EXHIBIT 10.80
LIMITED CONSENT AND LIMITED WAIVER TO CREDIT AGREEMENT
THIS LIMITED CONSENT AND LIMITED WAIVER TO CREDIT AGREEMENT (this
"Consent and Waiver"), dated as of September 5, 2003, is among MISSION
BROADCASTING, INC., a Delaware corporation (the "Borrower"), the several Banks
(as such term is defined in the hereinafter described Credit Agreement) parties
to this Consent and Waiver, and BANK OF AMERICA, N.A., as Administrative Agent
for the Banks (in such capacity, the "Administrative Agent").
R E C I T A L S:
A. The Borrower, the Administrative Agent, Bear Xxxxxxx Corporate
Lending Inc., as the Syndication Agent, and Royal Bank of Canada, General
Electric Capital Corporation and Xxxxxxx Xxxxx Capital, a division of Xxxxxxx
Xxxxx Business Financial Services Inc., as the Co-Documentation Agents, and the
several Banks parties thereto entered into that certain Amended and Restated
Credit Agreement dated as of February 13, 2003 (the "Credit Agreement").
Capitalized terms used and not otherwise defined herein shall have the meanings
ascribed to them in the Credit Agreement.
B. The Borrower has advised the Administrative Agent that it wishes
to enter into a Merger Agreement that complies with the requirements set forth
in Section 1(a)(i) below (the "Merger Agreement") among the Borrower, Mission
Broadcasting of Amarillo, Inc., Kenos Broadcasting, Inc. and Kenos Broadcasting
II, Inc., whereby Mission Broadcasting of Amarillo, Inc., Kenos Broadcasting,
Inc. and Kenos Broadcasting II, Inc. will be merged with and into the Borrower,
with the Borrower being the surviving entity.
C. The Borrower has requested that (i) the Banks consent to the
execution and delivery of the Merger Agreement, and (ii) waive any Default or
Event of Default resulting from the execution and delivery of the Merger
Agreement, in each case as more fully set forth herein.
D. The several Banks parties to this Consent and Waiver (which
Banks constitute the Majority Banks and the Majority Revolver Banks as required
under the Credit Agreement to grant the consents and waivers intended hereby)
are willing to grant the above-described consents and waivers, subject in each
case to the performance and observance in full of each of the covenants, terms
and conditions, and in reliance upon all of the representations and warranties
of the Borrower 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. LIMITED CONSENTS AND LIMITED WAIVERS. Subject to the
covenants, terms and conditions set forth in this Consent and Waiver, and in
reliance upon the
representations and warranties of the Borrower herein contained, the several
Banks parties to this Consent and Waiver hereby:
(a) (i) consent to the execution and delivery of the Merger
Agreement, provided that
(A) such consent shall not extend to the
consummation of such merger,
(B) consummation of such merger must either fully
comply with all provisions of the Credit Agreement, including,
without limitation, Section 8.04(b) of the Credit Agreement, or
the Borrower must obtain a consent or an amendment to the Credit
Agreement in accordance with the terms of such Credit Agreement,
(C) any failure to consummate such merger by the
Borrower shall not cause any payment penalty or other adverse
consequence to the Borrower or any of it Subsidiaries, and
(D) any breach, default or other non-compliance by
the Borrower of any term or provision of the Merger Agreement
shall not cause any payment penalty or other adverse consequence
to the Borrower or any of it Subsidiaries (other than
termination of the Merger Agreement by another party thereto),
and
(ii) waive compliance with the provisions of Section 8.06 of
the Credit Agreement which prohibit the execution and delivery
of the Merger Agreement; and
(b) consent to the execution, delivery and performance by the
parties thereto of the Consent and Waiver dated as of even date herewith
relative to the Nexstar Credit Agreement, and all transactions described
therein.
The consents and waivers set forth in this Section 1 are limited to the extent
specifically set forth above and no terms, covenants or provisions of the Credit
Agreement or any other Loan Document are intended to be affected hereby except
to the extent specifically waived in connection with the limited consents
granted above. The Borrower hereby specifically represents and warrants that,
the Merger Agreement does not, nor does any agreement, document or instrument
related in any manner to the Merger Agreement (the "Merger Documents") contain
any term or provision that would violate any term or condition of the proviso
set forth above.
SECTION 2. CONDITIONS PRECEDENT. The parties hereto agree that this
Consent and Waiver and the consents and waivers 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 Consent and Waiver. The
Administrative Agent shall have received a copy of this Consent and Waiver
executed and delivered by each of the applicable Credit Parties and by Banks
constituting Majority Banks and the Majority Revolver Banks and each of the
conditions set forth in Sections 2(b) and 2(c) below shall have been satisfied.
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(b) Representations and Warranties. Each of the representations and
warranties made in this Consent and Waiver shall be true and correct on and as
of the Consent and Waiver Effective Date as if made on and as of such date, both
before and after giving effect to this Consent and Waiver.
(c) Effectiveness of Nexstar Consent and Waiver. All conditions
precedent to the effectiveness of the Nexstar Consent and Waiver shall have been
satisfied in a manner reasonably satisfactory to the Administrative Agent of
such credit facility.
SECTION 3. REPRESENTATIONS AND WARRANTIES. To induce the Administrative
Agent and the several Banks parties hereto to enter into this Consent and Waiver
and to grant the consents and waivers contained herein and in the Nexstar
Consent and Waiver, the Borrower represents and warrants to the Administrative
Agent and the Banks as follows:
(a) Authorization; No Contravention. The execution, delivery and
performance by the applicable Credit Parties of this Consent and Waiver have
been duly authorized by all necessary partnership, corporate or limited
liability company action, as applicable, and do not and will not (i) contravene
the terms of any Charter Documents of any Credit Party, (ii) conflict with or
result in any breach or contravention of, or the creation of any Lien under, any
document evidencing any Contractual Obligation to which any Credit Party is a
party or any order, injunction, writ or decree of any Governmental Authority to
which any Credit Party is a party or its property is subject, or (iii) violate
any Requirement of Law.
(b) Governmental Authorization. No approval, consent, exemption,
authorization or other action by, or notice to, or filing with or approvals
required under state blue sky securities laws or by any Governmental Authority
is necessary or required in connection with the execution, delivery, performance
or enforcement of this Consent and Waiver.
(c) No Default. No Default or Event of Default exists under any of
the Loan Documents. No Credit Party is in default under or with respect to (i)
its Charter Documents or (ii) any material Contractual Obligation of such
Person. The execution, delivery and performance of this Consent and Waiver shall
not result in any default under any Contractual Obligation of any Credit Party
in any respect.
(d) Binding Effect. This Consent and Waiver constitutes the legal,
valid and binding obligation 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 Consent and Waiver
Effective Date, both before and after giving effect to the consents and waivers
contemplated in this Consent and Waiver, as if such representations and
warranties were being made on and as of the Consent and Waiver Effective Date.
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SECTION 4. MISCELLANEOUS.
(a) Ratification of Loan Documents. Except for the specific consents
and waivers expressly set forth in this Consent and Waiver, 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 Consent and Waiver 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 and
waivers set forth in Section 1 of this Consent and Waiver and shall be limited
precisely as set forth above, and nothing in this Consent and Waiver shall be
deemed (i) to constitute a waiver of compliance or consent to noncompliance by
any of the Credit Parties with respect to any other term provision, condition or
covenant of the Credit Agreement or other Loan Documents; (ii) to prejudice any
right or remedy that the Administrative Agent or the Banks may now have or may
have in the future under or in connection with the Credit Agreement or any other
Loan Document; or (iii) to constitute a waiver of compliance or consent to
noncompliance by any of the Credit Parties with respect to the terms,
provisions, conditions and covenants of the Credit Agreement made the subject
hereof, other than as specifically set forth herein and for the time periods
specifically set forth herein.
(b) Fees and Expenses. The Borrower agrees to pay on demand all
reasonable costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution, and delivery of this Consent and Waiver,
the Nexstar Consent and Waiver 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 Consent and
Waiver are included herein for convenience of reference only and shall not
constitute a part of this Consent and Waiver for any other purpose or be given
any substantive effect.
(d) APPLICABLE LAW. THIS CONSENT AND WAIVER 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 Consent and Waiver Effective Date. This Consent
and Waiver 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 Consent and
Waiver shall become effective when the Administrative Agent has received
counterparts of this Consent and Waiver executed by the Borrower, and each of
the Guarantors and the Banks constituting Majority Banks and the Majority
Revolver Banks and each of the conditions precedent set forth in Sections 2(b)
and 2(c) above has been satisfied (the "Consent and Waiver Effective Date"),
whether or not this Consent and Waiver has been executed and delivered by each
and every Bank named on a signature pages attached hereto.
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(f) Affirmation of Guarantees. Notwithstanding that such consent is
not required thereunder, each of the Guarantors hereby consent to the execution
and delivery of this Consent and Waiver and the Nexstar Consent and Waiver and
the consummation of the transaction 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 proposed transaction.
(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 and to enter into the Nexstar Consent and Waiver, the Borrower and the
Guarantors 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 Consent and Waiver and the Nexstar Consent and Waiver, and the consummation
of the transactions contemplated hereby and thereby shall not in any way
release, diminish, impair, reduce or otherwise adversely affect such Loan
Documents and Liens and (iii) acknowledges and agrees that the Liens granted
under the Security Documents secure, and after the consummation of the
transactions contemplated hereby and by the Nexstar Consent and Waiver will
continue to secure, the payment of the Obligations under the Loan Documents in
the same priority as on the date such Liens were created and perfected, and the
performance and observance by the Borrower and the other Credit Parties of the
covenants, agreements and conditions to be performed and observed by each under
the Credit Agreement and the Nexstar Credit Agreement.
(h) FINAL AGREEMENT. THIS CONSENT AND WAIVER, 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 Consent and
Waiver to be duly executed and delivered by their proper and duly authorized
officers effective as of the Consent and Waiver Effective Date.
BORROWER:
MISSION BROADCASTING, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: President
Signature Page to Consent and Waiver
GUARANTORS (for purposes of Sections 4(f) and 4(g) hereof):
NEXSTAR FINANCE, L.L.C.
NEXSTAR BROADCASTING GROUP, L.L.C.
NEXSTAR BROADCASTING OF NORTHEASTERN PENNSYLVANIA, INC.
NEXSTAR BROADCASTING OF JOPLIN, INC.
NEXSTAR BROADCASTING OF ERIE, INC.
KBTV BROADCASTING INC.
KFDX BROADCASTING INC.
NEXSTAR BROADCASTING OF ROCHESTER, INC.
KTAB BROADCASTING INC.
ERC HOLDINGS, INC.
NEXSTAR MIDWEST HOLDINGS, INC.
NEXSTAR BROADCASTING OF CHAMPAIGN, INC.
NEXSTAR BROADCASTING OF PEORIA, INC.
KMID BROADCASTING INC.
KTAL BROADCASTING INC.
NEXSTAR FINANCE HOLDINGS II, L.L.C.
NEXSTAR FINANCE HOLDINGS, L.L.C.
NEXSTAR FINANCE HOLDINGS, INC.
NEXSTAR ALABAMA HOLDINGS, INC.
NEXSTAR ARKANSAS 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.
NEXSTAR MANAGEMENT, INC.
NEXSTAR ALAMABA ACQUISITION, INC.
NEXSTAR ARKANSAS ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxx
-----------------------------
Title: President and CEO
-----------------------------
of each of the above-named entities
Signature Page to Consent and Waiver
ADMINISTRATIVE AGENT, SYNDICATION
AGENT, ISSUING BANK AND BANKS:
BANK OF AMERICA, N.A.,
as Administrative Agent, as Issuing
Bank and as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: XXXXXX X. XXXXXXX
Title: PRINCIPAL
Signature Page to Consent and Waiver
BEAR XXXXXXX CORPORATE LENDING INC.
as Syndication Agent and as a Bank
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: EVP
Signature Page to Consent and Waiver
ROYAL BANK OF CANADA, as a Bank and as
as a Co-Documentation Agent
By: /s/ Xxxx Xxxxxxxx
-----------------------------
Name: XXXX XXXXXXXX
Title: ATTORNEY IN FACT
Signature Page to Consent and Waiver
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Bank and as a
Co-Documentation Agent
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: XXXX XXXXXXX
Title: DULY AUTHORIZED SIGNATORY
Signature Page to Consent and Waiver
XXXXXXX XXXXX CAPITAL, a division of
Xxxxxxx Xxxxx Business
Financial Services, Inc., as a
Bank and as a Co-Documentation Agent
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Signature Page to Consent and Waiver
NEW ALLIANCE GLOBAL CDO, LIMITED
By: Alliance Capital Management L.P.,
as Sub-advisor
Alliance Capital Management
Corporation, as General Partner
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
Signature Page to Consent and Waiver
SIERRA CLO I, LTD
By: /s/ Xxxx X. Caspartan
-----------------------------
Name: XXXX X. CASPARTAN
Title: Chief Operating Officer
Centre Pacific LLP (Manager)
Signature Page to Consent and Waiver
JUPITER LOAN FUNDING LLC
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: XXXXX X. XXXXX
Title: ASSISTANT VICE PRESIDENT
Signature Page to Consent and Waiver
NYLIM FLATIRON CLO 2003-1 LTD.
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------
Name: XXXX X. XXXXXXXXXX
Title:
Signature Page to Consent and Waiver
ELC (CAYMAN) LTD. 2000-I
By: Xxxxx X. Xxxxxx & Company Inc.
as Collateral Manager
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------
Name: XXXXXXXX XXXXXXX
Title: Managing Director
Signature Page to Consent and Waiver
ELC (CAYMAN) LTD. 1999-III
By: Xxxxx X. Xxxxxx & Company Inc.
as Collateral Manager
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------
Name: XXXXXXXX XXXXXXX
Title: Managing Director
Signature Page to Consent and Waiver
XXXXX CLO LTD. 2000-I
By: Xxxxx X. Xxxxxx & Company Inc.
as Collateral Manager
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------
Name: XXXXXXXX XXXXXXX
Title: Managing Director
Signature Page to Consent and Waiver
FLAGSHIP CLO II
By: Flagship Capital Management, Inc.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: XXXX X. XXXXX
Title: DIRECTOR
Signature Page to Consent and Waiver
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxx Xxxxxx Xxxxxx
--------------------------------------
Name: XXXX XXXXXX XXXXXX
Title: MANAGING DIRECTOR
Signature Page to Consent and Waiver
ENDURANCE CLO I, LTD.
By: /s/ Xxxx Xxxxxx Xxxxxx
--------------------------------------
Name: XXXX XXXXXX XXXXXX
Title: MANAGING DIRECTOR
Signature Page to Consent and Waiver
NEMEAN CLO, LTD.
By: ING Capital Advisors LLC,
as Investment Manager
By: /s/ Xxxx Xxxxxx Xxxxxx
--------------------------------------
Name: XXXX XXXXXX XXXXXX
Title: MANAGING DIRECTOR
Signature Page to Consent and Waiver
SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxx Xxxxxx Xxxxxx
--------------------------------------
Name: XXXX XXXXXX XXXXXX
Title: MANAGING DIRECTOR
Signature Page to Consent and Waiver
NEW YORK LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxxxxx
--------------------------------------
Name: XXXX X. XXXXXXXXXX
Title:
Signature Page to Consent and Waiver
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By: New York Life Investment Management,
LLC its Investment Manager
By: /s/ Xxxx X. Xxxxxxxxxx
--------------------------------------
Name: XXXX X. XXXXXXXXXX
Title:
Signature Page to Consent and Waiver
SEQUILS-GLACE BAY, LTD.
By: Royal Bank of Canada as Collateral
Manager
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: XXXXXXX XXXXXX
Title: Authorized Signatory
Signature Page to Consent and Waiver
Sankaty Advisors, LLC as Collateral
Manager for Castle Hill II - INGOTS,
Ltd., as Term Lender
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: XXXXX X. XXXXX
Title: MANAGING DIRECTOR
PORTFOLIO MANAGER
Signature Page to Consent and Waiver
Sankaty Advisors, LLC as Collateral
Manager for Castle Hill I - INGOTS, Ltd.,
as Term Lender
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: XXXXX X. XXXXX
Title: MANAGING DIRECTOR
PORTFOLIO MANAGER
Signature Page to Consent and Waiver
HARBOUR TOWN FUNDING LLC
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: XXXXX X. XXXXX
Title: ASSISTANT VICE PRESIDENT
Signature Page to Consent and Waiver
Sankaty Advisors, LLC as Collateral
Manager for Race Point II CLO,
Limited, as Term Lender
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: XXXXX X. XXXXX
Title: MANAGING DIRECTOR
PORTFOLIO MANAGER
Signature Page to Consent and Waiver
Sankaty Advisors, LLC as Collateral
Manager for Race Point CLO, Limited,
as Term Lender
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: XXXXX X. XXXXX
Title: MANAGING DIRECTOR
PORTFOLIO MANAGER
Signature Page to Consent and Waiver
XXX XXXXXX SENIOR LOAN FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxxxxx Xxxxxxxx
--------------------------------------
Name: XXXXXXXXX XXXXXXXX
Title: VICE PRESIDENT
Signature Page to Consent and Waiver
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: XXXXX XXXXXXX
Title: VICE PRESIDENT
Signature Page to Consent and Waiver
APEX (IDM) CDO I, LTD.
By: Xxxxx X. Xxxxxx & Company Inc.
as Collateral Manager
By: /s/ Xxxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Managing Director
Signature Page to Consent and Waiver
