Exhibit 10.10
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FOURTH AMENDMENT TO CREDIT AGREEMENT, LIMITED CONSENT AND LIMITED WAIVER
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT, LIMITED CONSENT AND LIMITED
WAIVER (this "Amendment"), dated as of June 5, 2002, is among BASTET
BROADCASTING, INC., a Delaware corporation ("Bastet"), MISSION BROADCASTING OF
WICHITA FALLS, INC., a Delaware corporation ("Mission Wichita Falls"), MISSION
BROADCASTING OF JOPLIN, INC., a Delaware corporation (together with Bastet and
Mission Wichita Falls, collectively, the "Borrowers"), the several Banks (as
such term is defined in the hereinafter described Credit Agreement) parties to
this Amendment, and BANK OF AMERICA, N.A., as Administrative Agent for the Banks
(in such capacity, the "Administrative Agent").
R E C I T A L S:
A. The Borrowers, the Administrative Agent, Barclays Bank PLC, as
Syndication Agent, First Union National Bank, as Documentation Agent, and the
several Banks parties thereto entered into that certain Credit Agreement dated
as of January 12, 2001 (as amended by that certain First Amendment to Credit
Agreement dated as of May 17, 2001, that certain Second Amendment to Credit
Agreement dated as of June 14, 2001, and that certain Third Amendment to Credit
Agreement, Limited Consent and Assumption Agreement dated as of November 14,
2001, the "Credit Agreement"). Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement.
B. The Borrowers have advised the Administrative Agent that one or more
of them wish (i) to borrow up to $20,000,000 in aggregate principal amount (the
"Initial Nexstar-Bastet/Mission Loan") from Nexstar Finance, Inc., a Delaware
corporation ("Nexstar Finance"), 100% of the proceeds of which Initial
Nexstar-Bastet/Mission Loan will be used, immediately upon the receipt thereof
by such Borrower(s), to repay outstanding Loans, and, (ii) from time to time
after the Initial Nexstar-Bastet/Mission Loan, to borrow additional amounts from
Nexstar Finance or other Nexstar Entities (together with the Initial
Nexstar-Bastet/Mission Loans, collectively, the "Nexstar-Bastet/Mission Loans"),
the aggregate outstanding principal amount of which Nexstar-Bastet/Mission Loans
(inclusive of the outstanding principal amount of the Initial
Nexstar-Bastet/Mission Loan) shall not exceed $30,000,000 at any time.
C. The incurrence and repayment of the Nexstar-Bastet/Mission Loans are
currently prohibited by Sections 8.05 and 8.10 of the Credit Agreement and
require certain amendments and consents under the Nexstar Credit Agreement to be
made and granted as contemplated by that certain Second Amendment to Amended and
Restated Credit Agreement, Limited Consent and Limited Waiver to be dated as of
even date herewith (the "Nexstar Amendment") among the Ultimate Nexstar Parent,
certain of its Subsidiaries, Nexstar Finance, certain of the Nexstar Banks and
the Administrative Agent for the Nexstar Banks.
D. As a result of certain events of default under the Nexstar Credit
Agreement more particularly described in the Nexstar Amendment, Events of
Default exist under Section 9.01(e) of the Credit Agreement (collectively, the
"Cross-Defaults").
E. The Borrowers have requested that the Banks (i) amend the Credit
Agreement to permit the incurrence and repayment of the Nexstar-Bastet/Mission
Loans, (ii) consent to the execution and delivery of the Nexstar Amendment, and
(iii) waive the Cross-Defaults.
F. The several Banks parties to this Amendment (which Banks constitute
the Majority Banks required under the Credit Agreement to grant the consents and
waivers and effect the amendments intended hereby) are willing to grant the
above-described consents and waivers and to agree to the above-described
amendments, subject in each case to the performance and observance in full of
each of the covenants, terms and conditions, and in reliance upon all of the
representations and warranties of the Borrowers, set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants,
terms and conditions, and in reliance upon the representations and warranties,
in each case contained herein, the parties hereto agree hereby as follows:
Section 1. AMENDMENTS. Subject to the covenants, terms and conditions
set forth herein and in reliance upon the representations and warranties of the
Borrowers herein contained, the parties to this Amendment hereby agree to amend
the Credit Agreement as of the Amendment Effective Date (as hereinafter defined)
as follows:
(a) Section 1.01 of the Credit Agreement is amended to add the
following definitions of "Initial Nexstar-Bastet/Mission Loan",
"Nexstar-Bastet/Mission Loan" and "Nexstar Group" in the appropriate
alphabetical positions therein:
"Initial Nexstar-Bastet/Mission Loan" means a loan up to
$20,000,000 in aggregate principal amount from Nexstar Finance to one
or more of the Borrowers, 100% of the proceeds of which will be used,
immediately upon the receipt thereof by such Borrower(s), to repay
outstanding Loans.
"Nexstar-Bastet/Mission Loan" means a loan made by a Nexstar
Entity to one or more of the Borrowers in compliance with Section
8.05(i) (including the Initial Nexstar-Bastet/Mission Loan).
"Nexstar Group" means Nexstar Broadcasting Group, Inc., a
Delaware corporation formerly known as Nexstar Equity Corp.
(b) Section 8.05 of the Credit Agreement is amended to (i) delete the
word "and" from the end of clause (g), (ii) delete the period at the end of
clause (h) and insert a semicolon and the word "and" in lieu thereof, and (iii)
to add a new clause (i) that reads as follows:
"(i) after such time as the Ultimate Nexstar Parent has merged
with and into Nexstar Group and Nexstar Group has assumed all of the
obligations of the Ultimate Nexstar Parent under the Nexstar Loan
Documents and the Nexstar Guaranty Agreement,
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(i) Indebtedness with respect to the Initial Nexstar Bastet/Mission
Loan, and (ii) from time to time after the borrowing of the Initial
Nexstar-Bastet/Mission Loan, Indebtedness with respect to additional
loans from Nexstar Finance or other Nexstar Entities; provided in each
case that (A) the aggregate outstanding principal amount of
Nexstar-Bastet/Mission Loans (inclusive of the outstanding principal
amount of the Initial Nexstar-Bastet/Mission Loan) may not exceed
$30,000,000 at any time, (B) each such loan is evidenced by a demand
promissory note in form and substance reasonably satisfactory to the
Administrative Agent and which promissory note is delivered to the
Collateral Agent (as that term is defined in the Nexstar Credit
Agreement) by the Nexstar Entity making such loan, together with any
necessary endorsements, to be held as Pledged Collateral (as that term
is defined in the Nexstar Credit Agreement); (C) no such loan will,
alone or in the aggregate with any other such loans, violate any
Requirement of Law applicable to the Nexstar Entities or the
Bastet/Mission Entities (including, without limitation, all terms and
conditions of all FCC Licenses covering the Stations and all rules,
regulations and administrative orders of the FCC) and, prior to the
making of each such loan, Nexstar Finance shall have delivered to the
Administrative Agent a certificate to such effect executed on Nexstar
Finance's behalf by a Responsible Officer of Nexstar Finance, and (D)
no Default or Event of Default exists both before and after the making
of such loan."
(c) Section 8.10 of the Credit Agreement is amended to delete the word
"and" from the end of clause (a), to delete the period (".") at the end of
clause (b) and insert a semicolon (";") and the word "and" in lieu thereof, and
to add a new clause (c) immediately after clause (b) that reads as follows:
"(c) the Borrowers may repay the Nexstar-Bastet/Mission Loans
from time to time in whole or in part provided no Default or Event of
Default exists before, or will exist immediately after, any such
repayment."
The amendments set forth in this Section 1 are limited to the extent
specifically set forth above and no other terms, covenants or provisions of the
Credit Agreement are intended to be effected hereby.
Section 2. LIMITED CONSENTS. Subject to the covenants, terms and
conditions set forth in this Amendment, and in reliance upon the representations
and warranties of the Borrowers herein contained, the several Banks parties to
this Amendment consent to the execution, delivery and performance by the parties
thereto of the Nexstar Amendment and all transactions described therein.
The consents set forth in this Section 2 are limited to the extent specifically
set forth above and no other terms, covenants or provisions of the Credit
Agreement or any other Loan Document are intended to be affected hereby.
Section 3. LIMITED WAIVERS. Subject to the covenants, terms and
conditions set forth in this Amendment, and in reliance upon the representations
and warranties of the Borrowers made herein, the several Banks parties to this
Amendment waive the Events of
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Default under Section 9.01(e) of the Credit Agreement caused by the Existing
Defaults (as defined in the Nexstar Amendment).
The waivers set forth in this Section 3 are limited to the extent specifically
set forth above and no terms, covenants or provisions of the Credit Agreement or
any other Loan Document are intended to be affected hereby except to the extent
specifically waived above.
Section 4. CONDITIONS PRECEDENT. The parties hereto agree that this
Amendment and the consents, waivers and amendments to the Credit Agreement
contained herein shall not be effective until the satisfaction of each of the
following conditions precedent:
(a) Execution and Delivery of this Amendment. The Administrative Agent
shall have received a copy of this Amendment executed and delivered by each of
the applicable Credit Parties and by Banks constituting Majority Banks.
(b) Representations and Warranties. Each of the representations and
warranties made in this Amendment shall be true and correct on and as of the
Amendment Effective Date as if made on and as of such date, both before and
after giving effect to this Amendment.
(c) Fees and Expenses. The Administrative Agent shall have received for
its own account and for the account of each Bank party to this Amendment, an
amendment fee for each Bank party to this Amendment (collectively, the
"Amendment Fees") in an amount equal to the product of (i) 0.050%, multiplied
by, (ii) such Bank's Commitment as computed on the Amendment Effective Date. The
Amendment Fees shall be nonrefundable and shall be deemed to have been earned in
full when this Amendment has been executed and delivered to the Administrative
Agent by the Borrowers and Banks constituting the Majority Banks, whether or not
the Amendment Effective Date occurs. In addition, the Borrowers shall pay the
estimated fees, costs and out-of-pocket expenses incurred by counsel to the
Administrative Agent in connection with the preparation, negotiation, execution
and delivery of this Amendment, the Nexstar Amendment, and all transaction
contemplated hereby and thereby.
(d) Effectiveness of the Nexstar Amendment. All conditions precedent to
the effectiveness of the Nexstar Amendment (other than the conditions set forth
in the proviso to Section 4(a) of the Nexstar Amendment) shall have been
satisfied in a manner reasonably satisfactory to the Administrative Agent of
such credit facility.
Section 5. REPRESENTATIONS AND WARRANTIES. To induce the Administrative
Agent and the several Banks parties hereto to enter into this Amendment and to
grant the consents, waivers and amendments contained herein and in the Nexstar
Amendment, each of the Borrowers represents and warrants to the Administrative
Agent and the Banks as follows:
(a) Authorization; No Contravention. The execution, delivery and
performance by the Borrowers of this Amendment have been duly authorized by all
necessary partnership, corporate or limited liability company action, as
applicable, and do not and will not (i) contravene the terms of any Charter
Documents of the Borrowers, (ii) conflict with or result in
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any breach or contravention of, or the creation of any Lien under, any document
evidencing any Contractual Obligation to which any Borrower is a party or any
order, injunction, writ or decree of any Governmental Authority to which any
Borrower is a party or its property is subject, or (iii) violate any Requirement
of Law.
(b) Governmental Authorization. No approval, consent, exemption,
authorization or other action by, or notice to, or filing with or approvals
required under state blue sky securities laws or by any Governmental Authority
is necessary or required in connection with the execution, delivery, performance
or enforcement of this Amendment.
(c) No Default. Other than the Cross-Defaults, no Default or Event of
Default exists under any of the Loan Documents on the date hereof and, on the
Amendment Effective Date, no Default or Event of Default will exist or is
reasonably expected to occur under any of the Loan Documents. No Borrower is in
default under or with respect to (i) its Charter Documents or (ii) any material
Contractual Obligation of such Person. The execution, delivery and performance
of this Amendment shall not result in any default under any Contractual
Obligation of any Borrower in any respect.
(d) Binding Effect. This Amendment and the Credit Agreement as amended
hereby constitute the legal, valid and binding obligations of the Credit Parties
that are parties thereto, enforceable against such Credit Parties in accordance
with their respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles of general applicability.
(e) Representations and Warranties. The representations and warranties
set forth in the Credit Agreement and the other Loan Documents are true and
correct in all material respects on and as of the Amendment Effective Date, both
before and after giving effect to the amendments contemplated in this Amendment,
as if such representations and warranties were being made on and as of the
Amendment Effective Date.
Section 6. MISCELLANEOUS
(a) Ratification of Loan Documents. Except for the specific consents,
waivers and amendments expressly set forth in this Amendment, the terms,
provisions, conditions and covenants of the Credit Agreement and the other Loan
Documents remain in full force and effect and are hereby ratified and confirmed,
and the execution, delivery and performance of this Amendment shall not in any
manner operate as a waiver of, consent to or amendment of any other term,
provision, condition or covenant of the Credit Agreement or any other Loan
Document. Without limiting the generality of the foregoing, the consents set
forth in Section 2 of this Amendment and the waivers set forth in Section 3 of
this Amendment shall be limited precisely as set forth above, and nothing in
this Amendment shall be deemed (i) to constitute a waiver of compliance or
consent to noncompliance by any of the Credit Parties with respect to any other
term provision, condition or covenant of the Credit Agreement or other Loan
Documents; (ii) to prejudice any right or remedy that the Administrative Agent
or the Banks may now have or may have in the future under or in connection with
the Credit Agreement or any other Loan Document; or (iii) to constitute a waiver
of compliance or consent to noncompliance
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by any of the Credit Parties with respect to the terms, provisions, conditions
and covenants of the Credit Agreement made the subject hereof, other than as
specifically set forth herein.
(b) Fees and Expenses. The Borrowers jointly and severally agree to pay
on demand all reasonable costs and expenses of the Administrative Agent in
connection with the preparation, reproduction, execution, and delivery of this
Amendment, the Nexstar Amendment and any other documents prepared in connection
herewith or therewith, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent.
(c) Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
(d) APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
(e) Counterparts and Amendment Effective Date. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective when (i) each of the conditions precedent set forth in Section 4 of
this Amendment have been satisfied, and (ii) the Administrative Agent has
received counterparts of this Amendment executed by the Borrowers, each of the
Guarantors, Xxxxx X. Xxxxx and Banks constituting Majority Banks (the "Amendment
Effective Date"), whether or not this Amendment has been executed and delivered
by each and every Bank named on the signature pages hereto.
(f) Affirmation of Guarantees. Notwithstanding that such consent is not
required thereunder, the undersigned Guarantors hereby consent to the execution
and delivery of this Amendment and Nexstar Amendment and the consummation of the
transactions contemplated hereby and thereby and reaffirm their respective
obligations under each of their respective Guaranty Agreements, which Guaranty
Agreements shall continue in full force and effect notwithstanding the
consummation of such transactions.
(g) Confirmation of Loan Documents and Liens. As a material inducement
to the Banks to agree to grant the consents and waivers set forth herein, to
amend the Credit Agreement as set forth herein and to enter into the Nexstar
Amendment, the Borrowers, the Guarantors and Xxxxx X. Xxxxx hereby (i)
acknowledge and confirm the continuing existence, validity and effectiveness of
the Loan Documents to which they are parties, including, without limitation the
Security Documents and the Liens granted under the Security Documents, (ii)
agrees that the execution, delivery and performance of this Amendment and the
Nexstar Amendment, and the transactions contemplated hereby and thereby, shall
not in any way release, diminish, impair,
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reduce or otherwise adversely affect such Loan Documents and Liens and (iii)
acknowledges and agrees that the Liens granted under the Security Documents
secure, and after the consummation of the transactions contemplated hereby and
by the Nexstar Amendment will continue to secure, payment of the Obligations
under the Loan Documents in the same priority as on the date such Liens were
created and perfected, and the performance and observance by the Borrowers and
the other Credit Parties of the covenants, agreements and conditions to be
performed and observed by each under the Credit Agreement, as amended hereby,
and Nexstar Credit Agreement, as amended by the Nexstar Amendment.
(h) FINAL AGREEMENT. THIS AMENDMENT, TOGETHER WITH THE CREDIT AGREEMENT
AND OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers
effective as of the Amendment Effective Date.
BORROWERS:
BASTET BROADCASTING, INC.
By:/s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
MISSION BROADCASTING OF
WICHITA FALLS, INC.
By:/s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
MISSION BROADCASTING OF
JOPLIN, INC.
By:/s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
[Signature Page to Fourth Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
GUARANTORS (for purposes of Section 6(f) and Section 6(g) hereof):
NEXSTAR BROADCASTING GROUP, L.L.C.
NEXSTAR FINANCE, L.L.C.
NEXSTAR BROADCASTING OF NORTHEASTERN PENNSYLVANIA, INC.
NEXSTAR BROADCASTING OF JOPLIN, INC.
NEXSTAR BROADCASTING OF ERIE, INC.
KBTV BROADCASTING INC. (F/K/A NEXSTAR BROADCASTING OF BEAUMONT/PORT
XXXXXX, INC.)
KFDX BROADCASTING INC. (F/K/A NEXSTAR BROADCASTING OF WICHITA FALLS, INC.)
NEXSTAR BROADCASTING OF ROCHESTER, INC.
KTAB BROADCASTING INC. (F/K/A NEXSTAR BROADCASTING OF ABILENE, INC.)
ERC HOLDINGS, INC.
NEXSTAR MIDWEST HOLDINGS, INC.
NEXSTAR BROADCASTING OF CHAMPAIGN, INC.
NEXSTAR BROADCASTING OF PEORIA, INC.
KMID BROADCASTING INC. (F/K/A NEXSTAR BROADCASTING OF MIDLAND-ODESSA, INC.)
KTAL BROADCASTING INC. (F/K/A NEXSTAR BROADCASTING OF LOUISIANA, INC.)
NEXSTAR FINANCE HOLDINGS, L.L.C.
NEXSTAR FINANCE HOLDINGS II, L.L.C.
NEXSTAR FINANCE HOLDINGS, INC.
NEXSTAR BROADCASTING OF ABILENE, L.L.C.
NEXSTAR BROADCASTING OF BEAUMONT/ PORT XXXXXX, L.L.C.
NEXSTAR BROADCASTING OF CHAMPAIGN, L.L.C.
ENTERTAINMENT REALTY CORPORATION
NEXSTAR BROADCASTING OF ERIE, L.L.C.
NEXSTAR BROADCASTING OF JOPLIN, L.L.C.
NEXSTAR BROADCASTING OF LOUISIANA, L.L.C.
NEXSTAR BROADCASTING OF MIDLAND-ODESSA, L.L.C.
NEXSTAR BROADCASTING OF THE MIDWEST, INC.
NEXSTAR BROADCASTING OF NORTHEASTERN PENNSYLVANIA, L.L.C.
NEXSTAR FINANCE, INC.
NEXSTAR BROADCASTING OF PEORIA, L.L.C.
NEXSTAR BROADCASTING OF ROCHESTER, L.L.C.
NEXSTAR BROADCASTING OF WICHITA FALLS, L.L.C.
By:/s/ Xxxxxxx Xxxxx
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Title: Secretary of each of the
above-named entities
[Signature Page to Fourth Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
XXXXX X. XXXXX (for purposes of Section 6(g) hereof):
/s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX
[Signature Page to Fourth Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
WACHOVIA BANK, NATIONAL ASSOCIATION (SUCCESSOR
BY MERGER TO FIRST UNION NATIONAL BANK)
By: /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
[Signature Page to Fourth Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
CIBC INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Director
CIBC World Markets Corp. As Agent
[Signature Page to Fourth Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
ADMINISTRATIVE AGENT AND BANKS:
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Principal
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Principal
[Signature Page to Fourth Amendment to Credit Agreement, Limited Consent
and Limited Waiver]
U.S. BANK NATIONAL ASSOCIATION (SUCCESSOR BY
MERGER TO FIRSTAR BANK, N.A.)
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
