1998 REVOLVING CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK CORPORATION,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
THE FIRST NATIONAL BANK OF CHICAGO,
NORWEST BANK NEBRASKA, N.A.,
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
MERCANTILE BANK OF ST. LOUIS, N.A.,
U.S. BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL,
LASALLE NATIONAL BANK
and
NATIONAL BANK OF CANADA
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TABLE OF CONTENTS
I. DEFINITIONS 2
II. REVOLVING FACILITY 10
2.1 Revolving Credit 10
2.2 Revolving Credit Fees 11
2.3 Interest on Revolving Credit 11
2.4 Conversion 12
2.5 Interest on Converted Notes 12
2.6 Payments 14
2.7 Prepayments 14
2.8 Security 14
2.9 Existing Term Notes 14
2.10 Related Bank Debt 15
2.11 Letter of Credit Facilities 15
III. REPRESENTATIONS AND WARRANTIES 16
3.1 Corporate Existence 16
3.2 Corporate Authority 16
3.3 Validity of Agreements 17
3.4 Litigation 17
3.5 Governmental Approvals 17
3.6 Defaults Under Other Documents 17
3.7 Judgments 17
3.8 Compliance with Laws 17
3.9 Taxes. 17
3.10 Collateral 18
3.11 Pension Benefits. 18
3.12 Margin Regulations 18
3.13 Financial Condition 18
4.1 Financial Reports 18
4.2 Corporate Structure and Assets 20
4.3 Net Worth 20
4.4 Indebtedness 20
4.5 Use of Proceeds 21
4.6 Notice of Default 21
4.7 Distributions 22
4.8 Compliance with Law and Regulations 22
4.9 Maintenance of Property; Accounting; Corporate Form; Taxes;
Insurance 22
4.10 Inspection of Properties and Books 23
4.11 Guaranties 23
4.12 Collateral 23
4.13 Name; Location 23
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4.14 Notice of Change in Ownership or Management 23
4.15 Interest Coverage 24
4.16 Subordinated Debt 24
4.17 Subsidiaries 24
4.18 Amendments to Purchase Agreement 24
4.19 Capital Expenditures 24
4.20 Acquisitions 25
V. CONDITIONS PRECEDENT 25
5.1 Closing Conditions 25
VI. DEFAULTS AND REMEDIES 25
6.1 Events of Default 26
6.2 Remedies 28
VII. INTER-CREDITOR AGREEMENTS 28
7.1 FNB-O as Servicer 28
7.2 Application of Payments 29
7.3 Liability of FNB-O 30
7.4 Transfers 31
7.5 Reliance 31
7.6 Relationship of Lenders 31
7.7 New Lenders 31
VIII. MISCELLANEOUS 31
8.1 Entire Agreement 31
8.2 Governing Law 31
8.3 Notices 31
8.4 Headings 32
8.5 Counterparts 32
8.6 Survival; Successors and Assigns 32
8.7 Severability 32
8.8 Assignment 32
8.9 Amendments 32
8.10 Consent to Form of Security Agreement, Term Agreement 32
SCHEDULE I: Subsidiaries
EXHIBIT A: Form of Note
EXHIBIT B: Drawing Certificate
EXHIBIT C: Letter of Credit Forms
EXHIBIT D: Compliance Certificate
SCHEDULE A: Permitted Encumbrances
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1998 REVOLVING CREDIT AGREEMENT
This 1998 REVOLVING CREDIT AGREEMENT (the "Agreement") is entered into as of
the 7th day of December, 1998, among DATA TRANSMISSION NETWORK CORPORATION, a
Delaware corporation having its principal place of business at Suite 200, 0000
Xxxx Xxxxx Xxxx, Xxxxx, Xxxxxxxx 00000 (the "Borrower"), FIRST NATIONAL BANK OF
OMAHA, a national banking association having its principal place of business at
Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 ("FNB-O"), FIRST NATIONAL BANK,
WAHOO, NEBRASKA, a national banking association having its principal place of
business at Xxxxx, Xxxxxxxx 00000 ("FNB-W"), THE FIRST NATIONAL BANK OF CHICAGO,
a national banking association having its principal place of business at Xxx
Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0000 ("First of Chicago"), NORWEST
BANK NEBRASKA, N.A., a national banking association having its principal place
of business at 00xx xxx Xxxxxx Xxxxxxx, Xxxxx, Xxxxxxxx 00000 ("Norwest"),
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, being represented by its
office at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Dresdner"), MERCANTILE BANK
OF ST. LOUIS, N.A., a national banking association having its principal place of
business at One Mercantile Center, 7th and Xxxxxxxxxx Xxxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000 ("Mercantile"), U.S. BANK, NATIONAL ASSOCIATION, a national
banking association having its principal place of business at 00xx xxx X
Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("U.S. Bank"), BANK OF MONTREAL, a Canadian
bank represented by its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Montreal"), LASALLE NATIONAL BANK, a national banking association being
represented by its offices at One Metropolitan Square, 000 Xxxxx Xxxxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000 ("LaSalle"); and NATIONAL BANK OF CANADA, a Canadian bank
being represented by its office at 0000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000 ("NBC").
WITNESSETH:
WHEREAS, the Borrower and certain of the Lenders (as such term is
hereinafter defined) are parties to a 1997 Term Credit Agreement dated as of
February 26, 1997, which has been amended, (the "1997 Term Credit Agreement"),
the proceeds of which were used to acquire substantially all of the assets of
Broadcast Partners, a general partnership having its principal place of business
in Des Moines, Iowa;
WHEREAS, the Borrower and certain of the Lenders are parties to a 1997
Revolving Credit Agreement dated as of February 26, 1997, which has been amended
(the "1997 Revolving Credit Agreement"), which 1997 Revolving Credit Agreement
provided a revolving credit facility for general corporate purposes;
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WHEREAS, the Borrower desires to increase the amount of the revolving credit
facility which was the subject of the 1997 Revolving Credit Agreement; and
WHEREAS, the parties do not intend for this 1998 Revolving 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, but the
parties do intend that this 1998 Revolving Credit Agreement shall supersede and
replace the terms of the above-referenced 1997 Revolving Credit Agreement;
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:
Acquisition
Notes: The Notes issued by the Borrower to the Term Lenders
under the Term Agreement dated as of May 3, 1996, and all
extensions, renewals and substitutions, if any, of or for
the same.
Advance: Any advance of funds to the Borrower by the Revolving
Lenders or any of them under the revolving credit
facility provided in this Agreement.
Agreement: This 1998 Revolving Credit Agreement dated as of December
7, 1998, between the Borrower and certain Lenders, as
amended or restated from time to time.
Base 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.
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.
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Boatmen's: The Boatmen's National Bank of St. Louis, a national
banking association having its principal place of
business at Xxx Xxxxxxx'x Xxxxx, 000 Xxxxxx Xxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000-0000 (now known as NationsBank,
N.A.), and its successors and assigns.
Borrower: Data Transmission Network Corporation, a Delaware
corporation having its principal place of business at
Xxxxx 000, 0000 Xxxx Xxxxx Xxxx, Xxxxx, Xxxxxxxx 00000.
Broadcast
Partners:Broadcast Partners, a general partnership having its
current principal place of business at 00000 Xxxxxx
Xxxxxx, Xxx Xxxxxx, Xxxx 00000.
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.
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Conversion: This term shall have the meaning set forth in Section
2.4.
Converted
Notes: Any note evidencing Conversion under or of all or a
portion of the Revolving Credit Notes (or any such
similar notes issued to any additional Revolving Lenders
hereinafter added to this Agreement), and all extensions,
renewals and substitutions of or for the foregoing.
Default Rate: The floating interest rate announced from time to
time by FNB-O as its "National Base Rate" plus 4.0%. 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.
Dresdner Dresdner Bank AG, New York and Grand Cayman
Branches, being represented by its office at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and its successors and
assigns.
Existing
Term Notes: That certain promissory note from the Borrower to
FNB-O, FirsTier, FNB-W, NBD, Norwest and Boatmen's (now
NationsBank, N.A.) dated as of February 27, 1995; and
those certain promissory notes from the Borrower to
FNB-O, FNB-W, NBD, Norwest, Sumitomo, Mercantile, First
Bank, Montreal, and LaSalle dated as of March 31, 1997,
and March 16, 1998, and, as to each, all extensions,
renewals, and substitutions of or for the foregoing.
FNB-O: First National Bank of Omaha, a national banking
association having its principal place of business at Xxx
Xxxxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, and its
successors and assigns.
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.
FNB-O Letter(s)
of Credit: Letter(s) of Credit issued under the FNB-O Letter
of Credit Facility.
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FNB-W: First National Bank, Wahoo, Nebraska, a national banking
association having its principal place of business at
Xxxxx, Xxxxxxxx 00000, and its successors and assigns.
First Bank: First Bank, National Association, a national
banking association having its principal place of
business at 13th and X Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000,
and its successors and assigns (it being acknowledged
that First Bank is the successor in interest to
FirsTier.)
First of
Chicago: The First National Bank of Chicago, a national banking
association having its principal place of business at Xxx
Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, and
its successors and assigns.
FirsTier FirsTier Bank, National Association, having its principal
place of business at 13th and M Streets, Lincoln,
Nebraska 68508 (predecessor to U.S. Bank).
Fixed Rate
Notice: This term shall have the meaning set forth in Section
2.5.
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 one or more
Lenders 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 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
Lender Letter of
Credit Facility: The letter of credit facility provided for in
Section 2.11 (b) hereof.
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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.
Lenders: FNB-O, FNB-W, First of Chicago, Norwest, LaSalle,
Dresdner, Mercantile, U.S. Bank, Montreal, and NBC, in
their capacity as Revolving Lenders under this Agreement,
the Term Lenders, lenders of the Related Bank Debt,
NationsBank, formerly Boatmen's (as to Articles VI and
VII and as to Section 8/6 only), and the Existing Term
Notes , and such additional lenders as may be added
hereto or thereto from time to 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 this 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.
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 Lender in good faith and on a reasonable basis
and certified to the Borrower in writing, to compensate
the Lender for any loss (including any lost yield), cost
or expense incurred by the Lender (i) in liquidating or
redeploying deposits or other funds acquired by the
Lender to fund or maintain the loan prepaid and (ii) in
unwinding, amending, canceling or otherwise modifying or
terminating any match funding, swap or other arrangement
entered into by the Lender 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 Xxxxxxxxxx Xxxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000, and its successors and assigns.
Montreal: Bank of Montreal, a Canadian bank being represented by
its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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NBC: National Bank of Canada, a Canadian bank being
represented by its offices at 0000 00xx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxx 00000.
NBD: NBD Bank, a bank organized under the laws of the State of
Michigan and having its principal place of business at
000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and its
successors and assigns.
NationsBank: NationsBank, N.A., a national banking association having
an office at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xx. Xxxxx,
Xxxxxxxx 00000-0000 (successor to The Boatmen's National
Bank of St. Louis), and its successors and assigns.
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 principles; 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
determined 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.
Norwest: Norwest Bank Nebraska, N.A., a national banking
association having its principal place of business at
20th and Xxxxxx Xxxxxxx, Xxxxx, Xxxxxxxx 00000, and its
successors and assigns.
Norwest Letter
of Credit: The letter of credit no. S405444, in the amount
of $130,949.00 with an expiration date of July 30, 1999,
which was issued by Norwest for the account of Xxxxxxxx,
Inc.; but not letters of credit issued in exchange,
renewal, extension or substitution of such original
letter of credit.
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Notes: (i) The Revolving Credit Notes, the Converted Notes, the
Existing Term Notes, the Acquisition Notes, and such
additional similar notes as may be issued to certain
additional Lenders, and all extensions, renewals, and
substitutions of or for the foregoing; and (ii) notes
and, in the case of interest rate protection contracts,
such contracts evidencing the obligations of the Borrower
to any Lender under the Related Bank Debt.
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 Agreement, the Notes, the Security Agreement, the
financing statements regarding the Collateral and the
documents and certificates delivered pursuant to Section
5.1.
Principal
Loan Amount: As to the Revolving Credit Notes, the aggregate
principal amount of all unpaid Advances outstanding at
any time (not including the unpaid balance under the
Related Bank Debt, Existing Term Notes or any Acquisition
Notes, or any amounts converted to a term loan
hereunder), and as to Converted Notes hereunder, the
unpaid principal amount thereof.
Purchase
Agreement: The Asset Purchase and Sale Agreement dated as of May 3,
1996, between the Borrower and Broadcast Partners, as
amended from time to time.
Quarterly
Compliance
Certificate: The certificate delivered to the Lenders by the Borrower
pursuant to Section 4.1(d).
Related
Bank Debt: The aggregate unpaid balance of all indebtedness,
now or hereafter existing (including future advances)
under certain interest rate protection contracts entered
into from time to time by the Borrower with one or more
of the Lenders.
Release: The Federal Reserve Statistical Release.
Restricted
Quarter: This term shall have the meaning set forth in Section 2.5
hereof.
Revolving
Credit Notes: The Notes issued to the Revolving Lenders pursuant
to Section 2.1, and such additional similar notes as may
be issued to Revolving Lenders hereinafter added to this
Agreement by mutual written agreement of the parties, and
all extensions, renewals, and substitutions of or for the
same. Such notes shall be in the form of Exhibit A
hereto. 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 Letter of Credit.
Revolving
Credit Rate: The Base Rate minus the applicable margin as
determined pursuant to Section 2.3.
Revolving
Lenders: FNB-O, FNB-W, First of Chicago, Norwest, LaSalle,
Dresdner, Mercantile, U.S. Bank, Montreal and NBC, and
such additional Revolving Lenders as may be added as
Revolving Lenders under Section 2.1 hereto from time to
time by mutual written agreement of the parties.
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Security
Agreement: The 1998 Security Agreement dated as of the date hereof,
between the Borrower and FNB-O, as agent for the Lenders,
(which amends and restates the 1997 Security Agreement
dated as of February 26, 1997, as amended by the First
Amendment to 1997 Security Agreement dated as of May 15,
1998), and as further amended or restated from time to
time.
Subscribers: Those customers of the Borrower which have subscribed for
the Borrower's "Basic DTN Subscription Service" and/or
"Farm Dayta Service" and/or other similar services and
who are not in default of their payment or other
obligations with respect thereto.
Subsidiary: 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 000 Xxxxx Xxxxxxxx, Xxxxx
0000, Xx. Xxxxx, Xxxxxxxx 00000, and acting through its
Chicago branch, and its successors and assigns.
Term
Agreement: The 1998 Term Credit Agreement dated as of the date
hereof, among the Borrower and certain Lenders specified
therein, (which amends and restates the 1997 Term Credit
Agreement dated as of February 26, 1997, as amended by
the First Amendment to 1997 Term Credit Agreement dated
as of February 1, 1998; and the Second Amendment to 1997
Term Credit Agreement dated as of May 15, 1998), and as
further amended or restated from time to time.
Term
Lenders: "Lenders" to the Borrower as such term is defined in the
Term Agreement.
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) regardless of the maturity thereof. 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.
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Trigger
Event: This term shall have the meaning set forth in Section 2.5
hereof.
U.S. Bank: X.X.Xxxx, National Association, formerly known as
First Bank, a national banking association having its
principal place of business at 13th and X Xxxxxxx,
Xxxxxxx, Xxxxxxxx 00000, and its successors and assigns.
All accounting terms not otherwise defined herein shall have the meaning
ordinarily applied under generally accepted accounting principles.
II. REVOLVING FACILITY
2.1 Revolving Credit. Until the earlier of June 30, 2000, or the date on
which the loan hereunder is converted to a term loan in accordance with Section
2.4, the Revolving Lenders severally agree to advance funds for general
corporate purposes not to exceed $80,800,000 (the "Base Revolving Credit
Facility") to the Borrower on a revolving credit basis (amounts outstanding
under the Acquisition Notes, Existing Term Notes and Related Bank Debt shall not
be counted against such Base Revolving Credit Facility limit). Such Advances
shall be made on a pro rata basis by the Revolving Lenders, based on the
following maximum advance limits and applicable percentages for each Revolving
Lender: (i) as to FNB-O, $16,000,000 (19.80%); (ii) as to FNB-W, $325,000
(.40%); (iii) as to First of Chicago, $2,015,000 (2.49%); (iv) as to Norwest,
$6,500,000 (8.04%); (v) as to LaSalle, $8,320,000 (10.30%); (vi) as to Dresdner,
$8,515,000 (10.54%); (vii) as to Mercantile, $11,245,000 (13.92%), (viii) as to
U.S. Bank, $8,515,000 (10.54%); (ix) as to Montreal, $6,565,000 (8.13%); and (x)
as to NBC, $12,800,000 (15.84%). The Borrower shall not be entitled to any
Advance hereunder if, after the making of such Advance, the Leverage Ratio would
exceed thirty-six (36), determined at the time of the Advance. Nor shall the
Borrower be entitled to any further Advances hereunder after the occurrence of a
material adverse change in its management personnel, as described in Section
4.14(b), or after the occurrence of any Event of Default with respect to the
Borrower. Advances shall be made, on the terms and conditions of this Agreement,
upon the Borrower's request. Requests shall be made by 12:00 noon Omaha time on
the Business Day prior to the requested date of the Advance. Requests shall be
made by presentation to FNB-O of a drawing certificate in the form of Exhibit B.
The Borrower's obligation to make payments of principal and interest on the
foregoing revolving credit indebtedness shall be further evidenced by the
Revolving Credit Notes.
2.2. The Borrower shall pay to the Revolving Lenders a commitment fee equal
to the product of the per annum unused commitment fee percentage shown below
times the unadvanced portion of the Maximum Revolving Credit Facility described
above:
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Leverage Ratio Unused Commitment Fee Percentage
Greater than 42 .375%
Greater than 24 but not in
excess of 42 .250%
24 or less .125%
Such fee shall be paid to FNB-O quarterly (calendar quarters) in arrears and
based on the average unused portion of the revolving credit commitment during
the applicable quarter and the Leverage Ratio in effect on the last day of the
month preceding such quarter. FNB-O shall distribute to each Revolving Lender
its pro rata share of such fee based on the maximum advance limits set forth
above. Furthermore, the Borrower will pay to FNB-O an agenting fee equal to
$40,000 annually, payable quarterly in arrears.
2.3 Interest on Revolving Credit. Until the earlier of June 30, 2000, or the
date on which the revolving credit loan hereunder is converted to a term loan,
interest shall accrue on the Principal Loan Amount outstanding from time to time
at a variable rate, which shall fluctuate on a monthly basis, equal to the Base
Rate minus a margin as determined below. The margin shall be adjusted quarterly
after receipt of the Borrower's Quarterly Compliance Certificate. Adjustments
shall be retroactive to the beginning of the current quarter.
Leverage Ratio Margin Below Base Rate
Greater than 42 .25%
Greater than 36 but not more
than 42 .50%
Greater than 30 but not more
than 36 .75%
Greater than 24 but not more
than 30 1.00%
Greater than 18 but not more
than 24 1.25%
18 or less 1.375%
The Base Rate minus the applicable margin as determined above is hereinafter
referred to as the "Revolving Credit Rate." Changes in the Base Rate shall be
effective on the first day of each month, based on the Base Rate in effect as of
such day. Interest shall be due upon the rendering of each monthly invoice
therefor by FNB-O. Notwithstanding anything to the contrary elsewhere herein,
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after an Event of Default has occurred interest shall accrue on the entire
outstanding balance of principal and interest on all indebtedness hereunder at a
fluctuating rate equal to the Default Rate.
2.4 Conversion. Upon the earlier of: (i) June 30, 2000; or (ii) the
Borrower's giving notice of its election to convert the revolving credit loan
hereunder, or any portion thereof, to a term loan, the revolving credit loan
described above (or applicable portion thereof) shall be deemed converted to a
term loan (hereinafter referred to as "Conversion"). Any such term loans shall
be evidenced by notes (the "Converted Notes") separate from the initial
Revolving Credit Notes. Upon the issuance of Converted Notes, the Revolving
Credit Facility will be reduced by the principal amount of such Converted Notes
(and shall be increased to the extent permitted in Section 2.1(b) hereof), and
no further Advances shall be made by the Revolving Lenders on the converted
amount. The then outstanding Principal Loan Amount of each respective Converted
Note shall become due and payable in forty-eight (48) equal installments of
principal, with the first such installment due on the last day of the month
following Conversion, 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. In any event, the total amount of all unpaid
principal and accrued interest hereunder shall be due and payable no later than
June 30, 2004.
2.5 Interest on Converted Notes. After Conversion, interest shall accrue on
the Principal Loan Amount outstanding on the respective Converted Note from time
to time at a variable rate, which shall fluctuate on a monthly basis, which is
equal to the Revolving Credit Rate plus one quarter of one percent (.25%). For
purposes of computing such variable rate, changes in the Base Rate shall be
effective on the first day of each month based on the Base Rate in effect on
such day. Notwithstanding anything in the foregoing to the contrary, after
Conversion, the Borrower may elect to have a fixed interest rate apply to the
outstanding Principal Loan Amount converted and outstanding after the date of
giving notice of such fixed rate election (the "Fixed Rate Notice"). Such fixed
rate shall be the greater of:
(a) the Revolving Credit Rate in effect on the date of the notice1,
plus three-eighths of one percent (.375%), or
(b) the average of the yields on constant maturity Treasury Bonds with
maturities of three (3) years and five (5) years, as quoted in the
immediately preceding monthly Release for the month preceding such Release,
plus the incremental percentage shown below:
Leverage Ratio1 Incremental %
Greater than 36 2.25%
Greater than 24 but not in
excess of 36 2.00%
24 or less 1.75%
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Any election of a fixed rate by the Borrower shall be final and irrevocable.
Interest shall be due each month concurrently with the Borrower's principal
payment. Notwithstanding anything to the contrary elsewhere herein, after an
Event of Default has occurred interest shall accrue on the entire outstanding
balance of principal and interest on all indebtedness hereunder at a fluctuating
rate equal to the Default Rate. All interest due under this Agreement 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 of all
indebtedness 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 the Borrower's most recent
Quarterly Compliance Certificate shows that, as of the end of the prior quarter,
the Leverage Ratio was at such date more than thirty-six (36), 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 Existing Term Note or Converted Note is less than seven and one-half
percent (7.50%) per annum, a "Trigger Event" shall be deemed to have occurred.
Upon the occurrence of a Trigger Event, the Borrower shall be obligated to pay
the following fees: (i) three-eighths of one percent (.375%) of the outstanding
principal balance as of the date preceding the Trigger Event of each Existing
Term Note or Converted Note which accrues interest at less than seven and
one-half percent (7.50%) per annum, which amount shall be payable promptly upon
invoicing by FNB-O; (ii) the same amount as computed in clause (i), payable on
the six (6) month anniversary of the Trigger Event; and (iii) the same amount as
computed in clause (i), payable on the twelve (12) month anniversary of the
Trigger Event.
2.6 Payments. All obligations of the Borrower under the Related Bank Debt
(other than obligations under any interest rate protection contract), Revolving
Credit Notes and Converted Notes and under 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. In the event that a payment
day is not a Business Day, the payment shall be due on the next succeeding
Business Day.
2.7 Prepayments. The Borrower may at any time prepay the Principal Loan
Amount outstanding under the Revolving Credit Notes or any of the Converted
Notes if the Borrower has given the Revolving Lenders at least two (2) Business
Days prior written notice of its intention to make such prepayment. Any such
prepayment may be made without penalty except for Converted Notes as to which
interest is accruing at a fixed rate in accordance with Section 2.5, in which
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event a prepayment penalty shall be due to each Revolving Lender, at each
Revolving Lender's option, either: (1) the Make-Whole Premium due to such
Revolving Lender in respect of such prepayment; or (2) such Revolving Lender's
applicable prepayment fee as set forth below. The applicable prepayment fee for
any Converted Note shall be: (i) if the notice electing fixed interest was given
within twelve (12) months of Conversion, the fee shall be one and one-half
percent (1.50%) of the amount of such prepayment; (ii) if the notice electing
fixed interest was given after twelve (12) months of Conversion but within
twenty-four (24) months of Conversion, the fee shall be three-fourths of one
percent (.75%) of the amount of such prepayment; (iii) if the notice electing
fixed interest was given after twenty-four (24) months of Conversion but within
thirty-six (36) months of Conversion, the fee shall be three-tenths of one
percent (.30%) of the amount of such prepayment. The applicable prepayment fee
for any Existing Term Note shall be as specified in such Existing Term Note.
2.8 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 on the Notes shall be secured by a
first security interest in the Collateral, as more specifically described in the
Security Agreement.
2.9 Existing Term Notes. The Borrower's obligations under the Existing Term
Notes shall continue in full force and effect in accordance with the terms
thereof. Such notes shall be deemed amended to include this 1998 Revolving
Credit Agreement within the definition of Obligations in such notes, it being
understood that this 1998 Revolving Credit Agreement, rather than the 1997
Revolving Credit Agreement, shall be controlling with respect to defaults,
covenants and all other relevant matters arising under the Existing Term Notes
and the Notes executed and delivered in connection with this 1998 Revolving
Credit Agreement. The Existing Term Notes shall continue to be secured by the
security interest provided in the Security Agreement.
2.10 Related Bank Debt. Nothing herein shall be deemed to alter or amend
the Borrower's obligations under 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.
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
17
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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 FNB-O an application and continuing
letter of credit agreement, such agreements to be in the forms attached hereto
as Exhibit C to this 1998 Revolving Credit Agreement, 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 Letter 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.
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III. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that as of the date hereof and as of
the date of each and every request for an Advance hereunder, the following are
and shall be true and correct:
3.1 Corporate Existence. It is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and each
Subsidiary is a corporation duly organized, validly existing and in good
standing in its state of incorporation as shown on Schedule I, and it and each
of its Subsidiaries is 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 the date of this
Agreement, the Borrower has no Subsidiaries other than those shown on Schedule
I.
3.2 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 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.
3.3 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).
3.4 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.
3.5 Governmental Approvals. The execution, delivery and performance by the
Borrower of the Operative Documents 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.
19
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3.6 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.
3.7 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.
3.8 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.
3.9 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.
3.10 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, 0000 Xxxx
Xxxxx Xxxx, Xxxxx, Xxxxxxxx 00000. The Borrower also keeps certain of its
records regarding the Collateral at 00000 Xxxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000.
3.11 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.
3.12 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
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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.
3.13 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.
IV. COVENANTS
The Borrower hereby covenants that:
4.1 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, a 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 4.3, 4.4, 4.7, 4.9(b),
4.9(d), 4.11, 4.19, or 4.20; 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
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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 the Lenders a certificate of the
chief financial officer of the Borrower in the form of Exhibit D, 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.
(e) The Borrower shall provide the Lenders with such other
financial reports and statements as the Lenders may reasonably request.
4.2 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
22
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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.
4.3 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 4.3, "Net
Worth" shall not include any subordinated debt.
4.4 Indebtedness
(a) The Borrower shall not at any time permit the Leverage Ratio
to exceed forty-eight (48).
(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.
4.5 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.
4.6 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;
23
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(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;
(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.
4.7 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 the 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 4.1; 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).
4.8 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.
4.9 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.
24
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(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.
(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 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.
4.10 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.
4.11 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 no 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.
4.12 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.
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Subject to Section 4.4(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, 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.
4.13 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.
4.14 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.
4.15 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 2.5 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.
4.16 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.
4.17 Subsidiaries. The Borrower shall give prompt written notice to the
Lenders of the Borrower's intent to acquire, or the Borrower's acquisition of,
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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 FNBO, as agent for the Lenders, 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 as to compliance with this section.
4.18 Amendments to Purchase Agreement. The Borrower shall not amend the
Purchase Agreement without the prior written consent of the Lenders.
4.19 Capital Expenditures. The Borrower shall not incur in any fiscal year,
commencing with the fiscal year beginning January 1, 1998, capital expenditures,
determined in accordance with generally accepted accounting principles, of more
than $2,000,000; provided, however, that capital expenditures for (a) equipment
to be used by Subscribers of the Borrower, and (b) telecommunication equipment,
computer equipment, software, and software consulting shall not be counted for
purposes of this annual limitation.
4.20 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 Revolving Lenders; provided, however, that the Borrower shall be
permitted to make on a cumulative basis from and after July 1, 1998, such
acquisitions (excluding the acquisition of A-T Financial Information, Inc.
directly or through Asset Growth Corporation) in an amount not to exceed Twenty
Million Dollars ($20,000,000) in the aggregate without the consent of the
Revolving Lenders if:
(a) such acquisitions are in or from entities which:
(i) are in the business of electronically communicating
time-sensitive information to their customers;
(ii) have their principal place of business in the United
States or Canada; and
(iii) except for Weather Services Corporation, 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; and
(b) the Borrower or any Subsidiary is not, and immediately after
making such acquisition, will not be in default under any covenant or
provisions of this Agreement (including, without limitation, the covenants
and provisions pertaining to minimum net worth and limitations on
indebtedness); and
(c) except for the acquisition of A-T Financial Information, Inc.
directly or through Asset Growth Corporation, no one acquisition exceeds
Ten Million Dollars ($10,000,000).
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V. CONDITIONS PRECEDENT
6.1 Events of Default. 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, and the perfection and priority of the security
interest in the Collateral granted to the Lenders), such opinion to be
satisfactory in form and substance to counsel to FNB-O;
(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; and
(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.
VI. DEFAULTS AND REMEDIES
6.1 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.
(d) A failure of the Borrower or any Subsidiary to comply with any
requirement or restriction applicable to such entity and contained in
Sections 4.1, 4.2, 4.3, 4.4, 4.7, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.19,
or 4.20 of this Agreement.
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(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 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
29
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(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 6.1(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 6.1(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 Existing Term Note
or the Related Bank Debt 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 or any Subsidiary is not at any time after
September 30, 1999, in compliance with Year 2000 requirements and such
failure creates a material adverse effect on the ability of the Borrower to
carry out its business.
6.2 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 Revolving
Credit Notes, the Existing Term Notes, the Related Bank Debt, the Acquisition
Notes, and any similar indebtedness), the entire unpaid principal amount under
the Notes, 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, the Notes, the Term Agreement, and the
Related Bank Debt (and the operative documents with respect thereto), including,
without limitation, under the Security Agreement. For purposes of this Article
VI, the term Lenders includes NationsBank, formerly Boatmen's. 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 Notes, the Term
Agreement, the Related Bank Debt (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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VII. INTER-CREDITOR AGREEMENTS
7.1 FNB-L as Servicer. FNB-O will act as sole servicer of the loans
evidenced by the Notes (other than in connection with interest rate protection
contracts). For purposes of this Article VII, the term Lenders includes
NationsBank, formerly Boatmen's and the term Event of Default means any Event of
Default hereunder, under one or more of the Notes, or under the Term Agreement
or the 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
(excluding the Notes) and the operative documents in connection with the Term
Agreement and the Related Bank Debt; (ii) receive requests for Advances from the
Borrower, promptly transmit the same to the Revolving Lenders and make such
Advances on behalf of the Revolving Lenders (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 7.2; (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, the Notes, the Term Agreement or the
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 and
any similar indebtedness) 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 respective Notes shall be required for: (i) any
reduction or compromise of the principal loan amount of such Notes, 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%) of net book value of fixed assets of the Borrower; and (iv) any
amendment of Sections 7.1 or 7.2 hereof. A Revolving Lender's commitment
hereunder may not be increased without the consent of such Revolving Lender, it
being understood, however, that increases in the total revolving credit facility
hereunder may be made with the consent of the holders of more than two-thirds of
the outstanding aggregate total outstanding obligation of the Borrower to the
Revolving Lenders, so long as such increase does not result in the increase of
any non-consenting Revolving Lender's commitment hereunder.
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7.2 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 Notes
and fees due to the Lenders;
(b) second, to make payments due but unpaid under any of the other
Notes; 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 7.2.
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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 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 Notes, and (y) the denominator of which shall be the
total principal loan amount then outstanding which is owing to the Lenders
under all Notes. As to any Note which represents an 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 7.2, 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 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.
7.3 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 1998 Revolving Credit
Agreement, the Notes, or the other Operative Documents or the operative
documents under the Term Agreement or the Related Bank 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, the Existing Term
Notes, 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.
33
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7.4 Transfers. No Lender shall subdivide, transfer or grant a participation
in its respective Notes or in any Advance hereunder without the prior written
consent of FNB-O which consent shall not be unreasonably withheld. For purposes
of this Section 7.4, "Notes" shall not include interest rate protection
contracts.
7.5 Reliance. The Lenders acknowledge that they have been advised that none
of the Notes 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.
7.6 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.
7.7 New Lenders. In the event that new Lenders are added to this Agreement,
the Term Agreement or the Related Bank Debt, such Lenders shall be required to
agree to the inter-creditor provisions of this Article VII.
VIII. MISCELLANEOUS
8.1 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.
8.2 Governing Law. The Operative Documents shall be governed by and
construed pursuant to the laws of the State of Nebraska.
8.3 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
0000 Xxxx Xxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
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If to the Lenders:
FIRST NATIONAL BANK OF OMAHA
One First National Center
Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
Notices shall be deemed given when mailed, except that any notice by the
Borrower under Sections 2.4 and 2.5 shall not be deemed given until received by
FNB-O.
8.4 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.
8.5 Counterparts. This Agreement may be executed in several counterparts
and such counterparts together shall constitute one and the same instrument.
8.6 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.
8.7 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.
8.8 Assignment. The Borrower may not assign its rights or obligations
hereunder and any assignment in contravention of the terms hereof shall be void.
8.9 Amendments. Any amendment, modification or supplement to this Agreement
must be in writing and must be signed by the requisite parties hereto.
8.10 Consent to Form of Security Agreement, Term Agreement. The parties
hereto expressly approve the form of the Term Agreement and the Security
Agreement, both amended and restated as of the date hereof.
IN WITNESS WHEREOF, the Borrower, Boatmen's and the Revolving Lenders have
caused this 1998 Revolving Credit Agreement to be executed by their duly
authorized corporate officers as of the day and year first above written.
35
- 568 -
DATA TRANSMISSION NETWORK
CORPORATION
By /s/ Xxxxx X. Xxxxxx
Title:VP, CFO and Secretary
36
- 569 -
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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DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
By /s/ Xxxxxxx X. Xxxxxxx
Title:Vice President
By /s/ Xxxxx Xxxxxxxx
Title: Assistant Treasurer
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 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:
Borrower
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- 572 -
THE FIRST NATIONAL BANK OF CHICAGO
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
00
- 000 -
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
43
- 576 -
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
44
- 577 -
NATIONSBANK, N.A. (Successor to The Boatmen's National
Bank of St. Louis)
By/s/ Xxxxx Xxxxxxxx
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
45
- 578 -
BANK OF MONTREAL, a Canadian bank
By /s/ Xxxxxxx Xxxxxxxxx
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
46
- 579 -
NATIONAL BANK OF CANADA, a Canadian bank
By /s/ Xxxxx X. 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
47
- 580 -
SCHEDULE I
TO 1998 REVOLVING CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
THE FIRST NATIONAL BANK OF CHICAGO,
NORWEST BANK NEBRASKA, N.A.,
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
MERCANTILE BANK OF ST. LOUIS, N.A.,
U.S. BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL,
LASALLE NATIONAL BANK AND
NATIONAL BANK OF CANADA
Subsidiary State of Incorporation Shares % of Ownership
National Datamax, Inc. California 873,300 100%
Xxxxxxxx, Inc. Minnesota 155 5/12 100%
DTN Acquisition, Inc. Nebraska 100 100%
DTN Market Commuications Nebraska 100 100%
Group, Inc.
DTN Merger Co. Massachusetts 100 100%
Paragon Software, Inc.* Illinois 1,000 100%
*Owned by DTN Acquisition, Inc.
48
- 581 -
EXHIBIT A
TO 1998 REVOLVING CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
THE FIRST NATIONAL BANK OF CHICAGO,
NORWEST BANK NEBRASKA, N.A.,
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
MERCANTILE BANK OF ST. LOUIS, N.A.,
U.S. BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL,
LASALLE NATIONAL BANK,
NATIONSBANK, N.A.
AND
NATIONAL BANK OF CANADA
FORM OF NOTES
49
- 582 -
SECURED BUSINESS PROMISSORY NOTE
Omaha, Nebraska $
, 19 June 30, 2000
---------------------- ---- -------------
(Note Date) (Maturity Date)
REVOLVING NOTE TERMS
On or before June 30, 2000, DATA TRANSMISSION NETWORK CORPORATION ("Maker")
promises to pay to the order of [REVOLVING LENDER] ("Lender") the principal sum
hereof, which shall be the lesser of Dollars, or so much thereof as may have
been advanced by Lender, either directly under this Note or as an advance
pursuant to the 1998 Revolving Credit Agreement dated as of December 7, 1998, as
amended from time to time (the "Agreement") among Maker and Lender, First
National Bank of Omaha, First National Bank, Wahoo, Nebraska, The First National
Bank of Chicago, Norwest Bank Nebraska, N.A., LaSalle National Bank, Dresdner
Bank AG, New York and Grand Cayman Branches, Mercantile Bank of St. Louis, N.A.,
Bank of Montreal, U.S. Bank, National Association, and National Bank of Canada
(collectively, the "Lenders"). All capitalized terms not defined herein shall
have their respective meanings as set forth in the Agreement.
Interest shall accrue on the principal sum hereof from and including the
Note Date above to the earlier of the Maturity Date or the date of Conversion
(as such term is defined hereafter) at a variable rate, which shall fluctuate on
a monthly basis, equal to the rate announced from time to time by FNB-O as its
"National Base Rate" minus a margin as determined below. The margin shall be
adjusted quarterly after receipt of Maker's Quarterly Compliance Certificate (as
defined in the Agreement). Adjustments shall be retroactive to the beginning of
the current quarter.
(a) If the Quarterly Compliance Certificate shows that, as of the
end of the prior quarter, the Leverage Ratio was greater than 42, the
margin for the current quarter (meaning the quarter in which the
certificate is required to be delivered) shall be .25%.
(b) If the Quarterly Compliance Certificate shows that, as of the
end of the prior quarter, the Leverage Ratio was greater than 36 but equal
to or less than 42, the margin for the current quarter shall be .50%.
(c) If the Quarterly Compliance Certificate shows that, as of the
end of the prior quarter, the Leverage Ratio was greater than 30 but equal
to or less than 36, the margin for the current quarter shall be .75%.
50
- 583 -
(d) If the Quarterly Compliance Certificate shows that, as of the
end of the prior quarter, the Leverage Ratio was greater than 24 but equal
to or less than 30, the margin for the current quarter shall be 1.00%.
(e) If the Quarterly Compliance Certificate shows that, as of the
end of the prior quarter, the Leverage Ratio was greater than 18 but equal
to or less than 24, the margin for the current quarter shall be 1.25%.
(f) If the Quarterly Compliance Certificate shows that, as of the
end of the prior quarter, the Leverage Ratio was equal to or less than 18,
the margin for the current quarter shall be 1.375%.
The Base Rate minus the applicable margin as determined above is hereinafter
referred to as the "Revolving Credit Rate." Changes in the Base Rate shall be
effective on the first day of each month, based on the Base Rate in effect as of
such day. Interest shall be due upon the rendering of each monthly invoice
therefor by FNB-O.
TERM NOTE TERMS
Upon the earlier of: (i) June 30, 2000; or (ii) Maker's giving notice of
its election to convert the revolving credit loan evidenced by this Note, or any
portion thereof, to a term loan, the revolving loan referenced above (or
applicable portion thereof) shall be deemed converted to a term loan (the
"Conversion"). Any such term loan shall be evidenced by notes (the "Converted
Notes") separate from the initial Revolving Credit Notes. Upon the issuance of
Converted Notes, the Revolving Credit Facility shall be reduced by the principal
amount of such Converted Notes (and shall be increased to the extent permitted
in Section 2.1(b) of the Agreement) and no further Advances shall be made by the
Revolving Lenders on the converted amount. The then outstanding principal
hereunder shall become due and payable in forty-eight equal installments of
principal, with the first such installment due on the last day of the month
following Conversion, or, if such day is not a Business Day, on the next
succeeding Business Day, subsequent installments due on the last day of each
consecutive month thereafter. In any event, the total amount of all unpaid
principal and accrued interest hereunder shall be due and payable no later than
June 30, 2004.
After Conversion, interest shall accrue on the principal outstanding from
time to time at a variable rate, which shall fluctuate on a monthly basis, which
is equal to the Revolving Credit Rate plus .25%. For purposes of computing such
variable rate, changes in the Base Rate shall be effective on the first day of
each month based on the Base Rate in effect on such day. Notwithstanding
anything in the foregoing to the contrary, after Conversion, Maker may elect to
have a fixed interest rate apply to the outstanding Principal Loan Amount
converted and outstanding after the date of giving notice of such fixed rate
election (the "Fixed Rate Notice"). Such fixed rate shall be equal to the
greater of:
51
- 584 -
(a) the Revolving Credit Rate in effect on the date of the
notice2, plus .375%, or
(b) the average of the yields on constant maturity Treasury Bonds
with maturities of three years and five years, as quoted in the immediately
preceding monthly Federal Reserve Statistical Release (the "Release") plus
the following incremental percentage determined based upon the Leverage
Ratio3 as of the last day of the preceding month: (x) if the Leverage Ratio
is greater than 36, the incremental percentage shall be 2.25%; (y) if the
Leverage Ratio is greater than 24 but not in excess of 36, the incremental
percentage shall be 2.00%; and (z) if the Leverage Ratio is 24 or less, the
incremental percentage should be 1.75%;
Any election of a fixed rate by Maker shall be final and irrevocable. Interest
shall be due each month concurrently with the Maker's principal payment.
Notwithstanding anything to the contrary elsewhere herein, 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 Default Rate. 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 Maker to make
a scheduled payment or the fact that a scheduled payment day falls on a day
other than a Business Day. If Maker's most recent Quarterly Compliance
Certificate shows that, as of the end of the prior quarter, the Leverage Ratio
was in excess of thirty-six (36) 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 Existing Term Note (as defined in the Agreement) or Converted Note is less
than 7.50% per annum, a "Trigger Event" shall be deemed to have occurred. Upon
the occurrence of a Trigger Event, Maker shall be obligated to pay the following
fees: (i) .375% of the outstanding principal balance as of the date preceding
the Trigger Event of each Existing Term Note or Converted Note which accrues
interest at less than seven and one-half percent (7.50%) per annum 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.
52
- 585 -
Maker may at any time prepay in whole or in part the Principal Loan Amount
outstanding under this Revolving Credit Note or a Converted Note if the Maker
has given the Revolving Lenders at least two (2) business days prior written
notice of its intention to make such prepayment. Any such prepayment may be made
without penalty except for a Converted Note as to which interest is accrued at a
fixed rate in accordance with clause (a) or (b) above, in which event a
prepayment penalty shall be due to the Lender, at Lender's option, either: (1)
the Make-Whole Premium due in respect of such prepayment; or (2) the applicable
prepayment fee as set forth below. The applicable prepayment fee for any
Converted Note shall be: (i) if the notice electing fixed interest was given
within twelve (12) months of Conversion, the fee shall be 1.50% of the amount of
such prepayment; (ii) if the notice electing fixed interest was given after
twelve (12) months of Conversion, but within twenty-four (24) months of
Conversion, the fee shall be .75% of the amount of such prepayment; and (iii) if
the notice electing fixed interest was given after twenty- four (24) months of
Conversion, but within thirty-six (36) months of Conversion, the fee shall be
.30% of the amount of such prepayment.
GENERAL TERMS
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 Maker's accounts, accounts receivable, chattel paper, documents,
instruments, goods, inventory, equipment, general intangibles, contract
rights, all rights of Maker in deposits and advance payments made to Maker
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 Maker'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;
53
- 586 -
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:
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 for business or agricultural purposes;
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 xxx 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
54
- 587 -
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 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.
This Note is given in substitution of that certain Secured Business
Promissory Note dated _____________, ____ the original principal amount of
$____________. This Note shall not affect, and there remains outstanding from
the Maker to the Lender the Related Bank Debt and the Existing Term Notes (as
such terms are defined in the Agreement), and, as to each, all extensions,
renewals, and substitutions of or for the foregoing.
Executed as of this _____ day of _____________, _____.
55
- 588 -
DATA TRANSMISSION NETWORK
CORPORATION
By:
Title:
56
- 589 -
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
57
- 590 -
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 Advance or Prepaid Interest Paid Balance Made By
58
- 591 -
EXHIBIT B
TO 1998 REVOLVING CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
THE FIRST NATIONAL BANK OF CHICAGO,
NORWEST BANK NEBRASKA, N.A.,
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
MERCANTILE BANK OF ST. LOUIS, N.A.,
U.S. BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL,
LASALLE NATIONAL BANK,
AND
NATIONAL BANK OF CANADA
DRAWING CERTIFICATE
59
- 592 -
DRAWING CERTIFICATE
DATA TRANSMISSION NETWORK CORPORATION
To induce the First National Bank of Omaha, First National Bank, Wahoo,
Nebraska, The First National Bank of Chicago, Norwest Bank Nebraska, N.A.,
LaSalle National Bank, Dresdner Bank AG, New York and Grand Cayman Branches,
Mercantile Bank of St. Louis, N.A., U.S. Bank, National Association, Bank of
Montreal, and National Bank of Canada (the "Revolving Lenders") to make an
advance under the 1998 Revolving Credit Agreement (the "Agreement") dated as of
December 7, 1998, between the undersigned (the "Borrower"), and the Revolving
Lenders (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:
60
- 593 -
EXHIBIT C
TO 1998 REVOLVING CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
THE FIRST NATIONAL BANK OF CHICAGO,
NORWEST BANK NEBRASKA, N.A.,
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
MERCANTILE BANK OF ST. LOUIS, N.A.,
U.S. BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL,
LASALLE NATIONAL BANK
AND
NATIONAL BANK OF CANADA
FORMS OF APPLICATION AND CONTINUING LETTER OF CREDIT AGREEMENT
61
- 594 -
EXHIBIT D
TO 1998 REVOLVING CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
THE FIRST NATIONAL BANK OF CHICAGO,
NORWEST BANK NEBRASKA, N.A.,
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
MERCANTILE BANK OF ST. LOUIS, N.A.,
U.S. BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL,
LASALLE NATIONAL BANK
AND
NATIONAL BANK OF CANADA
OFFICER'S CERTIFICATE
62
- 595 -
COMPLIANCE CERTIFICATE
DATA TRANSMISSION NETWORK CORPORATION
First National Bank of Omaha Date
Attn: Xxxxx Xxxxxx
00xx & Xxxxx Xxxxxxx
Xxxxx, Xxxxxxxx 00000
I certify that Data Transmission Network Corporation is in compliance with the
requirements set forth in the 1998 Revolving Credit Agreement (the "Agreement")
dated as of December 7, 1998, between First National Bank of Omaha, First
National Bank, Wahoo, Nebraska, The First National Bank of Chicago, Norwest Bank
Nebraska, N.A., LaSalle National Bank, Dresdner Bank AG, New York and Grand
Cayman Branches, Mercantile Bank of St. Louis, N.A., U.S. Bank, National
Association, and National Bank of Canada, and Data Transmission Network
Corporation.
The following calculations are as of _________ (statement date) as required by
Section 4.1(d) of said Agreement:
Evaluations:
Total Indebtedness (TI):
Operating Cash Flow: most recent month previous month
ending _______ ending ______
Net Income (loss)
Interest Expense
Depreciation
Amortization
Deferred Income
Taxes
Non-Ordinary
Non-Cash
Charges (Credits)
Total a) b)
Operating Cash Flow = OCF = (a+b)/2 =
Leverage Ratio (TI/OCF):
63
- 596 -
Section 2.3
Pricing: If the Leverage Ratio is greater than 42 then the margin is
.25%. If the Leverage Ratio is greater than 36 but equal to or less
than 42 then the margin is .50%. If the Leverage Ratio is greater
than 30 but equal to or less than 36 then the margin is .75%. If the
Leverage Ratio is greater than 24 but equal to or less than 30 then
the margin is 1.00%. If the Leverage Ratio is greater than 18 but
equal to or less than 24 then the margin is 1.25%. If the Leverage
Ratio is equal to or less than 18 then the margin is 1.375%.
Position: The Revolving Credit Rate is the Base Rate minus _________
Section 2.5
Trigger
Fee: If Total Indebtedness is more than 36 times Operating Cash
Flow, then a one time fee, paid in three installments of 3/8% of the
then outstanding principal balances, on any of the Existing Term
Notes, Acquisition Notes or Converted Notes which have an interest
rate less than 7.5% per annum is due.
Position: A Trigger Event has/has not occurred.
Section 4.3
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 any subordinated debt.
Minimum Net Worth (exclusive of subordinated debt)= $23,500,000.
Net Income Year ending Addition (50%)
$____________ 12/31/97 $___________
Total Minimum Net
Worth $
Position:
Total Net Worth (exclusive of subordinated debt) = $_____________
64
- 597 -
Section 4.4
Indebtedness: At no time will the Leverage Ratio exceed 48.
Position: Leverage Ratio =
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 4.7
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 in the previous four (4) quarters,
as reported to the Lenders pursuant to Section 4.1.
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 = ______________
Dividends and distributions
(excluding dividends payable
solely in stock of the Borrower and distributions
65
- 598 -
from consolidated Subsidiaries) declared or paid
in the most recent quarter plus the prior three
(3) quarters =
---------------
The Borrower [is/is not] in compliance with
Section 4.7.
Section 4.15
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 4.19
Capital Expenditures:
The Borrower shall not make capital expenditures (other than
permitted earning assets specified in Section 4.19) in any
fiscal year, commencing with the fiscal year beginning January
1, 1998, in excess of $1,000,000.
Position: Capital Expenditures (other than permitted earning
assets specified in Section 4.19) this fiscal year =
$_____________
The Borrower [is/is not] in compliance with Section 4.19.
Section 4.20
Acquisitions:
The Borrower shall not make acquisitions which in the aggregate
exceed $20,000,000 and in any one instance exceed $10,000,000
except certain permitted unlimited acquisitions.
Position: Acquisitions (other than permitted unlimited acquisitions) in
the aggregate since the date of the Agreement = _________.
Date Amount Acquired Company
Permitted Unlimited Acquisition:
Date Amount Acquired Principal Line
Company Place of Of
Business Business
The Borrower [is/is not] in compliance with Section 4.20.
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Additional Representations:
There have/have not been any sale(s) of assets which would require prepayment of
the Notes under Section 4.2.
There has/has not been:
(i) a Change of Control or a material adverse change in management
personnel as defined in Section 4.14 of the Agreement; or
(ii) a default under Section 6.1(j) or 6.1(l) regarding a change in
ownership or control of the Company.
Name of Borrower: Data Transmission Network Corporation
Signature:
Title:
67
- 600 -
SCHEDULE A
TO 1998 REVOLVING CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK CORPORATION,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
THE FIRST NATIONAL BANK OF CHICAGO,
NORWEST BANK NEBRASKA, N.A.,
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
MERCANTILE BANK OF ST. LOUIS, N.A.,
U.S. BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL
LASALLE NATIONAL BANK
AND
NATIONAL BANK OF CANADA
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
NBD, Detroit 2/05/93 #576039 Amendment
11/10/93 #603169 Amendment
First National Bank of Omaha, as agent 5/8/96 #691937 Amendment
68
- 601 -
First Bank of Minneapolis 11/25/91 #534665
(Norstan) 8/24/92 #561090 Assignment
Xxxxxxx 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
Michigan Secretary of State
FirsTier, Lincoln 2/12/88 #C034473
First National Bank of Omaha 10/16/92 #C646856 Amendment
69
- 602 -
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.
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.
70
- 603 -
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 #0000000000 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
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
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
71
- 604 -
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
--------
1Determined based on the Leverage Ratio calculated on the Total Indebtedness and
Operating Cash Flow as of the last day of the preceding month, adjusted to show
any increases in the Leverage Ratio as a result of additional Total Indebtedness
incurred (reduced by any principal payments on such Total Indebtedness) during
the quarter in which the rate is being fixed as described above.
2 Determined based on the Leverage Ratio calculated on the Total Indebtedness
and Operating Cash Flow as of the last day of the preceding month, adjusted to
show any increases in the Leverage Ratio as a result of additional Total
Indebtedness incurred (reduced by any principal payments on such Total
Indebtedness) during the quarter in which the rate is being fixed as described
above.
72
- 605 -
