1997 TERM CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK CORPORATION,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
THE SUMITOMO BANK, LIMITED,
MERCANTILE BANK OF ST. LOUIS, N.A.,
FIRST BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL
and
LASALLE NATIONAL BANK
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TABLE OF CONTENTS
I. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II. TERM FACILITY. . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.1 Term Credit . . . . . . . . . . . . . . . . . . . . . . 12
2.2 Acquisition Term Notes. . . . . . . . . . . . . . . . . 12
2.3 Payments. . . . . . . . . . . . . . . . . . . . . . . . 13
2.4 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.5 Payment . . . . . . . . . . . . . . . . . . . . . . . . 13
2.6 Prepayment. . . . . . . . . . . . . . . . . . . . . . . 13
2.6A Permitted Prepayments to Broadcast Partners . . . . . . 14
2.7 Security . . . . . . . . . . . . . . . . . . . . . . . 14
2.8 Related Loan Agreements . . . . . . . . . . . . . . . . 14
III. [INTENTIONALLY OMITTED]. . . . . . . . . . . . . . . . . . . . . 14
IV. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . 14
4.1 Corporate Existence. . . . . . . . . . . . . . . . . . . . 14
4.2 Corporate Authority. . . . . . . . . . . . . . . . . . . . 14
4.3 Validity of Agreements. . . . . . . . . . . . . . . . . . . 15
4.4 Litigation . . . . . . . . . . . . . . . . . . . . . . . . 15
4.5 Governmental Approvals. . . . . . . . . . . . . . . . . . . 15
4.6 Defaults Under Other Documents. . . . . . . . . . . . . . . 15
4.7 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.8 Compliance with Laws . . . . . . . . . . . . . . . . . . . 15
4.9 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.10 Collateral . . . . . . . . . . . . . . . . . . . . . . . . 16
4.11 Pension Benefits. . . . . . . . . . . . . . . . . . . . . . 16
4.12 Margin Regulations . . . . . . . . . . . . . . . . . . . . 16
4.13 Financial Condition . . . . . . . . . . . . . . . . . . . . 16
V. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.1 Financial Reports . . . . . . . . . . . . . . . . . . . . . 17
5.2 Corporate Structure and Assets. . . . . . . . . . . . . . . 18
5.3 Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.4 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . 19
5.5 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . 19
5.6 Notice of Default . . . . . . . . . . . . . . . . . . . . 19
5.7 Distributions . . . . . . . . . . . . . . . . . . . . . . .20
5.8 Compliance with Law and Regulations. . . . . . . . . . . . .20
5.9 Maintenance of Property; Accounting;
Corporate Form; Taxes; Insurance. . . . . . . . . . . .20
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5.10 Inspection of Properties and Books . . . . . . . . . . . . 21
5.11 Guaranties. . . . . . . . . . . . . . . . . . . . . . . . . 21
5.12 Collateral. . . . . . . . . . . . . . . . . . . . . . . . . 21
5.13 Name; Location . . . . . . . . . . . . . . . . . . . . . . 22
5.14 Notice of Change in Ownership or Management . . . . . . . . 22
5.15 Interest Coverage . . . . . . . . . . . . . . . . . . . . . 22
5.16 Subordinated Debt . . . . . . . . . . . . . . . . . . . . . 22
5.17 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 23
5.18 Amendments to Purchase Agreement. . . . . . . . . . . . . . 23
5.19 Capital Expenditures. . . . . . . . . . . . . . . . . . . . 23
5.20 Acquisitions. . . . . . . . . . . . . . . . . . . . . . . . 23
VI. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . 23
6.1 Closing Conditions . . . . . . . . . . . . . . . . . . . . 23
VII. DEFAULTS AND REMEDIES. . . . . . . . . . . . . . . . . . . . . . 24
7.1 Events of Default . . . . . . . . . . . . . . . . . . . . . 24
7.2 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . 26
VIII. INTER-CREDITOR AGREEMENTS. . . . . . . . . . . . . . . . . . . . 28
8.1 FNB-O as Servicer . . . . . . . . . . . . . . . . . . . . . 28
8.2 Application of Payments . . . . . . . . . . . . . . . . . 28
8.3 Liability of FNB-O. . . . . . . . . . . . . . . . . . . . . 29
8.4 Transfers . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.5 Reliance. . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.6 Relationship of Lenders . . . . . . . . . . . . . . . . . . 30
8.7 New Lenders . . . . . . . . . . . . . . . . . . . . . . . . 30
8.8 Broadcast Partners . . . . . . . . . . . . . . . . . . . . 30
IX. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.1 Entire Agreement . . . . . . . . . . . . . . . . . . . . . 31
9.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 31
9.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 31
9.4 Headings . . . . . . . . . . . . . . . . . . . . . . . . . 31
9.5 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 31
9.6 Survival; Successors and Assigns . . . . . . . . . . . . . 31
9.7 Severability . . . . . . . . . . . . . . . . . . . . . . . 31
9.8 Assignment . . . . . . . . . . . . . . . . . . . . . . . . 31
9.9 Amendments . . . . . . . . . . . . . . . . . . . . . . . . 31
Exhibit A: Form of Notes
Exhibit B: Officer's Certificate
Schedule A: Permitted Encumbrances
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1997 TERM CREDIT AGREEMENT
This 1997 Term Credit Agreement (the "Agreement"), entered into as of
the 26th day of February, 1997, amends and restates the 1996 Term Credit
Agreement entered into as of the 3rd day of May, 1996, among DATA TRANSMISSION
NETWORK CORPORATION, a Delaware corporation having its principal place of
business at Suite 200, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Borrower"), FIRST NATIONAL BANK OF OMAHA, a national banking association having
its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("FNB-O"), FIRST NATIONAL BANK, WAHOO, NEBRASKA, a national banking
association having its principal place of business at ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("FNB-W"), NBD BANK, a bank organized under the laws of the State of Michigan
and having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("NBD"), NORWEST BANK NEBRASKA, N.A., a national banking
association having its principal place of business at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Norwest"), THE SUMITOMO BANK, LIMITED, a Japanese bank
being represented by its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and acting through its Chicago branch ("Sumitomo"), MERCANTILE
BANK OF ST. LOUIS, N.A., a national banking association having its principal
place of business at One Mercantile Center, 7th and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Mercantile"), FIRST BANK, NATIONAL ASSOCIATION
(successor in interest to FirsTier Bank, National Association), a national
banking association having its principal place of business at ▇▇▇▇ ▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("First Bank"), BANK OF MONTREAL, a Canadian
Bank being represented by its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("Montreal"), and LASALLE NATIONAL BANK, a national banking association
being represented by its office at One Metropolitan Square, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("LaSalle"); as amended by the First Amendment to 1996
Term Credit Agreement dated as of July 17, 1996, the Second Amendment to 1996
Term Credit Agreement dated as of July 31, 1996, and the Third Amendment to 1996
Term Credit Agreement dated as of December 27, 1996.
WITNESSETH:
WHEREAS, the parties have entered into that certain 1996 Term Credit
Agreement, dated as of May 3, 1996, as amended by the First Amendment to 1996
Term Credit Agreement dated as of July 17, 1996, the Second Amendment to 1996
Term Credit Agreement dated as of July 31, 1996 and the Third Amendment to 1996
Term Credit Agreement dated as of December 27, 1996 (as so amended and restated,
the "1996 Term Credit Agreement"), pursuant to which the Borrower obtained a
term credit facility for the purpose of acquiring substantially all of the
assets of Broadcast Partners; and
WHEREAS, the parties desire to further amend and restate the 1996 Term
Credit Agreement; and
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WHEREAS, the parties do not intend for this 1997 Term Credit Agreement
to be deemed to extinguish any existing indebtedness of the Borrower or to
release, terminate or affect the priority of any security therefor;
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, it is agreed as follows:
I. DEFINITIONS
For purposes of this Agreement, the following definitions shall apply:
Agreement: The 1996 Term Credit Agreement dated as of May 3,
1996, between the Borrower and the Lenders, as
amended by the First Amendment to 1996 Term Credit
Agreement, dated as of July 17, 1996; the Second
Amendment to 1996 Term Credit Agreement, dated as of
July 31, 1996; and the Third Amendment to 1996 Term
Credit Agreement, dated as of December 27, 1996, as
further amended and restated by this 1997 Term Credit
Agreement dated as of February 26, 1997, between the
Borrower and the Lenders, and as further amended or
restated from time to time. Reference in the Notes to
the Agreement shall mean the Agreement as defined
herein.
Banks: FNB-O, FNB-W, First Bank, Mercantile, NBD, Norwest,
Sumitomo, LaSalle and Montreal, and such additional
banks as may be added hereto from time to time by
mutual written agreement of the parties.
Boatmen's: The Boatmen's National Bank of St. Louis, a
national banking association having its principal
place of business at ▇▇▇ ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and its
successors and assigns.
Borrower: Data Transmission Network Corporation, a Delaware
corporation having its principal place of business at
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
Broadcast
Partners: Broadcast Partners, a general partnership having
its current principal place of business at ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇. For purposes
of future notices or communications under this
Agreement Broadcast Partners address shall be:
Broadcast Partners, care of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Pioneer Hi-Bred International, Inc., ▇▇▇▇ ▇.▇. ▇▇▇▇
▇▇▇., ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
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Business
Day: Any day other than a Saturday, Sunday or a legal
holiday on which banks in the State of Nebraska are
not open for business.
Change of
Control: (a) At any time when any of the equity
securities of the Borrower shall be registered under
Section 12 of the Securities Exchange Act of 1934 as
amended from time to time (the "Exchange Act"), (i)
any person, entity or "group" (within the meaning of
Section 13(d)(3) of the Exchange Act) (other than any
person which is a management employee, or any such
"group" which consists entirely of management
employees, of the Borrower) being or becoming the
beneficial owner, directly or indirectly, of more
than 50% of the voting stock of the Borrower, or (ii)
a majority of the members of the Borrower's board of
directors (the "Board") consisting of persons other
than Continuing Directors (as hereinafter defined);
and (b) at any other time, less than 50% of the
voting stock of the Borrower being owned
beneficially, directly or indirectly, by employees of
the Borrower or its subsidiaries. As used herein, the
term "Continuing Director" means any member of the
Board on June 29, 1995 and any other member of the
Board who shall be recommended or elected to succeed
a Continuing Director by a majority of Continuing
Directors who are the members of the Board.
Collateral: All personal property of the Borrower described in
the Security Agreement, whether now owned or
hereafter acquired, including, without limitation:
(a) all of the Borrower's accounts, accounts
receivable, subscriber contract rights, chattel
paper, documents, instruments, goods, inventory,
equipment, general intangibles; and
(b) all proceeds and products of the
foregoing.
Existing
Term Notes: Those certain promissory notes from the Borrower
to FNB-O, FirsTier, FNB-W, NBD, Norwest and Boatmen's
dated as of April 16, 1993, July 8, 1993, August 30,
1994, November 29, 1994, and February 27, 1995.
FirsTier: FirsTier Bank, National Association, Lincoln,
Nebraska, a national banking association having its
principal place of business at 13th and ▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and its successors and
assigns (it being acknowledged that First Bank is the
successor in interest to FirsTier).
First Bank: First Bank, National Association, a national
banking association having its principal place of
business at 13th and M Streets, Lincoln, Nebraska
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68508, and its successors and assigns (it being
acknowledged that First Bank is the successor in
interest to FirsTier).
FNB-O: First National Bank of Omaha, a national banking
association having its principal place of business at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
its successors and assigns.
FNB-W: First National Bank, Wahoo, Nebraska, a national
banking association having its principal place of
business at ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and its successors
and assigns.
Interest Rate
Protection Contract
Amounts: "Interest Rate Protection Contract Amounts" shall
mean amounts due from the Borrower under interest
rate protection contracts between the Borrower and
Lender as to (i) the interest differential amounts
due in respect of periodic netting payments under any
such contract, and (ii) any amount due as a result of
marking to market the Borrower's obligations under
any such contract upon the occurrence of an event of
default under, or other early termination of, such
contract; in either case without inclusion of fees
and other expenses related to such contract. Such
Interest Rate Protection Contract Amounts shall be
reported in writing to FNB-O and the Borrower by the
applicable Lender at such times as shall be
appropriate to carry out the intent of this
Agreement.
LaSalle: LaSalle National Bank, a national banking association
having its principal place of business at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Lenders: The Banks.
Leverage Ratio: The number which is obtained at the time of
determination by dividing Total Indebtedness at the
applicable time by Operating Cash Flow at the
applicable time.
Make-Whole
Premium: An amount which shall be sufficient as determined by
the relevant Bank in good faith and on a reasonable
basis and certified to the Borrower in writing, to
compensate the Bank for any loss (including any lost
yield), cost or expense incurred by the Bank (i) in
liquidating or redeploying deposits or other funds
acquired by the Bank to fund or maintain the loan
prepaid and (ii) in unwinding, amending, cancelling
or otherwise modifying or terminating any match
funding, swap or other arrangement entered into by
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the Bank in connection with acquiring or maintaining
the funding for the loan prepaid.
Mercantile: Mercantile Bank of St. Louis, N.A., a national
banking association having its principal place of
business at One Mercantile Center, 7th and ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Montreal: Bank of Montreal, a Canadian bank being represented
by its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇.
NBD: NBD Bank, a bank organized under the laws of the
State of Michigan and having its principal place of
business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
Net Operating
Profit After Taxes: For any period, the net earnings (or loss) after
taxes of Borrower and its Subsidiaries on a
consolidated basis for such period taken as a single
accounting period and determined in conformity with
generally accepted accounting principals; provided
that there shall be excluded (i) the income (or loss)
of any entity accrued prior to the date it becomes a
Subsidiary of Borrower or is merged into or
consolidated with Borrower and (ii) any extraordinary
gains or losses for such period determined in
accordance with generally accepted accounting
principles.
Net Worth: The Borrower's consolidated net worth as deter-
mined in accordance with generally accepted
accounting principles plus subordinated debt. For
purposes of this definition, "subordinated debt"
means indebtedness of the Borrower which is
subordinate, in a manner satisfactory to the Lenders,
to the indebtedness due to the Lenders, and the
repayment of which is forbidden during the existence
of any Event of Default hereunder; provided however,
that any such indebtedness shall not be deemed
subordinated debt to the extent of the amount of
principal payments that are due thereon within one
(1) year from the date of determination.
New York
Prime: The floating interest rate published as the
"Prime Rate" (the base rate on corporate loans posted
by at least 75% of the nation's 30 largest banks) in
the Wall Street Journal on the first day of each
month, or if no rate is published on
the first day of any month, on the first day
thereafter when such rate is published. For purposes
of this Agreement, New York Prime shall fluctuate on
a monthly basis. Changes to New York Prime shall be
effective on the first day of each month based on the
"Prime Rate" in effect on such day.
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Norwest: Norwest Bank Nebraska, N.A., a national banking
association having its principal place of business at
20th and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
its successors and assigns.
Notes: Those certain promissory notes from the Borrower to
the Lenders dated as of May 3, 1996, July 17, 1996,
and July 31, 1996, including, without limitation, the
Notes to the Banks as referenced in Section 2.1
hereof, and such additional term notes as the parties
may hereafter agree to add hereto as Notes.
Operating
Cash Flow: The Borrower's consolidated average monthly earnings
or loss before interest, depreciation, amortization
and taxes, less current tax expense and plus or minus
any non-ordinary non-cash charges or credits to
earnings, which average shall be based on the
Borrower's actual financial results in the two (2)
full calendar months preceding the date of
determination. For purposes of calculating Operating
Cash Flow for this Agreement, the Borrower shall not
permit deferred commission expenses to be capitalized
for any period in excess of twelve (12) months.
Operative
Documents: This 1996 Loan Agreement, the Notes, the Security
Agreement, the financing statements regarding the
Collateral and the documents and certificates, other
than the Purchase Agreement, delivered pursuant to
Article VI.
Purchase
Agreement: The Asset Purchase and Sale Agreement dated as of
May 3, 1996, between the Borrower and Broadcast
Partners.
Quarterly
Compliance
Certificate: The certificate delivered to the Lenders by the
Borrower pursuant to Section 5.1(d).
Related
Bank Debt: The aggregate unpaid balance of all indebtedness,
now or hereafter existing (including future advances)
under the Related Loan Agreements, including, without
limitation, the amounts outstanding under those
certain promissory notes from the Borrower to FNB-O,
FirsTier and FNB-W dated as of October 13, 1992 and
December 7, 1992; the amounts outstanding under the
Existing Term Notes; the amounts outstanding under
the revolving credit notes issued under the Revolving
Credit Agreement, and under any term notes issued to
convert such revolving credit notes or any portion
thereof to a term obligation; all extensions,
renewals, and substitutions of or for the foregoing;
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and all obligations, if any, as to the accrued and
unpaid Interest Rate Protection Contract Amounts.
Related
Loan
Agreements: The Loan Agreement dated as of October 9, 1992
between the Borrower and FNB-O, FirsTier and FNB-W,
and the Revolving Credit Agreement, and any loan
agreements issued in extension, renewal, replacement,
or reinstatement of the foregoing, in each case as
any such agreement is amended from time to time.
Release: The Federal Reserve Statistical Release.
Restricted
Quarter: This term shall have the meaning set forth in Section
2.2 hereof.
Revolving Credit
Agreement: The 1996 Revolving Credit Agreement dated as of June
28, 1996, between the Borrower and the Lenders as
amended by the First Amendment to 1996 Revolving
Credit Agreement, dated as of July 31, 1996, and by
the Second Amendment to 1996 Revolving Credit
Agreement, dated as of December 27, 1996; and, as
further amended and restated by the 1997 Revolving
Credit Agreement, dated as of February 26, 1997,
between the Borrower and the Lenders, and as further
amended or restated from time to time.
Revolving
Credit Rate: The floating interest rate announced from time
to time by FNB-O as its "National Base Rate." The
National Base Rate is set by FNB-O, solely in its
discretion, to reflect generally the rates charged by
national money center banks as their reference rates.
(Previously, the rate was announced by FNB-O as its
"New York Base Rate.") Rates charged by FNB-O may be
at, above or below the National Base Rate, as
determined by FNB-O as to each respective customer.
Security
Agreement: The 1996 Restated Security Agreement restated as of
May 3, 1996, between the Borrower and FNB-O, as agent
for the Lenders and others, as amended by the First
Amendment to 1996 Restated Security Agreement, dated
as of June 28, 1996; the Second Amendment to 1996
Restated Security Agreement, dated as of July 31,
1996; and the Third Amendment to 1996 Restated
Security Agreement, dated as of December 27, 1996;
and as further amended and restated by the 1997
Security Agreement dated as of February 26, 1997,
between the Borrower and FNB-O, as agent for the
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Lenders and others and as further amended or restated
from time to time. References in the Notes to the
1996 Restated Security Agreement shall mean the
Security Agreement as defined herein.
Subsidiaries: Any corporation, business association, partnership,
joint venture, limited liability company or other
business entity in which the Borrower, or one or more
of its Subsidiaries, or the Borrower and one or more
of its Subsidiaries has either (i) more than 50% of
the equity ownership thereof, or (ii) the power to
elect a majority of the directors or to control the
identification of the managing or general partners or
similar governing persons thereof.
Sumitomo: The Sumitomo Bank, Limited, a Japanese bank being
represented by its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and acting
through its Chicago branch.
Total
Indebtedness: All loans and other obligations of the Borrower and
its Subsidiaries, without duplication, for borrowed
money (including, without limitation, the
indebtedness due to the Lenders and the holders of
the Related Bank Debt) regardless of the maturity
thereof but such term shall not include subordinated
debt of the Borrower, as such term is defined in the
definition of Net Worth, up to $15,000,000 if such
subordinated debt was existing on May 3, 1996. For
purposes of this definition of "Total Indebtedness,"
indebtedness under an interest rate protection
Agreement shall mean the amount, if any, at the time
of determination, of the unpaid Interest Rate
Protection Contract Amounts; provided, however, that
solely for purposes of voting under this Agreement by
the Lenders, "Total Indebtedness" will not include
such Interest Rate Protection Contract Amounts.
Trigger
Event: This term shall have the meaning set forth in Section
2.2 hereof.
All accounting terms not otherwise defined herein shall have the meaning
ordinarily applied under generally accepted accounting principles.
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II. TERM FACILITY
2.1. Term Credit. The Banks agree to advance $48,490,000 to the
Borrower for the purchase of substantially all of the assets of Broadcast
Partners. Such advances shall be made, in one or more closings, on a pro rata
basis by the Banks, based on the following maximum advance limits for each Bank:
(1) as to FNB-O, $10,780,000; (ii) as to FNB-W, $245,000; (iii) as to NBD,
$6,223,000; (iv) as to Norwest, $4,047,000; (v) as to LaSalle, $10,388,000; (vi)
as to Mercantile, $5,333,900; (vii) as to Sumitomo, $5,170,000; (viii) as to
First Bank, $1,933,000; and (ix) as to Montreal, $4,370,100.
It is understood and agreed by the parties that the foregoing advances
by FNB-O, FNB-W, and NBD were made at the initial closing under the 1996 Term
Credit Agreement on May 3, 1996. The foregoing advance by Norwest represents an
advance of $1,822,000 which was made at the initial closing under the Agreement
on May 3, 1996, and an additional advance of $2,225,000, which was made at the
closing under the First Amendment on July 17, 1996. The foregoing advances by
Mercantile, Sumitomo and First Bank were made at the closing under the First
Amendment on July 17, 1996. The advance made by Montreal was made at the closing
of the Second Amendment on July 31, 1996; the proceeds of such advance were used
to prepay the existing Note held by Broadcast Partners in the remaining
principal amount of $4,070,100, and to provide an additional $300,000 to the
Borrower. The advance made by LaSalle was made on December 27, 1996, at the
closing of the Third Amendment. This Agreement shall not be deemed to extinguish
any existing indebtedness of the Borrower under the 1996 Term Credit Agreement
or the Notes issued thereunder or to release, terminate or affect the priority
of any security therefor.
2.2. Notes. The Notes shall bear interest on the principal loan
amount thereof outstanding through June 30, 1999, at the rate of 8.25% per
annum; thereafter the interest rate for the balance of the term shall be set on
June 30, 1999, at two percent (2.00%) above the yield on constant maturity
Treasury Bonds with maturities of three years, as quoted for the Business Day
immediately preceding June 30, 1999 in the applicable Release. Notwithstanding
the foregoing, the Notes issued to the following Lenders shall bear interest as
follows: (i) as to First Bank, at the rate of 8.36% per annum through June 30,
1999 (whereupon the interest rate reset described above shall be applicable);
and (ii) as to Mercantile, NBD, Sumitomo, Norwest, FNB-W and Montreal, at a
variable rate per annum equal to New York Prime minus one-half of one percent
(0.5%). After an Event of Default has occurred, interest shall accrue: (i) with
respect to the fixed rate Notes, on the entire outstanding balance of principal
and interest at a fluctuating rate equal to the Revolving Credit Rate plus four
percent (4.00%); and (ii) as to the floating rate Notes, on the principal loan
amount thereof at a rate per annum equal to three and one-half percent (3.5%)
above New York Prime. Interest shall be calculated on actual days elapsed and a
year of 360 days. If the Borrower's most recent Quarterly Compliance Certificate
shows that, as of the end of the prior quarter, Total Indebtedness was at such
date more than thirty-six (36) times the Operating Cash Flow at the end of such
quarter, the current quarter shall be deemed a "Restricted Quarter." If, any
time during a Restricted Quarter (including, without limitation, during any
period in such quarter prior to delivery of the Quarterly Compliance
Certificate), the interest rate accruing on any Note is less than seven and
one-half percent (7.50%), a "Trigger Event" shall be deemed to have occurred.
Upon the occurrence of a Trigger Event, the Borrower shall be obligated to pay
the Lenders the following fees: (i) three-eighths of one percent (.375%) of the
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outstanding principal balance of such Note as of the date preceding the Trigger
Event, which amount shall be payable promptly upon invoicing by FNB-O; (ii) the
same amount as computed in clause (i), payable on the six-month anniversary of
the Trigger Event; and (iii) the same amount as computed in clause (i), payable
on the twelve-month anniversary of the Trigger Event.
2.3. Payments. Interest on the unpaid balance of the Notes
shall be due on the last day of each month beginning May 31, 1996. The principal
amount of each respective Note shall become due and payable in seventy-two equal
monthly installments, with the first such installment due on January 31, 1997,
and subsequent installments due on the last day of each consecutive month
thereafter. The total amount of all unpaid principal and accrued interest
hereunder shall be due and payable no later than December 31, 2002. In the event
that a payment day is not a Business Day, the payment shall be due on the next
succeeding Business Day. Interest shall continue to accrue on the full unpaid
balance hereunder notwithstanding any permitted or unpermitted failure of the
Borrower to make a scheduled payment or the fact that a scheduled payment day
falls on a day other than a Business Day.
2.4. Fees. The Borrower will pay to FNB-O an initial fee equal
to $14,729, payable at closing. Such fee will be paid to FNB-O and allocated by
FNB-O pro rata among the Banks based on their respective commitments as shown in
Section 2.1 above. Furthermore, the Borrower will pay to FNB-O at closing an
agenting fee equal to $25,500. At the closing of the First Amendment on July 17,
1996, the Borrower paid a fee of $7,330.95 to FNB-O for distribution to the
following Banks: (i) $1,112.50 to Norwest; (ii) $2,666.95 to Mercantile; (iii)
$2,585.00 to Sumitomo; and (iv) $966.50 to First Bank. At the closing of the
Second Amendment on July 31, 1996, the Borrower paid a fee of $2,185.05 to FNB-O
for distribution to Montreal.
2.5 Payment. The Borrower's obligation to make payments of
principal and interest hereunder shall be further evidenced by the Notes, the
form of which is attached hereto as Exhibit A. All obligations of the Borrower
under the Notes and the other Operative Documents shall be payable in
immediately available funds in lawful money of the United States of America at
the principal office of FNB-O in Omaha, Nebraska or at such other address as may
be designated by FNB-O in writing.
2.6 Prepayment. Prepayments of the Notes may be made in
full or in part at any time upon 10 days prior written notice to the Lenders;
provided, however, that unanimous consent of the Lenders shall be required for
any prepayment (other than a prepayment to Broadcast Partners in accordance with
Section 2.6A below) which is not applied pro rata to the Lenders in accordance
with Section 8.2. Prepayment penalties will be required as indicated below:
(a) The Borrower may prepay in full without penalty the
principal loan amounts outstanding under all Notes
which bear interest at a fixed rate in accordance
with Section 2.2 hereof, if such prepayment occurs on
June 30, 1999 and the Borrower has given the Banks at
least 30 days prior written notice of its intention
to make such prepayment.
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(b) If a prepayment of a Note which bears interest at a
fixed rate in accordance with Section 2.2 hereof
occurs other than in accordance with (a) above, the
Borrower shall pay to the respective Bank payee
thereof, at such payee's option, either: (1) the
Make-Whole Premium due in respect of such prepayment;
or (2) a prepayment fee equal to one and one-half
percent (1.50%) of the amount of such prepayment.
(c) The Borrower shall not be obligated to pay a
Make-Whole Premium or prepayment fee to Broadcast
Partners or to any Bank payee of a Note which bears
interest at a floating rate indexed to New York
Prime.
2.6A Permitted Prepayments to Broadcast Partners. Broadcast
Partners' Notes were prepaid in full at the closing of the Second Amendment on
July 31, 1996.
2.7 Security. All obligations of the Borrower hereunder and under the
Operative Documents, including, without limitation, the Borrower's obligations
to make payments of principal and interest shall be secured by a first security
interest in the Collateral, as more specifically described in the Security
Agreement.
2.8 Related Loan Agreements. Nothing herein shall be deemed to alter or
amend the Borrower's obligations under the Related Loan Agreements, the Related
Bank Debt or any collateral security therefor, all of which shall continue in
full force and effect in accordance with the terms thereof.
III. [INTENTIONALLY OMITTED]
IV. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that as of May 3, 1996, and the
date hereof the following are and shall be true and correct:
4.1 Corporate Existence. It and each of its Subsidiaries, if any, is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and duly qualified and in good standing in all states
where it is doing business except where the failure to be so qualified would not
have a material adverse effect on it and it has full power and authority to own
and operate its properties and to carry on its business. As of May 3, 1996 and
the date hereof , the Borrower has no Subsidiaries.
4.2 Corporate Authority. It has full corporate power, authority and
legal right to execute, deliver and perform the Operative Documents to which it
is a party, and all other instruments and agreements contemplated hereby and
14
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thereby, and to perform its obligations hereunder and thereunder; and such
actions have been duly authorized by all necessary corporate action, and are not
in conflict with any applicable law or regulation, or any order, judgment or
decree of any court or other governmental agency or instrumentality or its
articles of incorporation or bylaws, or with any provisions of any indenture,
contract or agreement to which it or any of its Subsidiaries is a party or by
which it or any of its Subsidiaries or any of its or their property may be
bound.
4.3 Validity of Agreements. The Borrower's Operative Documents have
been duly authorized, executed and delivered and constitute its legal, valid and
binding agreements, enforceable against the Borrower in accordance with their
respective terms (except to the extent that enforcement thereof may be limited
by any applicable bankruptcy, reorganization, moratorium or similar laws now or
hereafter in effect, or by principles of equity).
4.4 Litigation. Neither the Borrower nor any Subsidiary is a party to
any pending lawsuit or proceeding before or by any court or governmental body or
agency, which is likely to have a materially adverse effect on the Borrower's
ability to perform its obligations under its Operative Documents; nor is the
Borrower aware of any threatened lawsuit or proceeding, to which it or any
Subsidiary may become a party or of any investigation of any Court or
governmental body or agency into its affairs, which if instituted would have a
material adverse effect upon the Borrower's ability to perform its obligations
under its Operative Documents.
4.5 Governmental Approvals. The execution, delivery and performance by
the Borrower of the Operative Documents or the Purchase Agreement do not require
the consent or approval of, the giving of notice to, the registration with, or
the taking of any other action in respect of, any federal, state or other
governmental authority or agency other than as contemplated herein and therein.
4.6 Defaults Under Other Documents. Neither the Borrower nor any
Subsidiary is in default or in violation (nor has any event occurred which, with
notice or lapse of time or both, would constitute a default or violation) under
any document or any Agreement or instrument to which it may be a party or under
which it or any of its properties may be bound and the result of which would
have a material adverse effect upon the Borrower's ability to perform its
obligations under its Operative Documents.
4.7 Judgments. There are no outstanding or unpaid judgments (which are
not adequately bonded) of the Borrower or any Subsidiary which would have a
material adverse effect upon the Borrower's ability to perform its obligations
under its Operative Documents.
4.8 Compliance with Laws. Neither the Borrower nor any Subsidiary is in
violation of any laws, regulations or judicial or governmental decrees in any
respect which could have any material adverse effect upon the validity or
enforceability of any of the terms of the Borrower's Operative Documents or
which could have a material adverse effect upon the Borrower's ability to
perform its obligations under its Operative Documents.
15
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4.9 Taxes. All tax returns of the Borrower and its Subsidiaries for
material taxes required to be filed have been filed or extensions permitted by
law have been obtained; all taxes of the Borrower and its Subsidiaries of a
material nature and which are due and payable as reflected on such returns have
been paid, other than taxes which are due but for which only a nominal late
payment penalty is payable and for which the taxing authority is not yet
entitled to enforce its remedies for payment thereof and other than taxes being
contested in good faith and with respect to which adequate reserves have been
established; and no material amounts of taxes of the Borrower and its
Subsidiaries not reflected on such returns are payable.
4.10 Collateral. The Borrower has good and marketable title to the
Collateral and the Collateral is free from all liens, encumbrances or security
interests, except as disclosed on Schedule A attached hereto. The Borrower's
principal place of business, chief executive office, and the principal place
where it keeps its records concerning the Collateral is Suite 200, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Borrower also keeps certain of its
records regarding the Collateral at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
4.11 Pension Benefits. Neither the Borrower nor any Subsidiary
maintains a "Plan" as defined in Section 3 of the Employees Retirement Income
Security Act of 1974 ("ERISA"), or each such entity is in compliance with the
minimum funding requirements with respect to any such "Plan" maintained by it
and it has not incurred any material liability to the Pension Benefit Guaranty
Corporation ("PBGC") or otherwise under ERISA in connection with any such Plan.
4.12 Margin Regulations. No part of the proceeds of any advance
hereunder shall be used to purchase or carry any "margin stock" (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
of the United States) or any "margin security" (within the meaning of Regulation
G of said Board of Governors), or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or margin security. No part of the
proceeds of any advance hereunder shall be used for any purpose that violates,
or which is inconsistent with, the provisions of Regulation G, T, U or X of said
Board of Governors.
4.13 Financial Condition. The financial condition of the Borrower and
its Subsidiaries is truly and accurately set forth in the most recent financial
statement which has been provided to the Lenders and no material adverse change
has occurred which would make such financial statement inaccurate or misleading.
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V. COVENANTS
The Borrower hereby covenants that:
5.1 Financial Reports.
(a) Within forty-five (45) days after the end of each
month, the Borrower, at its sole expense, shall
furnish the Lenders a consolidated balance sheet,
statement of earnings of the Borrower and its
consolidated Subsidiaries, and a statement of cash
flows of the Borrower and its consolidated
subsidiaries and such financial statements on a
consolidating basis as to the Borrower, all such
financial statements to be prepared in accordance
with generally accepted accounting principles
consistently applied and certified as completed and
correct, subject to normal changes resulting from
year-end audit adjustments, by the chief financial
officer of the Borrower.
(b) Within ninety (90) days after the close of the
Borrower's fiscal year, the Borrower, at its sole
expense, shall furnish the Lenders: (i) a
consolidated balance sheet, a statement of earnings
of the Borrower and its consolidated Subsidiaries and
a statement of cash flows of the Borrower and its
consolidated subsidiaries, certified by Deloitte &
Touche, or other independent certified public
accountants acceptable to the Lenders, that such
financial reports fairly present the financial
condition of the Borrower and its consolidated
Subsidiaries and have been prepared in accordance
with generally accepted accounting principles
consistently applied; and (ii) a certificate from
such accountants certifying that in making the
requisite audit for certification of the Borrower's
financial statements, the auditors either (1) have
obtained no knowledge, and are not otherwise aware
of, any condition or event which constitutes an Event
of Default or which with the passage of time or the
giving of notice would constitute an Event of Default
under Sections 5.3, 5.4, 5.7, 5.9(b), 5.9(d), 5.11,
5.19 or 5.20; or (2) have discovered such condition
or event, as specifically set forth in such
certificate, which constitutes an Event of Default or
which with the passage of time or the giving of
notice would constitute an Event of Default under
such sections. The auditors shall not be liable to
the Lenders by reason of the auditors' failure to
obtain knowledge of such event or condition in the
ordinary course of their audit unless such failure is
the result of negligence or willful misconduct in the
performance of the audit.
(c) Within thirty (30) days after submission to the
Securities and Exchange Commission, the Borrower
shall provide to the Lenders copies of its Forms 10K
and 10Q, as submitted to the Securities and Exchange
Commission during the term of this Agreement.
(d) Within twenty (20) days after the end of each
quarter, the Borrower, at its expense, shall furnish
17
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the Lenders a certificate of the chief financial
officer of the Borrower in the form of Exhibit C,
setting forth such information (including detailed
calculations) sufficient to verify the conclusions
of such officer after due inquiry and review, that:
(i) The Borrower and each Subsidiary, either (y)
is in compliance with the requirements set
forth in this Agreement or (z) is NOT in
compliance with the foregoing for reasons
specifically set forth therein; and
(ii) The chief financial officer of the
Borrower has reviewed or caused to be
reviewed all of the terms of the Operative
Documents of the Borrower and that such
review either (1) has NOT disclosed the
existence of any condition or event which
constitutes an event of default or any
condition or event which with the passage of
time or the giving of notice would
constitute an event of default under the
Operative Documents or (2) has disclosed the
existence of a condition or event which
constitutes an event of default, or a
condition or event which with the passage of
time or the giving of notice would
constitute an event of default, under the
aforesaid instrument or instruments and the
specific condition or event is specifically
set forth.
For the quarter ended December 31, 1996, the Borrower
shall provide the Quarterly Compliance Certificate in
the form of Exhibit B, plus the Quarterly Compliance
Certificate in the form which was required by the
1996 Term Credit Agreement in effect on December 31,
1996.
(e) The Borrower shall provide the Lenders with such
other financial reports and statements as the Lenders
may reasonably request.
5.2 Corporate Structure and Assets. The Borrower shall not merge or
consolidate with any other corporation or entity unless the Borrower shall be
the surviving entity, nor sell any assets except items that are obsolete or no
longer necessary for operation of the business, other than in the ordinary
course of business without the prior written consent of the Lenders. The Lenders
shall be entitled to receive as a prepayment on the Notes the proceeds of any
sale of assets of the Borrower which are prohibited by the preceding sentence.
Notwithstanding the foregoing prepayment requirements, any such prohibited sale
shall remain a violation of this Agreement. In addition, the Borrower shall not
engage in any business materially different from that in which it is presently
engaged without the prior written consent of the Lenders, which consent shall
not be unreasonably withheld. The foregoing restrictions on mergers and
consolidations shall not apply if: (i) in the case of a merger, the Borrower is
the surviving entity and expressly reaffirms its obligations hereunder; (ii) in
the case of a consolidation, the resulting corporation expressly assumes the
obligations of the Borrower hereunder; (iii) the surviving or resulting
corporation is organized under the laws of the United States or a jurisdiction
thereof; (iv) after giving effect to such merger or consolidation, the surviving
or resulting corporation will be engaged in substantially the same lines of
business as are now engaged in by the Borrower; and (v) immediately after giving
effect to such merger or consolidation, no Event of Default will exist
hereunder.
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5.3 Net Worth. The Borrower shall maintain a minimum Net Worth during
the term of this Agreement of at least $23,500,000 plus fifty percent (50%) of
the net income (but not losses) of the Borrower for each fiscal year, commencing
with the fiscal year beginning January 1, 1997; provided, however, solely for
purposes of determining compliance with the provisions of this Section 5.3, "Net
Worth" shall not include any subordinated debt.
5.4 Indebtedness.
(a) The Borrower shall not at any time permit the sum of
the Total Indebtedness to the Lenders and the holders
of the Related Bank Debt to exceed forty-eight (48)
times Operating Cash Flow.
(b) On the day the Borrower or a Subsidiary becomes
liable with respect to any debt and immediately after
giving effect thereto and to the concurrent
retirement of any other debt, the sum of Total
Indebtedness, plus the amount of any outstanding
subordinated debt of the Borrower and its
Subsidiaries, plus the contingent obligations of the
Borrower and its Subsidiaries under any guaranty of
the debt of any other person or entity (other than
unsecured debt of a Subsidiary incurred in the
ordinary course of business for other than borrowed
money or to finance the purchase price of any
property or business) shall not exceed an amount
equal to sixty (60) times Operating Cash Flow at such
date.
5.5 Use of Proceeds. The Borrower shall not use the proceeds of the
advances hereunder to purchase or carry any "margin stock" (within the meaning
of Regulation U of the Board of Governors of the Federal Reserve System of the
United States) or any "margin security" (within the meaning of Regulation G of
said Board of Governors), or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or margin security. No part of such
proceeds shall be used for any purpose that violates, or which is inconsistent
with, the provisions of Regulation G, T, U or X of said Board of Governors. This
section shall not preclude the Borrower from repurchasing any of its own issued
and outstanding common stock; provided, however, that such repurchase does not
result in the occurrence of any other Event of Default hereunder.
5.6 Notice of Default. The Borrower shall give to the Lenders
prompt written notification of the existence or occurrence of:
(a) any fact or event which results, or which with notice
or the passage of time, or both, would result in an
Event of Default hereunder;
(b) any proceedings instituted by or against the Borrower
in any federal, state or local court or before any
governmental body or agency, or before any
arbitration board, or any such proceedings threatened
against the Borrower by any governmental agency,
which is likely to have a material adverse effect
upon the Borrower's ability to perform its
obligations under its Operative Documents;
19
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(c) any default or event of default involving the payment
of money under any Agreement or instrument which is
material to the Borrower or any Subsidiary to which
such entity is a party or by which it or any of its
property may be bound, and which default or event of
default would have a material adverse effect upon the
Borrower's ability to perform its obligations under
its Operative Documents; and
(d) the Borrower shall give immediate notice of the
commencement of any proceeding under the Federal
Bankruptcy Code by or against the Borrower or any
Subsidiary.
5.7 Distributions.
(a) Neither Borrower nor any Subsidiary shall declare
any dividends or make any cash distribution in
respect of any shares of its capital stock or
warrants of its capital stock, without the prior
written consent of the Lenders; provided, however,
that the Borrower may declare stock dividends;
provided, further, that the Borrower need not obtain
the Lenders' consent with respect to (i) dividends in
any one (1) year which are, in aggregate, less than
25% of the Borrower's Net Operating Profit After
Taxes in the previous four (4) quarters, as reported
to the Lenders pursuant to Section 5.1; or (ii)
dividends or distributions from any consolidated
Subsidiary.
(b) Neither the Borrower nor any Subsidiary other than a
Subsidiary which is wholly-owned by the Borrower
shall purchase, redeem, or otherwise retire any
shares of its capital stock or warrants of its
capital stock if, immediately after the making of
such purchase or redemption, the Borrower or any
Subsidiary will be in default of any other covenant
or provision of this Agreement (including, without
limitation, the covenants and provisions pertaining
to minimum net worth and limitations on
indebtedness).
5.8 Compliance with Law and Regulations. The Borrower and each
Subsidiary shall comply in all material respects with all applicable federal and
state laws and regulations.
5.9 Maintenance of Property; Accounting; Corporate Form; Taxes;
Insurance.
(a) The Borrower and each Subsidiary shall maintain its
property in good condition in all material respects,
ordinary wear and tear excepted, and make all
renewals, replacements, additions, betterments and
improvements thereto necessary for the efficient
operation of its business.
(b) The Borrower and each Subsidiary shall keep true
books of record and accounts in which full and
correct entries shall be made of all its business
transactions, all in accordance with generally
accepted accounting principles consistently applied.
20
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(c) The Borrower and each Subsidiary shall do or cause to
be done all things necessary to preserve and keep in
full force and effect its corporate form of existence
as is necessary for the continuation of its business
in substantially the same form, except where such
failure to do so with respect to any Subsidiary would
not have a material adverse effect on the ability of
the Borrower to perform its obligations under the
Operative Documents.
(d) The Borrower and each Subsidiary shall pay all taxes,
assessments and governmental charges or levies
imposed upon it or its property; provided, however,
that the Borrower or any Subsidiary shall not be
required to pay any of the foregoing taxes which are
being diligently contested in good faith by
appropriate legal proceedings and with respect to
which adequate reserves have been established.
(e) The Borrower shall maintain or cause to be maintained
liability insurance and casualty insurance, in a form
and amount satisfactory to FNB-O as agent for the
Lenders, upon the Collateral (excluding equipment or
inventory provided to Subscribers in the ordinary
course of business) and other tangible assets owned
by it and its Subsidiaries. The Borrower shall name
FNB-O as agent for the Lenders and the holders of the
Related Bank Debt as the loss payee on all such
casualty insurance, and as an additional insured on
all such liability insurance and shall provide the
Lenders with evidence of such insurance upon request.
5.10 Inspection of Properties and Books. The Borrower shall recognize
and honor the right of the Lenders, upon request to an officer of the Borrower,
to visit and inspect any of the properties of, to examine the books, accounts,
and other records of, and to take extracts therefrom and to discuss the affairs,
finances, loans and accounts of, and to be advised as to the same by the
officers of, the Borrower at all such times, in such detail and through such
agents and representatives as the Lenders may reasonably desire.
5.11 Guaranties. Neither the Borrower nor any Subsidiary shall guaranty
or become responsible for the indebtedness of any other person or entity;
provided, however, that a Subsidiary may guaranty the obligation of the
Borrower; provided further, that the Borrower may guaranty the obligations of a
Subsidiary so long as no Event of Default (or not event or occurrence which with
the passage of time or notice, or both, would become an Event of Default) has
occurred or will occur hereunder, taking into account such guaranty and
indebtedness.
5.12 Collateral. Neither the Borrower nor any Subsidiary shall incur or
permit to exist any mortgage, pledge, lien, security interest or other
encumbrance on the Collateral, except as permitted in the Security Agreement.
Subject to Section 5.4(b), the foregoing shall not be construed to prohibit the
Borrower or any Subsidiary from acquiring leased equipment in the ordinary
course of business. Without limiting the generality of the foregoing, the
Borrower covenants and agrees that it shall on request enforce for the benefit
of the Lenders and the holders of the Related Bank Debt, but at the sole expense
of the Borrower, any and all rights and remedies (including, without limitation,
rights to indemnity), that it may have with respect to the existence of any
liens, security interests or other encumbrances that may exist on the property
of the Borrower acquired from Broadcast Partners under the Purchase Agreement.
21
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Notwithstanding anything else to the contrary herein or in the Operative
Documents, Broadcast Partners shall have no right to share in the proceeds of
any such recovery which constitutes the proceeds of any indemnity claim by the
Borrower under the Purchase Agreement.
5.13 Name; Location. The Borrower shall give the Lenders ninety (90)
days notice prior to changing its name, identity or corporate structure, moving
its principal place of business, chief executive office or place where it keeps
its records concerning the Collateral.
5.14 Notice of Change in Ownership or Management. During the term of
this Agreement, the Borrower shall give the Lenders notice of the occurrence of
any of the following described events, which notice shall be given as soon as
the Borrower obtains notice or knowledge thereof:
(a) any change, directly or indirectly, in the existing
controlling interest in the Borrower; or
(b) any material adverse change in its management
personnel. A material adverse change in the
Borrower's management personnel shall be deemed to
have occurred if any one (1) of the following has
occurred with respect to two of the four (4)
individuals who are both officers and members of the
Board of Directors of the Borrower: (i) the
resignation, retirement, or voluntary or involuntary
termination of employment and/or status of such
persons as officers and directors of the Borrower;
(ii) any announcement, notice of intent, resolution
or similar advance notice with respect to the matters
referenced in the foregoing clause; or (iii) the
death, disability or legal incompetence of such
persons.
5.15. Interest Coverage. The ratio of Operating Cash Flow to interest
expense (as determined in accordance with generally accepted accounting
principles but excluding amortization of deferred offering costs and any fees
related to the Trigger Event in Section 2.2 of this Agreement) at the end of
each quarter during the term of this Agreement, as shown on the Quarterly
Compliance Report, shall not be less than 2.25 to 1.0.
5.16 Subordinated Debt. Neither the Borrower nor any Subsidiary shall
incur any subordinated debt or issue any preferred stock or warrants for
preferred stock except upon the prior written consent of the Lenders. Neither
the Borrower nor any Subsidiary shall make any voluntary or optional prepayment
on any subordinated debt without the prior written consent of the Lenders.
Similarly, the Borrower shall not amend its articles of incorporation or any
other documents or agreements relating to the issuance of subordinated debt,
preferred stock or warrants for preferred stock without the prior written
consent of the Lenders. The indebtedness to Broadcast Partners under the Notes
shall not be considered subordinated debt.
5.17 Subsidiaries. The Borrower shall give prompt written notice to the
Lenders of the Borrower's intent to acquire, or the Borrower's acquisition of,
any Subsidiary. Prior to the creation or acquisition of such Subsidiary, the
Borrower (i) shall cause a first security interest in the assets of such
Subsidiary to be perfected in favor of FNB-O, as agent for the Lenders and the
22
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holders of the Related Bank Debt, and (ii) shall cause the Subsidiary to enter
into a security Agreement, to execute and file such financing statements and to
provide opinions all in form satisfactory to the Lenders and the holders of the
Related Bank Debt, as to compliance with this section.
5.18 Amendments to Purchase Agreement. The Borrower shall not amend
the Purchase Agreement without the prior written consent of the Lenders.
5.19 Capital Expenditures. The Borrower shall not incur in any fiscal
year, commencing with the fiscal year beginning January 1, 1997, capital
expenditures, determined in accordance with generally accepted accounting
principles, of more than $1,000,000; provided, however, that capital
expenditures for (a) equipment to be used by subscribers of the Borrower, and
(b) telecommunications equipment, computer equipment, software and software
consulting shall not be counted for purposes of this annual limitation.
5.20 Acquisitions. The Borrower shall not acquire any stock, or any
equity interest in, or warrants therefor or securities convertible into the
same, or a substantial portion of the assets of, another entity without the
prior written consent of the Lenders; provided, however, that the Borrower shall
be permitted to make on a cumulative basis from and after the date of this
Agreement such acquisitions in an amount not to exceed Six Million Dollars
($6,000,000) in the aggregate without the consent of the Lenders if such
acquisitions are in or from entities which:
(a) are in the business of electronically communicating
time-sensitive information to subscribers;
(b) have their principal place of business in the United
States; and
(c) except for Market Communications Group, L.L.C., have
a positive operating cash flow, calculated in the
same method as is used to calculate the Borrower's
Operating Cash Flow for purposes of this Agreement.
VI. CONDITIONS PRECEDENT
6.1 Closing Conditions. Any and all obligations of the
Lenders hereunder are subject to satisfaction of the following conditions
precedent:
(a) FNB-O, as agent, shall have received an opinion of
counsel to the Borrower covering such matters as the
Lenders may request (including, without limitation,
corporate existence and good standing, corporate
authority, due authorization, execution and delivery
of the Operative Documents, the legal, valid, binding
and enforceable nature of the Operative Documents,
the perfection and priority of the security interest
in the Collateral granted to the Lenders, and the
Borrower's compliance with applicable state and
federal laws in connection with the equity offering
specified in Section 6.1(f) below), such opinion to
be satisfactory in form and substance to counsel to
FNB-O. To the extent that FNB-O agrees to accept a
post closing opinion from the Borrowers' counsel as
to security interest issues, the same shall be
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delivered no later than ten days after completion of
the necessary UCC searches, which shall be ordered
promptly after recording any UCC terminations
received by the Borrower upon closing of the Purchase
Agreement and in any event, such opinion shall be
delivered no later than 30 days after closing;
(b) FNB-O, as agent, shall have received such
certificates and documents as the Lenders may
reasonably request from the Borrower, including
articles of incorporation and bylaws, certificates
regarding good standing, incumbency, copies of other
corporate documents, and appropriate authorizing
resolutions;
(c) the Operative Documents shall have been duly
authorized and executed and shall be in full force
and effect, and such UCC financing statements shall
have been executed and filed in such offices as may
be appropriate to perfect the security interest of
FNB-O, as agent for the Lenders, in the Collateral,
it being understood, however, that certain UCC
amendments and terminations will be filed after
closing as directed by FNB-O;
(d) FNB-O, as agent, shall have received copies of the
Purchase Agreement, satisfactory in form and
substance to FNB-O;
(e) the closing of the Purchase Agreement shall occur
prior to or simultaneously with the closing of this
Agreement; and
(f) the Borrower shall have completed an offering of its
common stock and received proceeds therefrom in the
approximate amount of $15,010,000, satisfactory in
form and substance to the Banks.
VII. DEFAULTS AND REMEDIES
7.1 Events of Default. Any of the following shall be deemed an event of
default under this Agreement (an "Event of Default"):
(a) Any payment of principal required by any of the
Operative Documents shall not be paid when due.
(b) Any payment of interest or other fees due hereunder
or under any of the Operative Documents shall not be
paid within fifteen (15) calendar days after the date
on which such payment was invoiced or due.
(c) Any representation or warranty of the Borrower under
any of the Operative Documents, or any financial
reports or statements or certificates submitted
pursuant to this Agreement, shall prove to have been
false in any material respect when made.
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(d) A failure of the Borrower or any Subsidiary to comply
with any requirement or restriction applicable to
such entity and contained in Sections 5.1, 5.2, 5.3,
5.4, 5.7, 5.11, 5.12, 5.13, 5.14, 5.15, 5.16, 5.19 or
5.20 of this Agreement.
(e) A failure of the Borrower or any Subsidiary to comply
with any requirement or restriction contained in any
provision of the Operative Documents not otherwise
specified in this Article VI, which failure remains
unremedied for ten (10) days following receipt of
notice from FNB-O on behalf of the Lenders.
(f) The occurrence of a default or a breach of any of the
obligations of the Borrower or any Subsidiary (other
than obligations of such Subsidiary to the Borrower)
under any note, loan agreement, preferred stock,
subordinated debt instrument or agreement, or any
other agreement evidencing an obligation to repay
borrowed money.
(g) The entry of a final judgment against the Borrower or
any Subsidiary for the payment of money, which is not
covered by insurance, and the expiration of thirty
(30) days from the date of such entry during which
the judgment is not discharged in full or stayed.
(h) The occurrence of any one or more of the following:
(1) The Borrower or any Subsidiary shall file a
voluntary petition in bankruptcy or an order
for relief shall be entered in a bankruptcy
case as to such entity or shall file any
petition or answer seeking or acquiescing in
any reorganization, arrangement,
composition, readjustment, liquidation,
dissolution or similar relief for itself
under any present or future federal, state
or other statute, law or regulation relating
to bankruptcy, insolvency or other relief
for debtors; or shall seek or consent to or
acquiesce in the appointment of any trustee,
receiver or liquidator of such entity or of
all or any part of its property, or of any
or all of the royalties, revenues, rents,
issues or profits thereof, or shall make any
general assignment for the benefit of
creditors, or shall admit in writing its
inability to pay its debts or shall
generally not pay its debts as they become
due; or
(2) A court of competent jurisdiction shall
enter an order, judgment or decree approving
a petition filed against the Borrower or any
Subsidiary seeking any reorganization,
dissolution or similar relief under any
present or future federal, state or other
statute, law or regulation relating to
bankruptcy, insolvency or other relief for
debtors, and such order, judgment or decree
shall remain unvacated and unstayed for an
aggregate of thirty (30) days (whether or
not consecutive) from the first date of
entry thereof; or any trustee, receiver or
liquidator of the Borrower or any Subsidiary
or of all or any part of its property, or of
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any or all of the royalties, revenues,
rents, issues or profits thereof, shall be
appointed without the consent or
acquiescence of such entity and such
appointments shall remain unvacated and
unstayed for an aggregate of thirty (30)
days (whether or not consecutive); or
(3) A writ of execution or attachment or any
similar process shall be issued or levied
against all or any part of or interest in
the Collateral, or any judgment involving
monetary damages shall be entered against
the Borrower or any Subsidiary which shall
become a lien on the Collateral or any
portion thereof or interest therein and such
execution, attachment or similar process or
judgment is not released, bonded, satisfied,
vacated or stayed within thirty (30) days
after its entry or levy.
(i) Any event of default shall occur under any Operative
Document.
(j) A change shall occur after November 8, 1993,
directly or indirectly, in the ownership or control
of the Borrower; provided, however, that changes in
the ownership or control of, or new issuances of,
voting common stock which do not exceed,
cumulatively, 50% of the total issued and outstanding
shares of the Borrower as of September 30, 1993 shall
not be deemed an Event of Default under this Section
7.1(j); provided further, that acquisitions of
additional shares by members of the existing
executive management group of the Borrower shall not
be counted as changes in the ownership or control of
the Borrower under this Section 7.1(j). For purposes
of computing the total issued and outstanding shares
as of September 30, 1993, warrants and options for
such shares shall be included.
(k) An Event of Default shall occur under any Related
Bank Debt or the Related Loan Agreement and the
expiration of any applicable cure period thereunder.
(l) The Borrower shall be obligated to prepay all or any
portion of its subordinated debt as a result of a
Change of Control.
(m) The Borrower pays, or is determined to be obligated
to pay, any indemnity to Broadcast Partners under the
Purchase Agreement in excess of $1,000,000 in the
aggregate.
7.2 Remedies. If an Event of Default occurs and is continuing, upon the
election of the Lenders holding two-thirds of the then outstanding aggregate
Total Indebtedness of the Borrower to the Lenders (including under the Notes,
the Related Bank Debt and any similar indebtedness but excluding amounts due
under the Purchase Agreement), the entire unpaid principal amount under the
26
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Notes and all Related Bank Debt, together with interest accrued thereon, shall
become immediately due and payable without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived, and the Lenders
may exercise their rights under the other Operative Documents and the Related
Loan Agreements (and the operative documents with respect thereto), including,
without limitation, under the Security Agreement. For purposes of this Article
VII, the term Lenders includes First Bank, Boatmen's and . In addition, the
Lenders shall have such other remedies as are available at law and in equity.
Remedies under this Agreement, the Operative Documents, the Related Loan
Agreements (and the operative documents with respect thereto) are cumulative.
Any waiver must be in writing by the Lenders and no waiver shall constitute a
waiver as to any other occurrence which constitutes an Event of Default or as to
any party not specifically included in such written waiver.
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ARTICLE VIII. INTER-CREDITOR AGREEMENTS
8.1 FNB-O as Servicer. FNB-O will act as sole servicer of the loans
evidenced by the Notes issued hereunder and the Related Bank Debt (other than
interest rate protection agreements). For purposes of this Article VIII, the
term Lenders includes First Bank, Boatmen's and the term Event of Default means
any Event of Default hereunder or under any Related Bank Debt. FNB-O will
enforce, administer and otherwise deal with the loans made by the Lenders in
accordance with safe and prudent banking standards employed by FNB-O in the case
of the loan made by FNB-O. Without limiting the generality of the foregoing,
FNB-O will, on its own behalf and on behalf of the Lenders: (i) maintain
originals of the Operative Documents and the operative documents in connection
with the Related Loan Agreements; (ii) receive requests for advances from the
Borrower under the Related Loan Agreements and make such advances on behalf of
the revolving lenders in such agreements (provided that FNB-O is assured of
reimbursement therefor by the other revolving lenders for their pro rata
shares); (iii) receive payments and prepayments from the Borrower and apply such
payments as provided in Section 8.2; (iv) receive notices from the Borrower and
send copies thereof to the Lenders if FNB-O has reasonable cause to believe that
such Lenders have not received such notice from another source; and (v) advise
the Lenders of the occurrence of any Event of Default which FNB-O obtains actual
knowledge of. The Lenders agree not to attempt to take any action against the
Borrower under the Operative Documents, Related Bank Debt or with respect to the
indebtedness evidenced thereby without FNB-O's consent unless holders of
two-thirds of the then outstanding aggregate Total Indebtedness of the Borrower
to the Lenders (including under the Notes, the Related Bank Debt and any similar
indebtedness but excluding amounts due under the Purchase Agreement) shall have
requested FNB-O to take specific action against the Borrower and FNB-O shall
have failed to do so within a reasonable period after receipt of such request.
All actions, consents, waivers and approvals by the Lenders shall be deemed
taken or given and amendments hereto deemed agreed to if the holders of more
than two-thirds of the outstanding aggregate Total Indebtedness of the Borrower
to the Lenders shall have indicated their consent thereto. Notwithstanding the
foregoing, unanimous approval of the applicable Lenders under the Notes or the
Related Bank Debt shall be required for: (i) any reduction or compromise of the
principal loan amount of the Notes or the Related Bank Debt, the amount or rate
of interest accrued or accruing thereon or the fees due hereunder; and (ii)
extension of the date of any scheduled payment; and unanimous consent of all the
Lenders shall be required for (iii) permitting the sale of or releasing the
security interest of the Lenders in Collateral which comprises more than ten
percent (10%) net book value of fixed assets of the Borrower; and (iv) any
amendment of Sections 8.1 or 8.2 hereof. A Lender's commitment hereunder may not
be increased without the consent of such Lender, it being understood, however,
that increases in the total facility hereunder may be made with the consent of
the holders of more than two-thirds of the aggregate total outstanding
obligations of the Borrower to the Lenders under the Agreement, so long as such
increase does not result in the increase of any non-consenting Lender's
commitment hereunder.
8.2 Application of Payments. Until the earlier of the occurrence of an
Event of Default or any Lender's giving of notice to the others that it deems
itself insecure, payments or prepayments made by the Borrower may be applied to
the indebtedness designated by the Borrower or otherwise applied as follows:
(a) first, to pay interest to date on the revolving
credit due under the Revolving Credit Agreement and
fees due to the Lenders and holders of the Related
Bank Debt;
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(b) second, to make payments due but unpaid under any
of the Notes and Related Bank Debt; and
(c) third, pro rata to the Lenders, such pro rata share
to be determined as set forth below in subsection
(bb) of this Section 8.2.
After the occurrence of an Event of Default or any Lender's giving of notice
that it deems itself insecure, payments or prepayments on the Notes and Related
Bank Debt received by FNB-O or any of the Lenders and funds realized upon the
disposition of any of the Collateral shall be applied as follows:
(aa) first, to reimburse FNB-O for any costs, expenses,
and disbursements (including attorneys' fees) which
may be incurred or made by FNB-0: (i) in connection
with its servicing obligations; (ii) in the process
of collecting such payments or funds; or (iii) as
advances made by FNB-O to protect the Collateral
(provided, however, that FNB-O shall have no
obligation to make such protective advances); and
(bb) second, pari passu among the Lenders, based on their
respective pro rata shares of the funds to be
applied. Each Lender's pro rata share shall be equal
to a fraction, (x) the numerator of which shall be
the total principal loan amount then outstanding
which is owing to each such Lender under its Related
Bank Debt, and (y) the denominator of which shall be
the total principal loan amount then outstanding
which is owning to the Lenders under all Related Bank
Debt. As to any obligation of the Borrower to one or
more Lenders under an interest rate protection
contract, "principal loan amount then outstanding"
shall mean, as of the date of determination by FNB-O
of the Lenders' respective pro rata shares, the
amount, if any, of the unpaid Interest Rate
Protection Contract Amounts.
Except as specifically provided in this Section 8.2, FNB-O shall have no
obligation to repay or prepay any amount due from the Borrower to any of the
other Lenders nor shall FNB-O have any obligation to purchase all or a part of
any Note hereunder or any Note evidencing any Related Bank Debt or any advance
made by any Lenders, nor shall the Lenders have any recourse whatsoever against
FNB-O with respect to any failure of the Borrower to repay the indebtedness
referenced herein.
8.3 Liability of FNB-O. FNB-O shall not be liable to the Lenders for
any error of judgment or for any action taken or omitted to be taken by it
hereunder, except for gross negligence or willful misconduct. Without limiting
the generality of the foregoing, FNB-O, except as expressly set forth herein,
(a) may consult with legal counsel, independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (b) makes no representation or warranty with respect to,
and shall not be responsible for, the accuracy, completeness, execution,
legality, validity, legal effect or enforceability of this 1997 Term Credit
Agreement, the Notes, the Related Loan Agreements or the Related Bank Debt or
the other Operative Documents or the operative documents under any Related Bank
29
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Debt or the value or sufficiency of any Collateral given by the Borrower or the
priority of the Lenders' security interest therein or the financial condition of
the Borrower; and (c) shall not be responsible for the performance or observance
of any of the terms, covenants or conditions of the Operative Documents or the
operative documents under any Related Bank Debt on the part of the Borrower and
shall not have any duty to inspect the property (including, without limitation,
the books and records) of the Borrower.
8.4 Transfers. No Lender shall subdivide, transfer or grant a
participation in its respective Notes or notes evidencing any Related Bank Debt,
or in any advance hereunder or under any Related Bank Debt, without the prior
written consent of FNB-O which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, Broadcast Partners shall be permitted to
subdivide, transfer or grant a participation in its respective Notes to any of:
Pioneer Hi-Bred International, Inc., Farmland Industries, Inc., Illinois
Agricultural Service Company, or the majority-owned or controlled subsidiaries
or affiliates of any of them. For purposes of this Section 8.4, "Related Bank
Debt" shall not include interest rate protection agreements.
8.5 Reliance. The Lenders acknowledge that they have been advised that
none of the Notes, the notes evidencing any Related Bank Debt nor any interest
therein or related thereto has been (i) registered under the Securities Act of
1933, as amended, nor (ii) insured by the Federal Deposit Insurance Corporation.
The Lenders acknowledge that they have received from the Borrower all financial
information and other data relevant to their decision to extend credit to the
Borrower and that they have independently approved the credit quality of the
Borrower.
8.6 Relationship of Lenders. The Lenders intend for the relationships
created by this Agreement to be construed as concurrent direct loans from each
Lender respectively to the Borrower. Nothing herein shall be construed as a loan
from any Lender to FNB-O or as creating a partnership or joint venture
relationship among them.
8.7 New Lenders. In the event that new Lenders are added to this
Agreement or to the Related Loan Agreements, such Lenders shall be required to
agree to the inter-creditor provisions of this Article VIII.
8.8 Broadcast Partners. As of the closing of the Second
Amendment on July 31, 1996, Broadcast Partners was removed from this Agreement
as a party.
ARTICLE IX. MISCELLANEOUS
9.1 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties hereto with respect to the subject matter hereof and may not
be effectively amended, changed, modified or altered, except in writing executed
by all parties. Notwithstanding the foregoing, it is understood that the
purchase and sale transaction between the Borrower and Broadcast Partners is
governed by the Purchase Agreement.
9.2 Governing Law. The Operative Documents shall be governed by
and construed pursuant to the laws of the State of Nebraska.
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9.3 Notices. Until changed by written notice from one party hereto to
the other, all communications under the Operative Documents shall be in writing
and shall be hand delivered or mailed by registered mail to the parties as
follows:
If to the Borrower:
DATA TRANSMISSION NETWORK CORPORATION
Suite 200
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
If to the Lenders:
FIRST NATIONAL BANK OF OMAHA
One First National Center
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notices shall be deemed given when mailed, except that any notice by the
Borrower under Section 2.6 shall not be deemed given until received by FNB-O.
9.4 Headings. The captions and headings herein are for convenience only
and in no way define, limit or describe the scope or intent of any provisions or
sections of this Agreement.
9.5 Counterparts. This Agreement may be executed in several
counterparts and such counterparts together shall constitute one and the same
instrument.
9.6 Survival; Successors and Assigns. The covenants, agreements,
representations and warranties made herein, and in the certificates delivered
pursuant hereto, shall survive the execution and delivery to the Lenders of this
Agreement and shall continue in full force and effect so long as any Note or any
obligation to the Lenders under any of the Operative Documents is outstanding
and unpaid. Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party, and all covenants, promises and agreements by or on behalf of the
Borrower which are contained in this Agreement shall bind the successors and
assigns of the Borrower and shall inure to the benefit of the successors and
assigns of the Lenders.
9.7 Severability. If any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating
the remainder of such provision or the remaining provisions of this Agreement.
9.8 Assignment. The Borrower may not assign its rights or obligations
hereunder and any assignment in contravention of the terms hereof shall be void.
9.9 Amendments. Any amendment, modification or supplement to this
Agreement must be in writing and must be signed by the parties hereto.
IN WITNESS WHEREOF, the Borrower and the Lenders have caused this 1997
Term Credit Agreement to be executed by their duly authorized corporate officers
as of the day and year first above written.
31
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DATA TRANSMISSION NETWORK
CORPORATION
By
-------------------------------
Title:
32
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FIRST NATIONAL BANK OF OMAHA
By
-------------------------------
Title:
NOTICE: A credit Agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
--------
Borrower
33
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THE SUMITOMO BANK, LIMITED
By
-------------------------------
Title:
NOTICE: A credit Agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
--------
Borrower
34
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FIRST NATIONAL BANK, WAHOO,
NEBRASKA
By
-------------------------------
Title:
NOTICE: A credit Agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
--------
▇▇▇▇▇▇▇▇
▇▇
- ▇▇▇ -
▇▇▇ ▇▇▇▇
By
-------------------------------
Title:
NOTICE: A credit Agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
--------
Borrower
36
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NORWEST BANK NEBRASKA, N.A.
By
-------------------------------
Title:
NOTICE: A credit Agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
--------
Borrower
37
- 217 -
MERCANTILE BANK OF ST. LOUIS, N.A.
By
-------------------------------
Title:
NOTICE: A credit Agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
--------
Borrower
38
- 218 -
FIRST BANK, NATIONAL ASSOCIATION
By
-------------------------------
Title:
NOTICE: A credit Agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
--------
Borrower
39
- 219 -
BANK OF MONTREAL
By
-------------------------------
Title:
NOTICE: A credit Agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
--------
Borrower
40
- 220 -
LASALLE NATIONAL BANK
By
-------------------------------
Title:
NOTICE: A credit Agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
--------
Borrower
41
- 221 -
EXHIBIT A
TO 1997 TERM CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK CORPORATION,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
THE SUMITOMO BANK, LIMITED,
MERCANTILE BANK OF ST. LOUIS, N.A.,
FIRST BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL
and
LASALLE NATIONAL BANK
FORM OF NOTES
42
- 222 -
SECURED BUSINESS PROMISSORY NOTE
Omaha, Nebraska $
-------------------------------
May 3, 1996 December 31, 2002
(Note Date) (Maturity Date)
DATA TRANSMISSION NETWORK CORPORATION ("Maker") promises to pay
to the order of (Lender") at the offices of First National Bank of Omaha in
Omaha, Nebraska, the principal sum of . Interest on the unpaid principal balance
shall be due on the last day of each month, beginning May 31, 1996. The
principal sum shall become due and payable in seventy-two equal monthly
installments, with the first such installment due on January 31, 1997, or if
such day is not a Business Day, on the next succeeding Business Day, and
subsequent installments due on the last day of each consecutive month
thereafter, or, if such day is not a Business Day, on the next succeeding
Business Day. In any event, the total amount of all unpaid principal and accrued
interest hereunder shall be due and payable no later than December 31, 2002. All
capitalized terms not defined herein shall have the meanings set forth in that
certain 1996 Term Credit Agreement dated as of May 3, 1996 among Maker, Lender
and others (the "Agreement".)
Interest shall accrue on the principal outstanding through June 30,
1999, from time to time at the rate of % per annum; thereafter the interest rate
for the balance of the term shall be set on June 30, 1999, at two percent
(2.00%) above the yield on constant maturity Treasury Bonds with maturities of
three years, as quoted for the immediately preceding Business Day in the
applicable Release. Notwithstanding the foregoing, after an Event of Default has
occurred interest shall accrue on the entire outstanding balance of principal
and interest at a fluctuating rate equal to the Revolving Credit Rate, plus
4.00%. Interest shall be calculated on the basis of the actual number of days
outstanding and a 360-day year. Interest shall continue to accrue on the full
unpaid balance hereunder notwithstanding any permitted or unpermitted failure of
the Borrower to make a scheduled payment or the fact that a scheduled payment
day falls on a day other than a Business Day. If, any time during a Restricted
Quarter (including, without limitation, during any period in such quarter prior
to delivery of the Quarterly Compliance Certificate), the interest rate accruing
on this Note is less than seven and one-half percent (7.50%), a "Trigger Event"
shall be deemed to have occurred. Upon the occurrence of a Trigger Event, the
Maker shall be obligated to pay the following fees: (i) three-eighths of one
percent (.375%) of the outstanding principal balance of the Note as of the date
preceding the Trigger Event, which amount shall be payable promptly upon
invoicing; (ii) the same amount as computed in clause (i), payable on the
six-month anniversary of the Trigger Event; and (iii) the same amount as
computed in clause (i), payable on the twelve-month anniversary of the Trigger
Event.
Maker may prepay in full without penalty the unpaid balance hereunder,
provided that the Borrower contemporaneously prepays in full all other Notes (as
such term is defined in the Agreement), but only if such prepayment occurs on
June 30, 1999 and the Borrower has given Lender at least 30 days prior written
43
- 223 -
notice of its intention to make such prepayment. In the event of any other
prepayment (regardless of whether such prepayment occurs before or after June
30, 1999), the Borrower shall pay to Lender, at Lender's option, either: (1) the
Make-Whole Premium (as such term is defined in the Agreement) due in respect of
such prepayment; or (2) a prepayment fee equal to one and one-half percent
(1.50%) of the amount of such prepayment.
Payment of this Note and the performance of Maker's obligations under
the Agreement ("Obligations") are secured by a security interest granted to
First National Bank of Omaha, as agent for the Lenders and others ("Agent"),
under the Security Agreement in:
All of Debtor's accounts, accounts receivable, chattel paper,
documents, instruments, goods, inventory, equipment, general
intangibles, contract rights, all rights of Debtor in deposits and
advance payments made to Debtor by its customers and subscribers,
accounts due from advertisers and all ownership, proprietary,
copyright, trade secret and other intellectual property rights in and
to computer software (and specifically including, without limitation,
all such rights in DTN transmission computer software used in the
provision of the Basic DTN Subscription Service and Farm Dayta Service
to Debtor's subscribers) and all documentation, source code,
information and works of authorship pertaining thereto, all now owned
or hereafter acquired and all proceeds and products thereof; and
such additional collateral as is more specifically described in the Security
Agreement.
Maker's liability under its Obligations shall not be affected by any of
the following:
Acceptance or retention by Lender or Agent of other property
or interests as security for the Obligations, or for the liability of
any person other than a Maker with respect to the Obligations;
The release of all or any of the Collateral or other security
for any of the Obligations to any Maker;
Any release, extension, renewal, modification or compromise of
any of the Obligations or the liability of any obligor thereon; or
Failure by Lender or Agent to resort to other security or any
person liable for any of the Obligations before resorting to the
Collateral.
Neither Lender nor Agent is required to take any action whatsoever in
respect of the Collateral. Impairment or destruction of the Collateral shall not
release Maker of its liability hereunder.
Maker represents, warrants and covenants as follows:
44
- 224 -
Maker is authorized to grant to Agent a security interest in
the Collateral;
This Note, the Agreement and the Security Agreement have been
duly authorized, executed and delivered by the Maker and constitute legal, valid
and binding obligations of Maker;
This Note evidences a loan to acquire substantially all of the
assets of Broadcast Partners, a general partnership, with its principal place of
business at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇; and
Maker agrees to pay all costs of collection in connection with
this Note, the Agreement and the Security Agreement, including reasonable
attorneys' fees and legal expenses.
Upon the failure of Maker to make any payment of principal or interest
when due hereunder or the occurrence of any Event of Default, all of the
Obligations shall, at the option of Agent and without notice or demand, mature
and become immediately due and payable; and Agent shall have all rights and
remedies for default provided by the Uniform Commercial Code, any other
applicable law and/or the Obligations.
All costs and expenses incurred by Lender or Agent in enforcing its
rights under this Note or any mortgage, endorsement, surety Agreement, guaranty
relating thereto are the obligation of Maker and are immediately due and
payable. Interest shall accrue on such costs and expenses from the date of
incurrence at the rate specified herein for delinquent Note payments. Each
Maker, endorser, surety and guarantor hereby waives presentment, protest,
demand, notice of dishonor, and the defense of any statute of limitations.
Without affecting the liability of any Maker, endorser, surety or
guarantor, the holder or Agent may, without notice, renew or extend the time for
payment, accept partial payments, release or impair any Collateral or other
security for the payment of this Note or agree to ▇▇▇ any party liable on it.
Neither Lender nor Agent shall be deemed to have waived any of its
rights upon or under this Note, or under any mortgage, endorsement, surety
agreement or guaranty, unless such waivers be in writing and signed by Lender or
Agent, as the case may be. No delay or omission on the part of Lender or Agent
in exercising any right shall operate as a waiver of such right or any other
right. A waiver on any one occasion shall not be construed as a bar to or waiver
of any right on any future occasion. All rights and remedies of Lender or Agent
on liabilities or the Collateral, whether evidenced hereby or by any other
instrument or papers, shall be cumulative and may be exercised singularly or
concurrently.
Maker, if more than one, shall be jointly and severally liable
hereunder and all provisions hereof regarding the liabilities or security of
Maker shall apply to any liability or any security of any or all of them. This
45
- 225 -
Note shall be binding upon the heirs, executors, administrators, assigns or
successors of Maker; shall constitute a continuing Agreement, applying to all
future as well as existing transactions, whether or not of the character
contemplated at the date of this Note, and if all transactions between Lender
and Maker shall be at any time closed, shall be equally applicable to any new
transactions thereafter, provided that Lender's interest in the Collateral shall
be limited to the extent provided in the Security Agreement; shall benefit
Lender, its successors and assigns; and shall so continue in force
notwithstanding any change in any partnership party hereto, whether such change
occurs through death, retirement or otherwise.
All obligations of Maker hereunder shall be payable in immediately
available funds in lawful money of the United States of America at the principal
office of First National Bank of Omaha in Omaha, Nebraska or at such other
address as may be designated by Bank in writing.
This Note shall be construed according to the laws of the State of
Nebraska.
Unless the content otherwise requires, all terms used herein which are
defined in the Uniform Commercial Code shall have the meanings therein stated.
Any provision of this Note which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Executed as of this 3rd day of May, 1996.
DATA TRANSMISSION NETWORK
CORPORATION
By:
--------------------------------
Title:
-----------------------------
46
- 226 -
PROMISSORY NOTE SCHEDULE
Loan Advances and Payments of Principal
DATA TRANSMISSION NETWORK CORPORATION
REVOLVING NOTE ADVANCES AND PAYMENTS:
Amount of Unpaid
Amount Principal Paid Amount of Principal Notation
Date of Advance or Prepaid Interest Paid Balance Made By
---- ---------- --------------- ------------- --------- ---------
47
- 227 -
TERM NOTE:
Date of Conversion:
------------------------------
Amount Due at Date of Conversion:
----------------
Fixed Rate Notice Date: Fixed Rate:
----------------- ----------------%
Amount of Unpaid
Amount Principal Paid Amount of Principal Notation
Date of Payment or Prepaid Interest Paid Balance Made By
---- ---------- -------------- ------------- --------- ---------
48
- 228 -
EXHIBIT B
TO 1997 TERM CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK CORPORATION,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
THE SUMITOMO BANK, LIMITED,
MERCANTILE BANK OF ST. LOUIS, N.A.,
FIRST BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL
and
LASALLE NATIONAL BANK
OFFICER'S CERTIFICATE
49
- 229 -
COMPLIANCE CERTIFICATE
DATA TRANSMISSION NETWORK CORPORATION
First National Bank of Omaha Date
-----------------------
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
I certify that Data Transmission Network Corporation is in compliance with the
requirements set forth in the 1996 Term Credit Agreement restated as of December
27, 1996 among Data Transmission Network Corporation, First National Bank of
Omaha, First National Bank, Wahoo, Nebraska, NBD Bank, Norwest Bank Nebraska,
N.A., The Sumitomo Bank, Limited, Mercantile Bank of St.
Louis, N.A., First Bank, National Association, Bank of Montreal and LaSalle
National Bank.
The following calculations are as of (statement date) as
---------------------
required by section 5.1(d) of said Agreement:
Evaluations:
Total Indebtedness (TI): $
-----------------------
Operating Cash Flow: most recent month previous month
ending ending
----------- ---------
Net Income (loss) ----------------- ---------------
Interest Expense ----------------- ---------------
Depreciation ----------------- ---------------
Goodwill Amortization ----------------- ---------------
Deferred Income Taxes ----------------- ---------------
Non-Ordinary Non-Cash
Charges (Credits) ----------------- ---------------
Total a) ----------------- b) ---------------
Operating Cash Flow = OCF = (a+b)/2 =
------------------
Leverage Ratio (TI/OCF):
------------------
50
- 230 -
Section 2.2
. Trigger Fee: If Total Indebtedness is greater than 36 times the
Operating Cash Flow, then a one time fee is due,
paid in three installments of 3/8% of the then
outstanding principal balances, on any of Notes
which have an interest rate less than 7.5%.
Position: A Trigger Event has/has not occurred.
Section 5.3
. Net Worth: A minimum Net Worth (exclusive of subordinated
debt) of $23,500,000 plus fifty percent (50%) of
the net income (but not losses) of the Borrower
for each fiscal year, commencing with the fiscal
year beginning January 1, 1997; provided, however,
solely for purposes of determining compliance with
the provisions of this Section 5.3, "Net Worth"
shall not include subordinated debt.
Position: Minimum Net Worth (exclusive of subordinated
debt)= $ .
-------------
Net Income Year Ending Addition (50%)
---------- ----------- --------------
$ 12/31/97 $
-------------
-------------
Total Minimum Net Worth: $
-------------
Total Net Worth (exclusive of subordinated
debt) $
-------------
Section 5.4
. Indebtedness: At no time will Total Indebtedness exceed 48 x OCF
Position: (48 x OCF) - Total Indebtedness =
- =
--------- ----------- ------------
51
- 231 -
. Total At no time will Adjusted Total Indebtedness
Indebtedness exceed 60 x OCF
plus
subordinated
debt plus
guaranty
contingencies
(Adjusted
Total
Indebtedness or
ATI):
Position: Adjusted Total Indebtedness = $
--------------
(60 x OCF) - (ATI) = $
-----------------
Section 5.7
. Distributions: Neither the Borrower nor any Subsidiary shall
declare any dividends (other than dividends
payable in stock of the Borrower or dividends or
distributions from any consolidated Subsidiary) or
make any cash distribution in respect of any
shares of its capital stock or warrants of its
capital stock, without the prior written consent
of the Lenders; provided that the Borrower need
not obtain the Lenders' consent. With respect to
dividends in any one (1) year which are in the
aggregate less than 25% of the Borrower's Net
Operating Profit After Taxes on the previous four
(4) quarters, as reported to the Lenders pursuant
to Section 5.1.
. Position: Net Operating Profit
After Taxes for
last four (4) quarters =
--------------
x .25
Available for dividends
or distributions in the most
recent quarter plus the
Prior three (3) quarters =
--------------
Dividents and distributions (excluding dividends
payable solely in stock of the Borrower and
distributions from consolidated Subsidiaries)
declared or paid in the most recent quarter plus
the prior three
(3) quarters =
---------------
52
- 232 -
The Borrower [is/is not] in compliance with
Section 5.7.
Section 5.15
. Interest The ratio of OCF to Interest Expense ("IE")
Coverage: at the end of each quarter will not be less than
2.25 to 1.0 (225%).
Position: OCF = $
-------------
IE = $
-------------
OCF/IE = %
-----------
Section 5.19
. Capital The Borrower shall not make capital expenditures
Expenditures: (other than permitted earning assets specified
in Section 5.19) in any fiscal year, commencing
with the fiscal year beginning January 1, 1997,
in excess of $1,000,000
Position: Capital Expenditures this fiscal year = $
--------.
The Borrower [is/not] in compliance with Section
5.19.
Section 5.20
. Acquisitions: The Borrower shall not make acquisitions which
in the aggregate exceed $6,000,000 except certain
permitted unlimited acquisitions.
Position: Acquisitions (other than permitted unlimited
acquisitions) in the aggregate since the date
of this Agreement = $
-----------.
Principal
Acquired Place of Line of
Date Amount Company Business Business
---- ------ -------- --------- --------
The Borrower [is/is not] in compliance with
Section 5.20.
Additional Representations:
There have/have not been any sale(s) of assets which would require
prepayment of the Notes under Section 5.2.
There has/has not been:
(i) a Change of Control or a material adverse change in
management personnel as defined in Section 5.14 of the
Agreement; or
53
- 233 -
(ii) a default under Section 7.1(j) or 7.1(l) regarding a
change in ownership or control of the Company.
(iii) an indemnity claim by Broadcast Partners under
Section 7.1(m).
Name of Borrower: Data Transmission Network Corporation
Signature:
--------------------------------------
Title:
--------------------------------------
54
- 234 -
SCHEDULE A
TO 1997 TERM CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK CORPORATION,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
THE SUMITOMO BANK, LIMITED,
MERCANTILE BANK OF ST. LOUIS, N.A.,
FIRST BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL
and
LASALLE NATIONAL BANK
PERMITTED ENCUMBRANCES
Secured Party Financing Statements
Nebraska Secretary of State
---------------------------
First National Bank of Omaha 12/28/87 #401690
10/13/92 #564918 Amendment
11/13/92 #568176 Continued
First National Bank of Omaha, as agent 5/8/96 #691938 Amendment
FirsTier, Lincoln 6/24/87 #384782
First National Bank of Omaha 2/03/88 #405477 Amendment
First National Bank, Wahoo 5/28/92 #553205 Continued
NBD, Detroit 10/13/92 #564919 Amendment
2/05/93 #576038 Amendment
11/10/93 #603168 Amendment
First National Bank of Omaha, as agent 5/8/96 #691936 Amendment
FirsTier, Lincoln 2/10/88 #406144
First National Bank of Omaha 10/13/92 #564917 Amendment
First National Bank, Wahoo 1/07/93 #572981 Continued
▇▇
- ▇▇▇ -
▇▇▇, ▇▇▇▇▇▇▇ 2/05/93 #576039 Amendment
11/10/93 #603169 Amendment
First National Bank of Omaha, as agent 5/8/96 #691937 Amendment
First Bank of Minneapolis 11/25/91 #534665
(Norstan) 8/24/92 #561090 Assignment
▇▇▇▇▇▇▇ County Clerk, Nebraska
------------------------------
FirsTier, Lincoln 2/11/88 #000534
First National Bank of Omaha 10/15/92 #000534 Amendment
First National Bank, Wahoo 1/08/93 #0000054 Continued
NBD, Detroit 2/05/93 #000253 Amendment
11/17/93 #54 Amendment
First National Bank of Omaha, as agent 5/ /96 Amendment
Iowa Secretary of State
-----------------------
FirsTier, Lincoln 2/10/88 H842023
First National Bank of Omaha 10/15/92 K395184 Amendment
First National Bank, Wahoo 1/08/93 K424887 Continued
NBD, Detroit 2/08/93 K434908 Amendment
11/15/93 K503145 Amendment
First National Bank of Omaha, as agent 5/6/96 K734148 Amendment
Kansas Secretary of State
--------------------------
FirsTier, Lincoln 2/10/88 #1286572
First National Bank of Omaha 10/15/92 #1842986 Amendment
First National Bank, Wahoo 1/08/93 #1868482 Continued
NBD, Detroit 2/11/93 #1879069 Amendment
11/12/93 #1964342 Amendment
First National Bank of Omaha, as agent 7/18/96 #2265201 Amendment
Illinois Secretary of State
---------------------------
FirsTier, Lincoln 3/18/88 #2402370
First National Bank of Omaha 10/21/92 #3043202 Amendment
First National Bank, Wahoo 2/11/93 #3084199 Amendment
NBD, Detroit 2/25/93 #3089132 Continued
12/09/93 #3197498 Amendment
First National Bank of Omaha, as agent 7/9/96 #3562627 Amendment
56
- 236 -
Michigan Secretary of State
---------------------------
FirsTier, Lincoln 2/12/88 #C034473
First National Bank of Omaha 10/16/92 #C646856 Amendment
First National Bank, Wahoo 1/08/93 #C672590 Continued
NBD, Detroit 3/01/93 #C689434 Amendment
11/15/93 #C778208 Amendment
First National Bank of Omaha, as agent 7/8/96 #D128002 Amendment
Wisconsin Secretary of State
----------------------------
FirsTier, Lincoln 2/18/88 #968701
First National Bank of Omaha 10/21/92 #1309942 Amendment
First National Bank, Wahoo 01/15/93 #1326550 Continued
NBD, Detroit 2/08/93 #1331412 Amendment
11/23/93 #1393268 Amendment
First National Bank of Omaha, as agent 7/23/96 #1602740 Amendment
Indiana Secretary of State
--------------------------
FirsTier, Lincoln 2/11/88 #1454192
First National Bank of Omaha 10/21/92 #1808780 Amendment
First National Bank, Wahoo 1/11/93 #1822115 Continued
NBD, Detroit 2/08/93 #1827451 Amendment
11/12/93 #1878806 Amendment
First National Bank of Omaha, as agent 7/9/96 #2065412 Amendment
Minnesota Secretary of State
----------------------------
FirsTier, Lincoln 2/17/88 1#121648#00
First National Bank of Omaha 10/16/92 #1537269 Amendment
First National Bank, Wahoo 01/19/93 #1557397 Continued
NBD, Detroit 2/08/93 #1562125 Amendment
11/23/93 #1632156 Amendment
First National Bank of Omaha, as agent 9/5/96 #1875684 Amendment
South Dakota Secretary of State
-------------------------------
FirsTier, Lincoln 2/10/88 880410802864
First National Bank of Omaha 10/16/92 #22901003596 Amend.
57
- 237 -
First National Bank, Wahoo 1/08/93 #30081001734 Cont.
NBD, Detroit 2/09/93 #30391203308 Amend.
11/22/93 #33261003899 Amend.
First National Bank of Omaha, as agent 7/8/96 #961900902562 Amend.
Missouri Secretary of State
---------------------------
FirsTier, Lincoln 2/11/88 #1555991
First National Bank of Omaha 10/16/92 #2184193 Amendment
First National Bank, Wahoo 1/08/93 #2212473 Continued
NBD, Detroit 2/08/93 #2224113 Amendment
11/15/93 #2331876 Amendment
First National Bank of Omaha, as agent 7/8/96 #2684601 Amendment
Ohio Secretary of State
-----------------------
FirsTier, Lincoln 2/12/88 #Y00095612
First National Bank of Omaha 10/19/92 #01097336 Amendment
First National Bank, Wahoo 1/11/93 #01119343901 Cont.
NBD, Detroit 2/09/93 #02099338901 Amend.
11/12/93 #▇▇▇▇▇▇▇▇▇▇ Amendment
First National Bank of Omaha, as agent 7/9/96 #07099607117 Amendment
Kentucky Secretary of State
----------------------------
First National Bank of Omaha 11/12/93 134318
First National Bank of Omaha, as agent 7/23/96 Amendment
Pennsylvania Department of State
--------------------------------
First National Bank of Omaha 11/12/93 22571277
First National Bank of Omaha, as agent 7/8/96 25631529 Amendment
Oklahoma Secretary of State
---------------------------
First National Bank of Omaha 11/12/93 059782
First National Bank of Omaha, as agent 7/8/96 035257 Amendment
58
- 238 -
Mississippi Secretary of State
------------------------------
First National Bank of Omaha 11/12/93 0756092--
First National Bank of Omaha, as agent 7/8/96 01015782 Amendment
Colorado Secretary of State
---------------------------
First National Bank of Omaha 11/12/93 932082461
First National Bank of Omaha, as agent 7/8/96 962051575 Amendment
California Secretary of State
-----------------------------
First National Bank of Omaha 11/12/93 93229491
First National Bank of Omaha, as agent 7/5/96 96191C0067 Amendment
Washington Secretary of State
-----------------------------
First National Bank of Omaha 11/15/93 933190075
First National Bank of Omaha, as agent 7/5/96 96-187-9060 Amendment
Montana Secretary of State
--------------------------
First National Bank of Omaha 11/15/93 419540
First National Bank of Omaha, as agent 7/8/96 419540 Amendment
Arizona Secretary of State
--------------------------
First National Bank of Omaha 11/15/93 765359
First National Bank of Omaha, as agent 7/8/96 765359 Amendment
North Carolina Secretary of State
---------------------------------
First National Bank of Omaha 11/15/93 050742
First National Bank of Omaha, as agent 7/8/96 1357308 Amendment
North Dakota Secretary of State
-------------------------------
First National Bank of Omaha 11/16/93 93-380331
First National Bank of Omaha, as agent 7/8/96 96-608985 Amendment
59
- 239 -
Florida Secretary of State
--------------------------
First National Bank of Omaha 11/17/93 930000236992
First National Bank of Omaha, as agent 7/10/96 960000142090 Amendment
Texas Secretary of State
------------------------
First National Bank of Omaha 11/29/93 227591--
First National Bank of Omaha, as agent 7/8/96 96683548 Amendment
Alabama Secretary of State
--------------------------
First National Bank of Omaha, as agent 6/27/95 B-95-26462FS
7/19/96 95-26462 Amendment
Arkansas Secretary of State
---------------------------
First National Bank of Omaha, as agent 6/29/95 968722
7/10/96 968722 Amendment
New York Secretary of State
----------------------------
First National Bank of Omaha, as agent 6/26/95 130246
7/8/96 532973 Amendment
60
- 240 -
