whereupon the Borrowers shall so Cash Collateralize such
Letters of Credit to that extent;
(d) exercise on behalf of itself, the Issuing Bank and the Banks
all rights and remedies available to it, the Issuing Bank and the Banks
under the Loan Documents or applicable laws;
(e) apply any cash collateral as provided in Section 3.07 to the
------------
payment of outstanding Obligations; and/or
(f) take all actions to enforce the rights and remedies of the
Collateral Agent under the Security Documents;
provided, however, that upon the occurrence of any event specified
--------
above in Section 9.01(f) or (g) with respect to any Credit Party (in the case of
--------------- ---
clause (i) of paragraph (g) upon the expiration of the 60-day period mentioned
---------- -------------
therein), the obligation of each Bank to make Loans and any obligation of the
Issuing Bank to issue Letters of Credit shall automatically terminate, and all
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 each 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.
ARTICLE X.
THE GUARANTY
------------
10.01 Guaranty from the Guarantor Parties.
-----------------------------------
(a) In order to induce the Banks to make Loans to the Borrowers
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
87
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;
(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;
88
(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 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
89
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.
(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
90
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.
10.02 Guaranty Limited. The obligations of each Guarantor Party under
----------------
this Article X and the joint and several obligations of each Borrower under
---------
Section 2.01(c) shall be limited to the extent necessary to prevent the guaranty
---------------
provided under this Article X and such joint and several obligations of each
---------
Borrower under Section 2.01(c) or any payment pursuant to this Article X 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.
ARTICLE XI.
THE ADMINISTRATIVE AGENT, THE ISSUING BANK
AND THE LEAD ARRANGER AND BOOK MANAGER
--------------------------------------
11.01 Appointment and Authorization.
-----------------------------
(a) Each of the Banks and the Issuing Bank hereby irrevocably
appoint, designate and authorize 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 in this
Agreement 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 the Issuing Bank, 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.
91
(b) The Issuing Bank shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Article XI 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 Letter of Credit Applications pertaining to the Letters of
Credit as fully as if the term "Administrative Agent," as used in this
--------------------
Article XI, included the Issuing Bank with respect to such acts or
----------
omissions, and (ii) as additionally provided in this Agreement with respect
to the Issuing Bank.
11.02 Delegation of Duties. The Administrative Agent may execute any
--------------------
of its 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 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 with reasonable care.
11.03 Liability of Administrative Agent. None of the Administrative
---------------------------------
Agent, its Affiliates or any of their officers, directors, employees, agents or
attorneys-in-fact (collectively, the "Administrative Agent-Related Persons")
------------------------------------
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 (except
for their own gross negligence or willful misconduct), or (b) be responsible in
any manner to any of the Banks for any recital, statement, representation or
warranty made by any Credit Party or any Affiliate thereof, or any officer
thereof, contained in this Agreement 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 Administrative
Agent-Related Person shall be under any obligation to any Bank 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 of
any Credit Party.
11.04 Reliance by Administrative Agent.
--------------------------------
(a) The Banks agree that the Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone 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 the Credit
Parties), independent accountants and other experts selected by the
Administrative Agent. The Banks agree that the Administrative Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Majority Banks or, as required by Section
-------
12.01, all the 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 Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, under
this Agreement or
92
any other Loan Document in accordance with a request or consent of the
Majority Banks or, as required by Section 12.01, all the Banks, and such
-------------
request and any action taken or failure to act pursuant thereto shall be
binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Sections 5.01 and 5.02 as they relate to the occurrence of the
------------- ----
Effective Date and the obligation of each Bank to make Loans hereunder and
the obligation of the Issuing Bank to issue Letters of Credit on the
Initial Borrowing Date, each Bank that has signed a counterpart hereof and
delivered the same to the Administrative Agent shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or
other matter either sent by the Administrative Agent to such Bank for
consent, approval, acceptance or satisfaction, or required hereunder to be
consented to or approved by or acceptable or satisfactory to such Bank,
unless an officer of the Administrative Agent responsible for the
transactions contemplated by the Loan Documents shall have received notice
from such Bank prior to the Effective Date specifying in reasonable detail
its objection thereto and such objection shall not have been withdrawn by
notice to the Administrative Agent to that effect.
(c) Neither the Syndication Agent, in its capacity as such, nor
the Documentation Agent, in its capacity as such, shall have any rights,
duties or obligations hereunder or under any of the Loan Documents.
11.05 Notice of Default. The Administrative Agent shall not be
-----------------
deemed to have knowledge or notice of the occurrence of any Default or Event of
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 or the Issuing Bank, unless the Administrative Agent shall have received
written notice from a Bank or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give notice thereof to the Banks and the
Issuing Bank. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be requested by the Majority Banks in
accordance with Article IX; provided, however that unless and until the
---------- --------
Administrative Agent shall have received any such request, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable or in the best interest of the Banks.
11.06 Credit Decision. Each Bank expressly acknowledges that none of
---------------
the Administrative Agent-Related Persons have made any representation or
warranty to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of any Credit Party or any Affiliate of any
Credit Party, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Bank. Each Bank represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent 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 Affiliates, and all applicable
bank regulatory laws relating to the transactions contemplated thereby, and made
its own decision to enter into this Agreement and extend credit to the Borrowers
hereunder. Each Bank
93
also represents that it will, independently and without reliance upon the
Administrative Agent 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 Credit Parties and their
Affiliates. Except for notices, reports and other documents expressly herein
required to be furnished to the Banks by the Administrative Agent, the
Administrative Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of the
Credit Parties and their Affiliates which may come into the possession of any of
the Administrative Agent-Related Persons.
11.07 Indemnification. Whether or not the transactions contemplated
---------------
hereby shall be consummated, the Banks shall indemnify, upon demand, each of the
Administrative Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Borrowers and without limiting the obligation of the Borrowers to
do so), ratably from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and disbursements
of any kind whatsoever which may at any time (including at any time following
the expiration of the Letters of Credit and the repayment of the Loans and the
termination or resignation of the Administrative Agent) be imposed on, incurred
by or asserted against any such Person in any way relating to or arising out of
this Agreement, any other Loan Document or any document contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by any such Person under or in connection with
any of the foregoing; provided, however that no Bank shall be liable for the
--------
payment to any of the Administrative Agent-Related Persons of any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements to the extent arising from such Person's
gross negligence or willful misconduct. 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 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 Borrowers. Without limiting the
generality of the foregoing, if the Internal Revenue Service or any other
Governmental Authority of the United States or other jurisdiction asserts a
claim that the Administrative Agent did not properly withhold tax from amounts
paid to or for the account of any Bank (because the appropriate form was not
delivered, was not properly executed, or because such Bank failed to notify the
Administrative Agent of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason)
such Bank shall indemnify the Administrative Agent fully for all amounts paid as
a result thereof, directly or indirectly, by the Administrative Agent as tax or
otherwise, including penalties and interest, and including any taxes imposed by
any jurisdiction on the amounts payable to the Administrative Agent under this
Section 11.07, together with all costs and expenses (including Attorney Costs).
-------------
The obligation of the Banks in this Section 11.07 shall survive the payment of
-------------
all Obligations hereunder.
94
11.08 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 or other business with, 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. With respect to its Loans and participation in Letters
of Credit, Bank of America shall have the same rights and powers under this
Agreement and the other Loan Documents as any other Bank and may exercise the
same as though it were not the Administrative Agent or an Issuing Bank, and the
terms "Bank" and "Banks" shall include Bank of America in its individual
---- -----
capacity.
11.09 Successor Administrative Agent. The Administrative Agent may
------------------------------
resign as Administrative Agent upon 30 days' notice to the Banks and the
Borrowers. If the Administrative Agent shall resign as Administrative Agent
under this Agreement, the Majority Banks shall appoint from among the Banks a
successor agent for the Banks which successor agent shall be subject to the
approval of the Borrowers if no Event of Default has occurred and is continuing,
such approval not to be unreasonably withheld or delayed. If no successor 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 Borrowers if no Event of
Default has occurred and is continuing, such approval not to be unreasonably
withheld or delayed, a successor agent from among the Banks or any Bank
Affiliate. Any successor Administrative Agent appointed under this Section
-------
11.09 shall be a commercial bank organized under the laws of the United States
-----
or any State thereof, and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
--------------------
means such successor agent and the retiring Administrative Agent's appointment,
powers and duties as Administrative Agent shall be terminated. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Article XI 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 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.
11.10 The Lead Arranger and Book Manager. The Lead Arranger and Book
----------------------------------
Manager, in such capacity, shall have no duties or responsibilities, and shall
incur no obligations or liabilities, under this Agreement. Each Bank
acknowledges that it has not relied, and will not rely, on the Lead Arranger and
Book Manager in deciding to enter into this Agreement.
ARTICLE XII.
MISCELLANEOUS
-------------
12.01 Amendments and Waivers.
----------------------
95
(a) Subject to the terms and provisions of Sections 2.01(b) 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 any
Borrower or any other Credit Party therefrom, shall be effective unless the
same shall be in writing and signed by each Borrower, each Credit Party
affected thereby 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, however that no such waiver, amendment, or consent
--------
shall, unless in writing and signed by all the Banks and acknowledged by
the Administrative Agent, 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); and provided further that no such waiver, amendment or consent
--------
shall, unless in writing and signed by all the Banks affected thereby and
acknowledged by the Administrative Agent, do any of the following:
(i) increase (except as provided in Sections 2.01(b) 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;
-------------
(ii) increase (except as provided in Sections 2.01(b) and
----------------
2.16) or extend the Aggregate Commitment;
----
(iii) extend the Maturity Date;
(iv) 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 amounts
payable hereunder or under any other Loan Document or reduce the
Applicable Margin provided for herein;
(v) 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;
(vi) amend this Section 12.01, change the percentage set
-------------
forth in definition of the term "Majority 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;
(vii) 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;
and, provided further that (x) no amendment, waiver or consent shall,
--------
unless in writing and signed by the Issuing Bank in addition to the
Majority Banks 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, (y) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Majority
Banks or all
96
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
(z) 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. Notwithstanding anything
to the contrary contained in this Agreement, Interest Rate Protection
Agreements shall not be deemed to be Loan Documents for purposes of this
Section 12.01(a).
----------------
(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 (vii), 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 Borrowers, to the address or
facsimile number specified for notices on the applicable signature page
hereof; (ii) if to the Administrative Agent, the Issuing Bank or any Bank,
to the notice address set forth on Schedule 1.01(A); or (iii) as directed
----------------
to the Borrowers or the Administrative Agent, to such other address as
shall be designated by such party in a written notice to the other parties,
and as directed to each other party, at such other address as shall be
designated by such other party in a written notice to the Borrowers and the
Administrative Agent.
(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 Borrowers acknowledge and agree that any agreement of the
Administrative Agent, the Issuing Bank and the Banks set forth in Articles
--------
II and III herein to receive certain notices by telephone and facsimile is
-- ---
solely for the convenience and at the request of the Borrowers. The
Administrative Agent, the Issuing Bank and the Banks shall be entitled to
rely on the authority of any Person purporting to be a Person authorized by
any Borrower to give such notice and the Administrative Agent, the Issuing
97
Bank and the Banks shall not have any liability to such 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 Borrowers to repay
the Loans and drawings under Letters of Credit shall not be affected in any
way or to any extent by any failure by the Administrative Agent, the
Issuing Bank and the Banks to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent,
the Issuing Bank and the Banks of a confirmation which is at variance with
the terms understood by the Administrative Agent, the Issuing Bank or the
Banks to be contained in the telephonic or facsimile notice.
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 Borrowers 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, delivery, administration, syndication of the Commitments under
and execution of, and any amendment, supplement, waiver 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 Loans, 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) 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 and filing costs, fees and expenses,
incurred or sustained by the Administrative Agent in connection with the
matters referred to under paragraphs (a) and (b) of this Section 12.04.
-------------- --- -------------
12.05 INDEMNITY. WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY
---------
SHALL BE CONSUMMATED, THE BORROWERS SHALL
98
PAY, INDEMNIFY, AND HOLD EACH BANK, THE ISSUING BANK, THE ADMINISTRATIVE AGENT
AND OF THEIR RESPECTIVE OFFICERS, DIRECTORS, OTHER AFFILIATES, EMPLOYEES,
COUNSEL, AGENTS AND ATTORNEYS-IN-FACT (EACH, AN "INDEMNIFIED PERSON") HARMLESS
------------------
FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, CHARGES, EXPENSES OR DISBURSEMENTS
(INCLUDING ATTORNEY COSTS) OF ANY KIND OR NATURE WHATSOEVER WITH RESPECT TO (A)
ANY INVESTIGATION, LITIGATION OR PROCEEDING (INCLUDING ANY INSOLVENCY
PROCEEDING) RELATED TO THIS AGREEMENT OR THE LOAN DOCUMENTS OR THE LOANS OR THE
LETTERS OF CREDIT, OR THE USE OF THE PROCEEDS THEREOF, WHETHER OR NOT ANY
INDEMNIFIED PERSON IS A PARTY THERETO AND (B) THE ACTUAL OR ALLEGED PRESENCE OF
HAZARDOUS MATERIALS IN THE AIR, SURFACE WATER OR GROUNDWATER OR ON THE SURFACE
OR SUBSURFACE OF ANY PROPERTY OWNED OR AT ANY TIME OPERATED BY ANY CREDIT PARTY,
THE GENERATION, STORAGE, TRANSPORTATION, HANDLING OR DISPOSAL OF HAZARDOUS
MATERIALS AT ANY LOCATION BY ANY CREDIT PARTY, WHETHER OR NOT OWNED OR OPERATED
BY ANY CREDIT PARTY, THE NONCOMPLIANCE OF ANY PROPERTY WITH ENVIRONMENTAL LAWS
(INCLUDING APPLICABLE PERMITS THEREUNDER) APPLICABLE TO ANY PROPERTY, OR ANY
ENVIRONMENTAL CLAIM ASSERTED AGAINST ANY CREDIT PARTY OR ANY PROPERTY OWNED OR
AT ANY TIME OPERATED BY ANY CREDIT PARTY (ALL THE FOREGOING DESCRIBED IN (A) AND
(B) ABOVE, COLLECTIVELY, THE "INDEMNIFIED LIABILITIES") INCLUDING INDEMNIFIED
-----------------------
LIABILITIES ARISING FROM THE NEGLIGENCE OF SUCH INDEMNIFIED PERSON; PROVIDED,
--------
HOWEVER, THAT THE BORROWERS SHALL HAVE NO OBLIGATION HEREUNDER TO ANY
INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES ARISING FROM THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY INDEMNIFIED PERSON AS THE SAME IS
DETERMINED BY A FINAL JUDGMENT OF A COURT OF COMPETENT JURISDICTION. THE
OBLIGATIONS IN THIS SECTION 12.05 SHALL SURVIVE PAYMENT OF ALL 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 no Borrower may 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, with the written consent of the Administrative
Agent and, so long as no Default or Event of Default shall then exist, the
Borrowers, in each case which consent shall not be unreasonably withheld,
at any time assign and delegate to one or more Eligible Assignees (each an
"Assignee") all, or any part of the Loans, the Commitments and the other
--------
rights and obligations of such Bank hereunder; provided, however, that (i)
--------
any such assignment to an Eligible Assignee shall be in a minimum amount
equal to $2,500,000 or the then remaining Commitment of such Bank and (ii)
provided further, that the Borrowers, the Issuing Bank and the
--------
Administrative
99
Agent may continue to deal solely and directly with such Bank in connection
with the interest so assigned to an Assignee until (x) written notice of
such assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to the
Borrowers and the Administrative Agent by such Bank and the Assignee; (y)
such Bank and its Assignee shall have delivered to the Borrowers and the
Administrative Agent an Assignment and Assumption; and (z) in the case of
any assignment to an Assignee which is not already a Bank or its Affiliate,
the assignor Bank or Assignee has paid to the Administrative Agent a
processing fee in the amount of $3,500; provided that with respect to a
--------
to a Bank or a Bank Affiliate such processing fee shall be in the amount of
$1,500.
(b) From and after the date that the Administrative Agent
notifies the assignor Bank that the requirements of Section 12.07(a) above
----------------
are satisfied, (i) the Assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Assumption, shall have the rights and
obligations of a Bank under the Loan Documents, and (ii) the assignor Bank
shall, to the extent that rights and obligations hereunder and under the
other Loan Documents have been assigned by it pursuant to such Assignment
and Assumption, relinquish its rights and be released from its obligations
under the Loan Documents. Anything herein to the contrary notwithstanding,
any Bank assigning all of its Loans, Commitments and other rights and
obligations hereunder to an Assignee shall continue to have the benefit of
all indemnities hereunder following such assignment.
(c) Immediately upon each Assignee's making its payment under the
Assignment and Assumption, this Agreement shall be deemed to be amended to
the extent, but only to the extent, necessary to reflect the addition of
the Assignee and the resulting adjustment of the Aggregate Commitment
arising therefrom. Any Commitment or Incremental Commitment allocated to
an Assignee shall reduce the Commitment or Incremental Commitment, as
applicable, of the assigning Bank pro tanto.
--- -----
(d) Any Bank may at any time sell to one or more banks or other
Persons not Affiliates of any Credit Party (a "Participant") participating
-----------
interests in any Loans, Commitment or Incremental Commitment of such Bank
and the other interests of such Bank (the "Originating Bank") hereunder and
----------------
under the other Loan Documents; provided, however, that (i) the Originating
--------
Bank's obligations under this Agreement shall remain unchanged, (ii) the
Originating Bank shall remain solely responsible for the performance of
such obligations, (iii) the Borrowers, the Issuing Bank and the
Administrative Agent shall continue to deal solely and directly with the
Originating Bank in connection with the Originating Bank's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no
Bank shall transfer or grant any participating interest under which the
Participant shall have rights to approve any amendment to, or any consent
or waiver with respect to, this Agreement or any other Loan Document,
provided that such Participant shall have the right to approve any
--------
amendment, consent or waiver described in clauses (i), (iii) and (iv) of
------------------ ----
the second proviso to Section 12.01. In the case of any such
-------------
participation, the Participant shall be entitled to the benefit of Sections
--------
4.01, 4.03 and 12.05, subject to the same limitations, as though it were
---- ---- -----
also a Bank hereunder, subject to paragraph (f) below, and if amounts
-------------
outstanding under this
100
Agreement are due and payable and unpaid, or shall
have been declared or shall have become due and payable upon the occurrence
of an Event of Default, each Participant shall, to the extent permitted
under applicable law, be deemed to have the right of set-off in respect of
its participating interest in amounts owing under this Agreement to the
same extent as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement.
(e) Notwithstanding any other provision contained in this
Agreement or any other Loan Document to the contrary, any Bank may assign
all or any portion of the Loans held by it to any Federal Reserve Bank or
the United States Treasury as collateral security pursuant to Regulation A
of the Federal Reserve Board and any operating circular issued by such
Federal Reserve Bank, provided that any payment in respect of such assigned
--------
Loans made by the Borrowers or for the account of the assigning or pledging
Bank in accordance with the terms of this Agreement shall satisfy the
Borrowers' obligations hereunder in respect to such assigned Loans to the
extent of such payment. No such assignment shall release the assigning
Bank from its obligations hereunder.
(f) No Participant shall be entitled to receive any greater
payment under any provision of this Agreement than such Originating Bank
would have been entitled to receive with respect to the rights transferred
unless such transfer is made with the Borrowers' prior written consent.
12.08 Confidentiality. The Administrative Agent, the Collateral
---------------
Agent, the Issuing Bank 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 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,
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 Borrowers authorize the Administrative Agent, the Collateral
Agent, the Issuing Bank and each Bank to disclose to any Participant or Assignee
(each, a
101
"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 Borrowers, such
--------
Transferee agrees in writing to the Borrowers 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 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 Borrowers 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 the 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 Borrowers 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 Issuing Bank or any Bank shall have any
obligation to any Person not a party to this Agreement or any other Loan
Document.
102
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.
(b) JURISDICTION. 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
THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. 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. THE PARTIES HERETO EACH WAIVE THEIR
--------------------
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE PARTIES HERETO EACH AGREE
THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE
THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION 12.14 AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH
-------------
SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR
THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
12.15 Effectiveness. This Agreement shall become effective on the
-------------
date (the "Effective Date") on which (i) each Borrower, the Administrative
--------------
Agent, the Issuing Bank, the Syndication Agent, the Documentation Agent and each
Bank shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of
103
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 11.04(b) (or waived by the
----------------
Majority Banks, or to the extent required by Section 12.01 of the Credit
-------------
Agreement, all of 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 11.04(b),
---- ----------------
upon the satisfaction of the condition described in clause (i) of the
immediately preceding sentence and upon the Administrative Agent's good faith
determination that the conditions described in clause (ii) of the immediately
preceding sentence have been met, then the Effective Date shall have been deemed
to have occurred, regardless of any subsequent determination that one or more of
the conditions thereto had not been met (although the occurrence of the
Effective Date shall not release any Borrower from any liability for failure to
satisfy one or more of the applicable conditions contained in Sections 5.01 and
-------------
5.02).
----
12.16 Additional Borrowers. If on any date after the Effective Date
--------------------
▇▇▇▇▇ ▇▇▇▇▇ or any Borrower acquires any additional domestic Wholly-Owned
Subsidiary, upon the written request of the Borrowers, 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 Intentionally Left Blank; Signature Pages Follow.]
104
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
BORROWERS:
BASTET BROADCASTING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Address for notices:
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute
notice) to:
Nexstar Broadcasting Group, L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
[Credit Agreement Signature Page]
MISSION BROADCASTING OF
WICHITA FALLS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Address for notices
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute
notice) to:
Nexstar Broadcasting Group, L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:(▇▇▇) ▇▇▇-▇▇▇▇
[Credit Agreement Signature Page]
ADMINISTRATIVE AGENT, SYNDICATION AGENT,
DOCUMENTATION AGENT, ISSUING BANK AND BANKS:
BANK OF AMERICA, N.A.,
as Administrative Agent, as Issuing Bank
and as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
BARCLAYS BANK PLC,
as Syndication Agent and as a Bank
By: /s/ ▇▇▇▇▇▇ Capparis
------------------------------
Name: ▇▇▇▇▇▇ Capparis
Title: Director
FIRST UNION NATIONAL BANK,
as Documentation Agent and as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
FIRSTAR BANK, N.A.,
as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
CIBC INC,
as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
[Credit Agreement Signature Page]
Schedule 1.01
NOTICES ADDRESSES AND LENDING OFFICES
-------------------------------------
Administrative Agent: Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Issuing Bank: Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Notices Domestic Lending Office (if
------- ---------------------------
different)
----------
Banks: Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
CIBC Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
First Union National Bank First Union National Bank
One First Union Center Charlotte Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ NC0760
Attention: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Attention: ▇▇▇ ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Schedule 1.01
Schedule 1.01
Notices Domestic Lending Office (if different)
-------- --------------------------------------
Barclays Bank PLC Barclays Bank PLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Firstar Bank, N.A. Firstar Bank, N.A.
Firstar Plaza Firstar Corporate Loan Services
7th & Washington, 12th Floor ▇.▇. ▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Schedule 1.01
Schedule 2.01
COMMITMENTS
-----------
Bank Revolving Commitment
---- --------------------
Bank of America, N.A. $21,109,090.91
Barclays Bank PLC $ 7,818,181.82
CIBC Inc. $ 4,690,909.09
Firstar Bank, N.A. $ 4,690,909.09
First Union National Bank $ 4,690,909.09
--------------
TOTAL: $43,000,000.00
-----
Schedule 2.01
Schedule 6.16
FCC LICENSES
------------
Schedule 6.16
SCHEDULE 6.16 - FCC LICENSES
----------------------------
Basket Broadcasting, Inc.
WYOU(TV), Scranton, Pennsylvania
--------------------------------
Facility Description Call Sign Exp. Date
TV Broadcast Station License WYOU 08/01/2007
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
WFXP(TV), Erie, Pennsylvania
----------------------------
Facility Description Call Sign Exp. Date
TV Broadcast Station License WFXP 08/01/2007
TV Studio Transmitter Link WLD-767 08/01/2007
Mission Broadcasting of Wichita Falls, Inc.
KJTL(TV), Wichita Falls, Texas
------------------------------
Facility Description Call Sign Exp. Date
TV Broadcast Station License KJTL 08/01/2006
LPTV Broadcast Station License KJBO-LP 08/01/2006
TV Translator License K47DK 08/01/2006
TV Translator License K53DS 08/01/2006
TV Studio Transmitter Link WLD-942 08/01/2006
TV Studio Transmitter Link WLJ-748 08/01/2006
SCHEDULE 6.17-SUBSIDIARIES
--------------------------
The full and correct legal name of the immediate parent(s) of each such
Subsidiary and the full and correct legal name of each Subsidiary of each
Borrower that is a Certifying Party hereunder is/are:
Parent Subsidiary
------ ----------
Mission Broadcasting of Wichita Falls, Inc. None
Bastet Broadcasting, Inc. None
Schedule 6.21
NETWORK AFFILIATION AGREEMENTS
------------------------------
Schedule 6.21
SCHEDULE 6.21 - NETWORK AFFILIATION AGREEMENTS
----------------------------------------------
Bastet Broadcasting, Inc.
WYOU(TV), Scranton, Pennsylvania
CBS Television Network
Expiration Date - December 31, 2007
WFXP(TV), Erie, Pennsylvania
FOX Television Network
Expiration Date - March 31, 2006
Mission Broadcasting of Wichita Falls, Inc.
KJTL(TV), Wichita Falls, Texas
FOX Television Network
Expiration Date - November 1, ▇▇▇▇
▇▇▇▇-▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
UPN Television Network
Expiration Date - September 1, 2004
Schedule 8.05(a)
EXISTING INDEBTEDNESS
---------------------
None
Schedule 8.05(a)
Schedule 8.11(d)
INVESTMENTS
-----------
Schedule 8.11(d)