SECOND AMENDMENT TO 1996 REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO 1996 REVOLVING CREDIT AGREEMENT (the "Second
Amendment"), dated as of December 27, 1996, is intended to amend the terms of
the 1996 Revolving Credit Agreement (the "Agreement") dated as of June 28, 1996,
among DATA TRANSMISSION NETWORK CORPORATION, FIRST NATIONAL BANK OF OMAHA, FIRST
NATIONAL BANK, WAHOO, NEBRASKA, NBD BANK, NORWEST BANK NEBRASKA, N.A.,
AGAMERICA, FCB (assignee of FARM CREDIT SERVICES OF THE MIDLANDS, PCA), THE
SUMITOMO BANK, LIMITED, MERCANTILE BANK OF ST. LOUIS, N.A., FIRST BANK, NATIONAL
ASSOCIATION, and THE BOATMEN'S NATIONAL BANK OF ST. LOUIS, as amended by the
First Amendment to 1996 Revolving Credit Agreement (the "First Amendment") dated
as of July 31, 1996. The parties to this Second Amendment shall include the
original parties to the Agreement, BANK OF MONTREAL, a Canadian bank represented
by its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 ("Montreal"), and
LASALLE NATIONAL BANK, a national banking association being represented by its
office at One Metropolitan Square, 000 Xxxxx Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx
00000. All terms and conditions of the Agreement shall remain in full force and
effect except as expressly amended herein. All capitalized terms herein shall
have their respective meanings set forth in the Agreement. The Agreement shall
be amended as set forth below.
Section 1. The following definitions of "Article I: Definitions"
of the Agreement shall be amended to read as follows:
Farm Credit: AgAmerica, FCB, a farm credit bank doingb
business at 000 Xxxxx 00xx Xxxxxx, Xxxxx,
Xxxxxxxx 00000-0000, as assignee of Farm
Credit Services of the Midlands, P.C.A.
Notes: (i) The Revolving Credit Notes, the Convert-
ed Notes and 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.
Related Bank Debt: The aggregate unpaid balance of all indebt-
edness, now or hereafter existing (including
future advances) under (i) the Related Loan
Agreement, including, without limitation,
the amounts outstanding under those certain
promissory notes from the Borrower to FNB-O,
FirsTier and FNB-W dated as of October 13,
1992, and December 7, 1992, and all
extensions, renewals, and substitutions of
or for the foregoing; and (ii) certain
interest rate protection contracts entered
into from time to time by the Borrower with
one or more of the Lenders.
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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 but such term shall not include
subordinated debt of the Borrower, as such
term is defined in the definition of Net
Worth up to $15,000,000 if such subordinated
debt is existing on May 3, 1996. For
purposes of this definition of "Total
Indebtedness, "indebtedness under an
interest rate protection agreement shall
mean the amount if any, at the time of
determination, of the unpaid Interest Rate
Protection Contract Amounts; provided,
however, that solely for purposes of voting
under this Agreement by the Lenders, "Total
Indebtedness" will not include such Interest
Rate Protection Contract Amounts.
Section 2. The following definitions shall be added to Article I
of the Agreement:
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.
Section 3. On the date of this Second Amendment, the Borrower
shall prepay in full the principal amount of, and
accrued interest through such date on, the Revolving
Credit Note in the principal amount of $9,603,600
payable to Farm Credit, which Revolving Credit Note
has been assigned to AgAmerica. Simultaneously, upon
(a) receipt by the Borrower of the $9,603,600
Revolving Credit Note payable to Farm Credit, marked
"canceled and paid in full" by AgAmerica, and (b) the
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payment of $7,469,462 in immediately available funds
from LaSalle to FNB-O for the account of the
Borrower, the Borrower shall issue to LaSalle a
Revolving Credit Note in the principal amount of
$9,603,600, such Revolving Credit Note to be
substantially in the form attached to this Second
Amendment as Attachment A. Thereafter, (i) LaSalle
shall be deemed to be a "Lender" and a "Revolving
Lender" under the Agreement and AgAmerica shall cease
to be a "Lender" and a "Revolving Lender" thereunder;
and (ii) the reference to Farm Credit in clause (v)
of Section 2.1 of the Agreement shall be deemed to be
a reference to LaSalle.
Section 4. Section 2.6 of the Agreement shall be amended to read
as follows:
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.
Section 5. (a) The first sentence of Section 7.1 of the
Agreement shall be amended to read as
follows:
FNB-O will act as sole servicer of the loans
evidenced by the Notes (other than in connection with
interest rate protection contracts).
(b) The penultimate sentence of Section 7.1
shall be amended to read as follows:
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.
Section 6. Subsection 7.2(bb) of the Agreement shall be amended
to read as follows:
(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
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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.
Section 7. The following sentence shall be added to the end of
Section 7.4 of the Agreement:
For purposes of this Section 7.4, "Notes" shall not
include interest rate protection contracts.
Section 8. The Borrower hereby restates for the benefit of the
Lenders the representations and warranties contained
in Article III of the Agreement and affirms that such
representations and warranties are true and correct
as of the date of this Second Amendment.
Notwithstanding the foregoing, representations of the
Borrower as to UCC filings in respect of the
Collateral are hereby amended to reflect such
additional filings as shall have been made in favor
of the Lenders.
Section 9. The Lenders hereby acknowledge and consent to
the Third Amendment to the 1996 Term Credit Agreement
dated as of the date hereof among the parties herein
(not including Boatmen's).
Section 10. This Second Amendment may be executed in several
counterparts and such counterparts together shall
constitute one and the same instrument.
Section 11. This Second Amendment shall be effective upon the
execution and delivery thereof by the parties hereto.
References in the Notes to the Loan Agreement shall
be deemed amended to refer to the Loan Agreement as
amended by the First Amendment and this Second
Amendment.
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IN WITNESS WHEREOF, the undersigned have executed this SECOND AMENDMENT
TO 1996 REVOLVING CREDIT AGREEMENT dated as of December 27, 1996.
DATA TRANSMISSION NETWORK
CORPORATION
By /s/ Xxxxx Xxxxxx
------------------------
Title: Vice President, CFO,
Secretary and Treasurer
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FIRST NATIONAL BANK OF OMAHA
By /s/ XX 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: /s/ BL
------------------------
Borrower
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THE SUMITOMO BANK, LIMITED
By /s/ Xxxxxx X. Xxxxxx
------------------------
Title: Vice President
By /s/ X.X. Xxxxxxx
------------------------
Title: Vice President & Manager
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: /s/ BL
------------------------
Borrower
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FIRST NATIONAL BANK,
WAHOO, NEBRASKA
By Xxxxxxxx Xxxxx
------------------------
Title: 2nd 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: /s/ BL
------------------------
Borrower
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NBD BANK
By /s/ X.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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NORWEST BANK NEBRASKA, N.A.
By
Title:
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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AGAMERICA, FCB
(assignee of FARM CREDIT
SERVICES OF THE MIDLANDS, PCA)
By
Title:
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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MERCANTILE BANK OF ST. LOUIS, N.A.
By
Title:
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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FIRST BANK, NATIONAL ASSOCIATION
By
Title:
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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BOATMEN'S NATIONAL BANK OF ST. LOUIS
By
Title:
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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BANK OF MONTREAL
By
Title:
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
3796v2
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LASALLE NATIONAL BANK
By
Title:
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
3796
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