FIFTH AMENDMENT TO 1997 REVOLVING CREDIT AGREEMENT
THIS FIFTH AMENDMENT to 1997 REVOLVING CREDIT AGREEMENT (the "Fifth
Amendment") is intended to amend the terms of the 1997 Revolving Credit
Agreement (the "Agreement") dated as of February 26, 1997, as previously
amended, among DATA TRANSMISSION NETWORK CORPORATION; FIRST NATIONAL BANK OF
OMAHA; FIRST NATIONAL BANK, WAHOO, NEBRASKA; NBD BANK, N.A.; NORWEST BANK
NEBRASKA, N.A.; THE SUMITOMO BANK, LIMITED; MERCANTILE BANK OF ST. LOUIS, N.A.;
U.S. BANK, NATIONAL ASSOCIATION (formerly known as First Bank, National
Association); BANK OF MONTREAL; LASALLE NATIONAL BANK; and NATIONSBANK, N.A.
(successor to THE BOATMEN'S NATIONAL BANK OF ST. LOUIS). All terms and
conditions of the Agreement shall remain in full force and effect except as
expressly amended herein. All capitalized terms herein shall have the meanings
prescribed in the Agreement. The Agreement shall be amended as follows:
1. The definitions in Article I of the Agreement are amended as
follows:
Revolving Credit Notes: The following sentence is added to the
end of such definition:
Solely for purposes of Section 7.2 of
this Agreement and any reference to such
Section 7.2, the Revolving Credit Notes
shall include the amounts, if any, due
to (a) FNB-O and/or the Revolving
Lenders under the Letter of Credit
Facility, and (b) Norwest in connection
with the Norwest Letters of Credit.
2. The following shall be added to the definitions in Article I of
the Agreement:
Base Revolving Credit
Facility: The amount specified in
Section 2.1 of this Agreement, which
shall include the aggregate amounts
which may be available under the
Revolving Credit Notes and the Lender
Letter of Credit Facility.
FNB-O Letter of Credit
Facility: An amount not to exceed
$500,000 at any time which FNB-O may
elect in its discretion to provide to
the Borrower and one or more of its
Subsidiaries under Section 2.11 (a)
hereof.
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FNB-O Letter(s) of Credit:Letter(s)
of Credit issued under the FNB-O Letter
of Credit Facility.
Lender Letter of Credit
Facility: The letter of credit
facility provided for in Section 2.11
(b) hereof.
Lender Letter(s) of Credit:
Letter(s) of Credit issued under the
Lender Letter of Credit Facility, the
outstanding face amount of which shall
not exceed $1,000,000 at any time.
Letter of Credit Facility:Either the
FNB-O or the Lender Letter of Credit
Facility or, if the context so requires,
both such letter of credit facilities.
Letter of Credit Fees: The Letter of
Credit Fees specified in Section 2.11
(d) of the Agreement.
Letter(s) of Credit: Either the
FNB-O Letter(s) of Credit or the Lender
Letter(s) of Credit, or if the context
so requires, both such types of letters
of credit.
Norwest Letters of Credit:The
letters of credit indicated below which
were issued by Norwest for the account
of Xxxxxxxx, Inc.: (a) letter of credit
no. S405712, in the amount of
$132,954.00 with an expiration date of
August 15, 1998; and (b) letter of
credit no. S405444, in the amount of
$130,949.00 with an expiration date of
July 30, 1999; but not letters of credit
issued in exchange, renewal, extension
or substitution of such original letters
of credit.
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3. The following shall be added as Section 2.11 of the Agreement:
2.11 Letter of Credit Facilities. In order to accommodate the
needs of the Borrower or one or more of its Subsidiaries, from time to time
FNB-O on its own behalf may, or FNB-O as the Agent of the Revolving Lenders
under this Agreement shall, upon application of the Borrower and, if requested
by FNB-O the applicable Subsidiary, issue letters of credit on the terms, and
upon satisfaction of the conditions, specified below:
(a) FNB-O Letter of Credit Facility. FNB-O may elect to
issue letters of credit solely on its own behalf ("FNB-O Letters
of Credit"); provided, however, that at the time of issuance of
such FNB-O Letters of Credit, the aggregate amount available to
be drawn on Letters of Credit issued and outstanding under this
FNB-O Letter of Credit Facility shall not exceed $500,000. The
issuance of FNB-O Letters of Credit shall not cause the Base
Revolving Credit Facility to be reduced.
(b) Lender Letter of Credit Facility. Whenever FNB-O elects
not to issue an FNB-O Letter of Credit or the aggregate amount
available to be drawn on FNB-O Letters of Credit exceeds, or upon
the issuance of a new Letter of Credit will exceed, $500,000, the
Agent on behalf of the Revolving Lenders shall issue from time to
time for the account of the Borrower or one or more of its
Subsidiaries letters of credit in the name of First National Bank
of Omaha but which are designated as Lender Letters of Credit
(the "Lender Letters of Credit"); provided, however, the Agent
shall have no obligation to issue any such Lender Letter of
Credit unless at such time the Borrower meets all the conditions
for an Advance under the Base Revolving Credit Facility and,
after such issuance, the aggregate face amount of Lender Letters
of Credit outstanding will not exceed $1,000,000 and will not
exceed the then available Base Revolving Credit Facility, as
reduced by the outstanding principal amount of the Converted
Notes and the Revolving Credit Notes, as more specifically set
forth in this Agreement. The Revolving Lenders shall be obligated
to fund pro rata according to their respective pro rata
percentages shown in Section 2.1 of this Agreement any draws on
such Lender Letters of Credit and shall be entitled to share pro
rata in the Letter of Credit Fees and reimbursement amounts
received in connection with such Lender Letters of Credit. The
sum of (i) amounts drawn under such Lender Letters of Credit
which have not been reimbursed by the Borrower, and (ii) the
amounts available to be drawn under outstanding Lender Letters of
Credit shall operate to reduce the Base Revolving Credit Facility
by such sum.
(c) Letter of Credit Documents, Fees. Prior to the issuance
by FNB-O of any Letters of Credit, the Borrower and, if requested
by FNB-O, the applicable Subsidiary, shall execute and deliver to
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FNB-O an application and continuing letter of credit agreement,
such agreements to be in the forms attached hereto as Exhibit C
to this Fifth Amendment, as such forms may be amended from time
to time for general use in connection with letters of credit
issued by FNB-O.
(d) Letter of Credit Fees. In addition to all costs incurred
by FNB-O in the issuance and enforcement of the Letters of Credit
which are to be reimbursed by the Borrower in accordance with the
application and continuing letter of credit agreement executed in
connection with each Letter of Credit, the Borrower shall pay to
FNB-O (on its own behalf as to FNB-O Letters of Credit and as
Agent as to Lender Letters of Credit) a letter of credit fee (the
"Letter of Credit Fee") equal to one percent (1%) per annum of
the undrawn amount of such Letter of Credit, such fee to be paid
quarterly in arrears based on the average amount outstanding
during such quarter; provided, however, that at any time that an
Event of Default has occurred and is continuing under the
Agreement, such fee shall be equal to five percent (5%) per
annum). Interest shall accrue on amounts drawn under any Letter
of Credit, until such amount is reimbursed, at the then current
rate for amounts outstanding under the Revolving Note and, for
any period that such draw remains unreimbursed more than two
Business Days after such draw, at the Default Rate. In addition,
the Borrower shall pay such other administrative fees, including
a fee for opening the Letter of Credit, as are agreed in writing
between FNB-O and the Borrower. Amounts received by the Agent for
opening a Lender Letter of Credit or as administrative fees other
than the Letter of Credit remain the property of the Agent and
shall not be shared pro rata with the Revolving Lenders.
(e) Security. Amounts due in connection with the Letters of
Credit and the Norwest Letters of Credit are secured by the
Collateral pledged under the Security Agreement and any security
agreement given by a Subsidiary in favor of the Lenders. In
addition, the Agent shall have the right to require additional
collateral, including cash collateral equal to 100% of the
aggregate of the amounts available to be drawn under the Letters
of Credit, upon the occurrence of an Event of Default under the
Agreement.
4. The Drawing Certificate attached to the Agreement as Exhibit B shall
be amended as shown on Exhibit B to this Fifth Amendment.
5. This Fifth Amendment shall not affect and there remain outstanding
from the Borrower to the Banks, the Existing Term Notes and the Related Bank
Debt.
6. This Fifth Amendment may be executed in several counterparts and
such counterparts together shall constitute one and the same instrument.
Except as expressly agreed herein, all terms of the Agreement shall
remain in full force and effect.
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IN WITNESS WHEREOF, the undersigned have executed this FIFTH AMENDMENT
TO 1997 REVOLVING CREDIT AGREEMENT dated as of July 10, 1998.
DATA TRANSMISSION NETWORK
CORPORATION
By /s/ Xxxxx X. Xxxxxx
-----------------------
Title: Vice President, CFO
and Secretary
FIRST NATIONAL BANK OF OMAHA
By /s/ Xxxxx X. Xxxxxx
------------------------
Title: Vice President
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
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THE SUMITOMO BANK, LIMITED
By /s/Xxxxx X. Xxxxx
------------------------
Title: Senior Vice President
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
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FIRST NATIONAL BANK, WAHOO,
NEBRASKA
By/s/ Xxxxxxxxx X. Xxxxx
--------------------------
Title: Second Vice President
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:
Xxxxxxxx
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XXX BANK
By /s/ Xxxxxx X. Xxxxx
------------------------
Title:First Vice President
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:
Xxxxxxxx
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XXXXXXX XXXX NEBRASKA, N.A.
By /s/ Xxxxx X. Xxxxx
----------------------------------
Title:Vice President
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
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LASALLE NATIONAL BANK, a national
banking association
By/s/ Xxx Xxxxxx
--------------------------------
Title:Assistant Vice President
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
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MERCANTILE BANK OF
ST. LOUIS, N.A.
By/s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------
Title:Vice President
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
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U.S. BANK, NATIONAL
ASSOCIATION
By /s/ Xxxx Xxxxxx
-------------------------------
Title: Vice President
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
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NATIONSBANK, N.A.
By/s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: Vice President
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
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BANK OF MONTREAL,
Chicago Branch
By/s/ Xxxxx Xxxxxxx
-------------------------------
Title: Director
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
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EXHIBIT B
TO 1997 REVOLVING CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
NATIONSBANK, N.A.,
MERCANTILE BANK OF ST. LOUIS, N.A.,
U.S. BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL
AND
LASALLE NATIONAL BANK,
DRAWING CERTIFICATE
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DRAWING CERTIFICATE
DATA TRANSMISSION NETWORK CORPORATION
To induce the First National Bank of Omaha, First National Bank, Wahoo,
Nebraska, NBD Bank, Norwest Bank Nebraska, N.A., LaSalle National Bank,
Nationsbank, N.A., Mercantile Bank of St. Louis, N.A., U.S. Bank, National
Association, and Bank of Montreal (the "Revolving Lenders") to make an advance
under the 1997 Revolving Credit Agreement (the "Agreement") dated as of February
26, 1997, between the undersigned (the "Borrower"), Nationsbank, N.A. as the
successor in interest to The Boatmen's National Bank of St. Louis ("Boatmen's),
and the Revolving Lenders (as to Boatmen's and the Revolving Lenders together,
(the "Banks"), the Borrower hereby certifies to the Banks that its Operating
Cash Flow (as defined in the Agreement) as represented below is true and correct
and that there is no default under the aforementioned Agreement, or on any other
liability of the Borrower to the Banks.
All information as of: Date
a) Maximum Revolving Credit Facility $
b) Principal on Converted Notes $___________
c) Acquisition Notes, Existing Term Notes,
and Related Bank Debt Outstanding $
d) Principal on Revolving Credit Notes $
e) Unreimbursed amounts drawn under Lender Letters
of Credit $
f) Amount available to be drawn under outstanding
Lender Letters of Credit
g) ADVANCE REQUEST ( not to exceed line a - line b
- line d - line e - line f) $
h) Total Proposed Bank Debt
(line b + line c + line d + line e + line f + line g) $
i) Most recent month's operating cash flow $
j) Prior month's operating cash flow $
k) Operating Cash Flow
(average of line i and line j) $
l) Total Indebtedness $
m) Leverage Ratio (line l divided by line m), not to exceed
36 $
Name of Borrower: Data Transmission Network Corporation
Signature:
Title:
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EXHIBIT C
TO 1997 REVOLVING CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
NATIONSBANK, N.A.,
MERCANTILE BANK OF ST. LOUIS, N.A.,
U.S. BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL
AND
LASALLE NATIONAL BANK,
FORMS OF APPLICATION AND CONTINUING LETTER OF CREDIT AGREEMENT
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