1996 REVOLVING CREDIT AGREEMENT
This 1996 Revolving Credit Agreement (the "Agreement") is entered into
as of the 28th day of June, 1996, 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"), 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 ("NBD"), NORWEST BANK NEBRASKA,
N.A., a national banking association having its principal place of business at
00xx xxx Xxxxxx Xxxxxxx, Xxxxx, Xxxxxxxx 00000 ("Norwest"), FARM CREDIT SERVICES
OF THE MIDLANDS, PCA, a production credit association ("Farm Credit") in care of
AGAMERICA, FCB, a farm credit bank doing business at 000 Xxxxx 00xx Xxxxxx,
Xxxxx, Xxxxxxxx 00000-0000, 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 ("Sumitomo"), 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"), FIRST BANK, NATIONAL ASSOCIATION (successor in
interest to FirsTier Bank, National Association), a national banking association
having its principal place of business at 00xx xxx X Xxxxxxx, Xxxxxxx, Xxxxxxxx
00000 ("First Bank") and THE BOATMEN'S NATIONAL BANK OF ST. LOUIS, a national
banking association having its principal place of business at One Boatmen's
Plaza, 000 Xxxxxx Xxxxxx, X.X. Xxx 000, Xx. Xxxxx, Xxxxxxxx 00000-0000
("Boatmen's").
WITNESSETH:
WHEREAS, the Borrower and certain of the Lenders (as such term is
hereinafter defined) are parties to a 1996 Term Credit Agreement dated as of May
3, 1996 (the "1996 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 1995
Restated Loan Agreement dated as of June 29, 1995, which 1995 Restated Loan
Agreement provided a revolving credit facility for general corporate purposes;
WHEREAS, the Borrower desires to increase and renew the revolving
credit facility which was the subject of the 1995 Restated Loan Agreement, and
to add certain additional Lenders as Lenders thereunder; and
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WHEREAS, the parties do not intend for this 1996 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 1996 Revolving Credit Agreement shall supersede
and replace the terms of the above-referenced 1995 Restated Loan 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, 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 1996 Revolving Credit Agreement dated as of June 28,
1996, between the Borrower and certain Lenders.
Base Rate: The floating interest rate announced from time to time by
FNB-O as its "National Base Rate," minus .75%. 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.
Boatmen's: The Boatmen's National Bank of St. Louis, a national banking
association having its principal place of business at One
Boatmen's Plaza, 800 Market Street, St. Louis, Missouri 63166-
0236, 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.
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Business
Day: Any day other than a Saturday, Sunday or a legal holiday on
which banks in the State of Nebraska are not open for
business.
Change of
Control: (a) At any time when any of the equity securities of the
Borrower shall be registered under Section 12 of the
Securities Exchange Act of 1934 as amended from time to
time (the "Exchange Act"), (i) any person, entity or
"group" (within the meaning of Section 13(d)(3) of the
Exchange Act) (other than any person which is a management
employee, or any such "group" which consists entirely of
management employees, of the Borrower) being or becoming
the beneficial owner, directly or indirectly, of more than
50% of the voting stock of the Borrower, or (ii) a majority
of the members of the Borrower's board of directors (the
"Board") consisting of persons other than Continuing
Directors (as hereinafter defined); and (b) at any other
time, less than 50% of the voting stock of the Borrower
being owned beneficially, directly or indirectly, by
employees of the Borrower or its subsidiaries. As used
herein, the term "Continuing Director" means any member of
the Board on June 29, 1995 and any other member of the
Board who shall be recommended or elected to succeed a
Continuing Director by a majority of Continuing Directors
who are the members of the Board.
Collateral: All personal property of the Borrower described in the
Security Agreement, whether now owned or hereafter acquired,
including, without limitation:
(a) all of the Borrower's accounts, accounts receivable,
Subscriber contract rights, chattel paper, documents,
instruments, goods, inventory, equipment, general
intangibles; and
(b) all proceeds and products of the foregoing.
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.
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Existing
Term Notes: Those certain promissory notes from the Borrower to FNB-0,
FirsTier, FNB-W, NBD, Norwest and Boatmen's dated as of July
7, 1992, October 1, 1992, October 12, 1992, October 19, 1992,
November 3, 1992, January 4, 1993, February 9, 1993, April 16,
1993, July 8, 1993, August 30, 1994, November 29, 1994, and
February 27, 1995, and all extensions, renewals, and
substitutions of or for the foregoing.
Farm Credit: Farm Credit Services of the Midlands, PCA, a production
credit association organized under the laws of United States,
and having its principal place of business at 000 Xxxxx 00xx
Xxxxxx, Xxxxx, Xxxxxxxx 00000.
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).
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-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.
Fixed Rate
Notice: This term shall have the meaning set forth in Section 2.5.
Lenders: FNB-O, FNB-W, NBD, Norwest, Farm Credit, Sumitomo, Mercantile
and First Bank, in their capacity as Revolving Lenders under
this Agreement, the Term Lenders, lenders of the Related Bank
Debt, Boatmen's (as to Articles VI and VII and as to Section
8.6 only), and such additional lenders as may be added hereto
or thereto from time to 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,
cancelling 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.
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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.
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.
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.
Notes: 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.
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 Existing Term Notes or
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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 here-
after existing (including future advances) under 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.
Related
Loan
Agreement: The Loan Agreement dated as of October 9, 1992, between the
Borrower and FNB-O, FirsTier and FNB-W and any loan agreements
issued in extension, renewal, replacement, or restatement of
the foregoing.
Release: The Federal Reserve Statistical Release.
Restricted
Quarter: Has 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.
Revolving
Credit Rate: The Base Rate plus the applicable margin as determined
pursuant to Section 2.3.
Revolving
Lenders: FNB-O, FNB-W, NBD, Norwest, Farm Credit, Sumitomo, Mercantile
and First Bank 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 1996 Restated Security Agreement dated as of May 3, 1996
between the Borrower and FNB-O, as agent for the Lenders, as
amended 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 1996 Term Credit Agreement dated May 3, 1996, among the
Borrower and certain Lenders specified therein, as amended
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 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.
Triggering
Event: Has the meaning set forth in Section 2.5 hereof.
All accounting terms not otherwise defined herein shall have the meaning
ordinarily applied under generally accepted accounting principles.
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II. REVOLVING FACILITY
2.1 Revolving Credit. Until the earlier of June 28, 1997, 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 $43,895,500 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 $43,895,500
limit). Such Advances shall be made on a pro rata basis by the Revolving
Lenders, based on the following maximum advance limits for each Revolving
Lender: (i) as to FNB-O, $9,966,000; (ii) as to FNB-W, $226,500; (iii) as to
NBD, $5,753,100; (iv) as to Norwest, $3,533,400; (v) as to Farm Credit,
$9,603,600; (vi) as to Sumitomo, $4,829,900; (vii) as to Mercantile, $4,983,000
and (viii) as to First Bank, $5,000,000. The Borrower shall not be entitled to
any Advance hereunder if, after the making of such Advance, the Total
Indebtedness would exceed thirty-six (36) times the Borrower's Operating Cash
Flow, 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 Revolving Credit Fees. The Borrower shall pay to the Revolving
Lenders a commitment fee of one quarter of one percent (.25%) per annum of the
unadvanced portion of the $43,895,500 credit line described above. 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 preceding
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. In addition, if
the Borrower's most recent Quarterly Compliance Certificate shows that, as of
the end of the prior quarter (the "Applicable Quarter"), Total Indebtedness was
equal to or in excess of 300% of Net Worth, then each Revolving Lender may
deduct from the amount of any subsequent Advance requested during the quarter
following the Applicable Quarter a closing fee equal to one-half of one percent
(.50%) of the amount of the Advance (if an Advance is requested and made during
the first twenty (20) days of a quarter, and the Borrower has not yet made the
foregoing calculation as to the Applicable Quarter, the Revolving Lenders
reserve the right to invoice the Borrower for, or deduct from any subsequent
Advance, any such fee which would have been deducted but for the fact that the
Quarterly Compliance Certificate for the Applicable Quarter had not been
completed). Furthermore, the Borrower will pay to FNB-O an agenting fee equal to
$18,000 annually, payable quarterly in arrears.
2.3 Interest on Revolving Credit. Until the earlier of June 28, 1997,
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 plus a margin as determined below. The margin shall be adjusted
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quarterly after receipt of the Borrower's Quarterly Compliance Certificate.
Adjustments shall be retroactive to the beginning of the current quarter.
(i) If the Quarterly Compliance Certificate shows that, as of
the end of the prior quarter, Total Indebtedness was less than 250% of
Net Worth, the margin for the current quarter (meaning the quarter in
which the certificate is required to be delivered) shall be zero.
(ii) If the Quarterly Compliance Certificate shows that, as of
the end of the prior quarter, Total Indebtedness was equal to or
greater than 250% of Net Worth but less than 300% of Net Worth, the
margin for the current quarter shall be one quarter of one percent
(.25%).
(iii) If the Quarterly Compliance Certificate shows that, as
of the end of the prior quarter, Total Indebtedness was equal to or
greater than 300% of Net Worth but not more than 350% of Net Worth, the
margin for the current quarter shall be three quarters of one percent
(.75%).
The Base Rate plus 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 on
such day. Interest shall be due upon the rendering of each monthly invoice
therefor by FNB-O. 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.
2.4 Conversion. Upon the earlier of: (i) June 28, 1997; 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 Conversion, no further Advances shall be made by
the Revolving Lenders on the converted amount and the then outstanding Principal
Loan Amount of the 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 28, 2001.
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.
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Notwithstanding anything in the foregoing to the contrary, after Conversion, the
Borrower may elect one of the following alternatives in order 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"):
(a) if the Fixed Rate Notice is given within twelve (12)
months of Conversion, the Borrower may elect a fixed
rate equal to the greater of
(i) the Revolving Credit Rate in effect on the
date of the notice, plus three quarters of one percent (.75%),
or
(ii) two percent (2.00%) above 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;
(b) if the Fixed Rate Notice is given after twelve (12) months
but within twenty-four (24) months of Conversion, the Borrower may
elect a fixed rate equal to the greater of
(i) the Revolving Credit Rate in effect on the date
of the notice, plus three-quarters of one percent (.75%), or
(ii) two percent (2.00%) above the yield on constant
maturity Treasury Bonds with a maturity of three (3) years as
quoted in the immediately preceding monthly Release for the
month preceding such Release;
(c) if the Fixed Rate Notice is given after twenty-four (24)
months of Conversion but within thirty-six (36) months of Conversion,
the Borrower may elect a fixed rate equal to the greater of
(i) the Revolving Credit Rate in effect on the date
of the notice, plus one-half of one percent (.50%), or
(ii) two percent (2.00%) above the yield on constant
maturity Treasury Bonds with a maturity of two (2) years, as
quoted in the immediately preceding monthly Release for the
month preceding such Release; and
(d) if the Fixed Rate Notice is given after thirty-six (36)
months of Conversion but prior to the maturity of the Converted Note,
the Borrower may elect a fixed rate equal to the Revolving Credit Rate
in effect on the date of the notice, plus one-half of one percent
(.50%).
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
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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,
Total Indebtedness was in excess of 300% of Net Worth, 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, 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(a), 2.5(b)
or 2.5(c), in which 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 interest is accruing at
the rate set forth in Section 2.5(a), the fee shall be one and one-half percent
(1.50%) of the amount of such prepayment; (ii) if interest is accruing at the
rate set forth in Section 2.5(b), the fee shall be three-fourths of one percent
(.75%) of the amount of such prepayment; (iii) if interest is accruing at the
rate set forth in Section 2.5(c), 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.
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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 1996 Revolving
Credit Agreement within the definition of Obligations in such notes, it being
understood that this 1996 Revolving Credit Agreement, rather than the 1995
Restated Loan Agreement dated as of June 29, 1995, or the 1993 Restated Loan
Agreement dated as of November 8, 1993, 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 1996
Revolving Credit Agreement. The Existing Term Notes shall continue to be secured
by the security interest provided in the Security Agreement.
2.10 Related Loan Agreement. Nothing herein shall be deemed to alter or
amend the Borrower's obligations under the Related Loan Agreement, the Related
Bank Debt or any collateral security therefor, all of which shall continue in
full force and effect in accordance with the terms thereof.
III. 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 and each of its Subsidiaries, if any, is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and duly qualified and in good standing in all states
where it is doing business except where the failure to be so qualified would not
have a material adverse effect on it and it has full power and authority to own
and operate its properties and to carry on its business. As of June 28, 1996,
the Borrower has no Subsidiaries.
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
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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 or the Purchase Agreement do not require
the consent or approval of, the giving of notice to, the registration with, or
the taking of any other action in respect of, any federal, state or other
governmental authority or agency other than as contemplated herein and therein.
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. Xxx Xxxxxxxx'x
00
- 00 -
xxxxxxxxx xxxxx of business, chief executive office, and the place where it
keeps its records concerning the Collateral is Suite 200, 0000 Xxxx Xxxxx Xxxx,
Xxxxx, Xxxxxxxx 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 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 and statement of earnings 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 and statement of earnings 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
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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) or 4.11;
or (2) have discovered such condition or event, as specifically set
forth in such certificate, which constitutes an Event of Default or
which with the passage of time or the giving of notice would constitute
an Event of Default under such Sections. The auditors shall not be
liable to the Lenders by reason of the auditors' failure to obtain
knowledge of such event or condition in the ordinary course of their
audit unless such failure is the result of negligence or willful
misconduct in the performance of the audit.
(c) Within thirty (30) days after submission to the Securities
and Exchange Commission, the Borrower shall provide to the Lenders
copies of its Forms 10K and 10Q, as submitted to the Securities and
Exchange Commission during the term of this Agreement.
(d) Within twenty (20) days after the end of each quarter, the
Borrower, at its expense, shall furnish the Lenders a certificate of
the chief financial officer of the Borrower in the form of Exhibit C,
setting forth such information (including detailed calculations)
sufficient to verify the conclusions of such officer after due inquiry
and review, that:
(i) The Borrower and each Subsidiary, either (y) is
in compliance with the requirements set forth in this
Agreement or (z) is NOT in compliance with the foregoing for
reasons specifically set forth therein; and
(ii) The chief financial officer of the Borrower has
reviewed or caused to be reviewed all of the terms of the
Operative Documents of the Borrower and that such review
either (1) has NOT disclosed the existence of any condition or
event which constitutes an event of default or any condition
or event which with the passage of time or the giving of
notice would constitute an event of default under the
Operative Documents or (2) has disclosed the existence of a
condition or event which constitutes an event of default, or a
condition or event which with the passage of time or the
giving of notice would constitute an event of default, under
the aforesaid instrument or instruments and the specific
condition or event is specifically set forth.
(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
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entitled to receive as a prepayment on the Notes the proceeds of any sale of
assets of the Borrower which are prohibited by the preceding sentence.
Notwithstanding the foregoing prepayment requirements, any such prohibited sale
shall remain a violation of this Agreement. In addition, the Borrower shall not
engage in any business materially different from that in which it is presently
engaged without the prior written consent of the Lenders, which consent shall
not be unreasonably withheld. The foregoing restrictions on mergers and
consolidations shall not apply if: (i) in the case of a merger, the Borrower is
the surviving entity and expressly reaffirms its obligations hereunder; (ii) in
the case of a consolidation, the resulting corporation expressly assumes the
obligations of the Borrower hereunder; (iii) the surviving or resulting
corporation is organized under the laws of the United States or a jurisdiction
thereof; (iv) after giving effect to such merger or consolidation, the surviving
or resulting corporation will be engaged in substantially the same lines of
business as are now engaged in by the Borrower; and (v) immediately after giving
effect to such merger or consolidation, no Event of Default will exist
hereunder.
4.3 Net Worth. The Borrower shall maintain a minimum Net Worth during
the term of this Agreement of at least $23,500,000; provided, however, solely
for purposes of determining compliance with the provisions of this Section 5.3,
"Net Worth" shall not include any subordinated debt.
4.4 Indebtedness.
(a) The Borrower shall not at any time permit the sum of the
Total Indebtedness to the Lenders to exceed forty-eight (48) times
Operating Cash Flow.
(b) The Borrower shall not at any time permit consolidated
Total Indebtedness to exceed 350% of Net Worth.
(c) 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
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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;
(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 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.
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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.
(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 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.
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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.
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. Notwithstanding anything else
to the contrary herein or in the Operative Documents, Broadcast Partners shall
have no right to share in the proceeds of any such recovery which constitutes
the proceeds of any indemnity claim by the Borrower under the Purchase
Agreement.
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.
19
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. The indebtedness to Broadcast Partners under the Notes
shall not be considered subordinated debt.
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,
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.
V. CONDITIONS PRECEDENT
5.1 Closing Conditions. Any and all obligations of the Lenders
hereunder are subject to satisfaction of the following conditions precedent:
(a) FNB-O, as agent, shall have received an opinion of counsel
to the Borrower covering such matters as the Lenders may request
(including, without limitation, corporate existence and good standing,
corporate authority, due authorization, execution and delivery of the
Operative Documents, the legal, valid, binding and enforceable nature
of the Operative Documents, the perfection and priority of the security
interest in the Collateral granted to the Lenders, and the Borrower's
compliance with applicable state and federal laws in connection with
the equity offering made in connection with the Purchase Agreement),
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.
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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 or
4.16 of this Agreement.
(e) A failure of the Borrower or any Subsidiary to comply with
any requirement or restriction contained in any provision of the
Operative Documents not otherwise specified in this Article VI, which
failure remains unremedied for ten (10) days following receipt of
notice from FNB-O on behalf of the Lenders.
(f) The occurrence of a default or a breach of any of the
obligations of the Borrower or any Subsidiary (other than obligations
of such Subsidiary to the Borrower) under any note, loan agreement,
preferred stock, subordinated debt instrument or agreement, or any
other agreement evidencing an obligation to repay borrowed money.
(g) The entry of a final judgment against the Borrower or any
Subsidiary for the payment of money, which is not covered by insurance,
and the expiration of thirty (30) days from the date of such entry
during which the judgment is not discharged in full or stayed.
(h) The occurrence of any one or more of the following:
(1) The Borrower or any Subsidiary shall file a
voluntary petition in bankruptcy or an order for relief shall
be entered in a bankruptcy case as to such entity or shall
file any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under
any present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief
for debtors; or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of such
entity or of all or any part of its property, or of any or all
of the
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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
(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 Loan Agreement and the expiration of any applicable
cure period thereunder.
(l) The Borrower shall be obligated to prepay all or any
portion of its subordinated debt as a result of a Change of Control.
(m) The Borrower pays, or is determined to be obligated to
pay, any indemnity to Broadcast Partners under the Purchase Agreement
in excess of $1,000,000 in the aggregate.
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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 Loan Agreement (and the operative documents with respect thereto),
including, without limitation, under the Security Agreement. For purposes of
this Article VI, the term Lenders includes 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 Loan Agreements (and the operative documents with respect thereto)
are cumulative. Any waiver must be in writing by the Lenders and no waiver shall
constitute a waiver as to any other occurrence which constitutes an Event of
Default or as to any party not specifically included in such written waiver.
VII. INTER-CREDITOR AGREEMENTS
7.1 FNB-O as Servicer. FNB-O will act as sole servicer of the loans
evidenced by the Notes. For purposes of this Article VII, the term Lenders
includes Boatmen's and the term Event of Default means any Event of Default
hereunder, under any Note, or under the Term Agreement or the Related Loan
Agreement. 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 Loan
Agreement; (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 material 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
23
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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 shall be required
for: (i) any reduction or compromise of the principal loan amount of the Notes,
the amount or rate of interest accrued or accruing thereon or the fees due
hereunder; (ii) extension of the date of any scheduled payment; (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.
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.
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 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.
24
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Prepayments made pursuant to Section 2.6A of the Term Agreement and payments
under the Purchase Agreement shall not be subject to this Section 7.2, it being
understood, however, that prepayments under Section 2.6A of the Term Agreement
shall not be permitted after the occurrence of an Event of Default without the
prior written consent of the Lenders. 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 1996 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.
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.
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.
25
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7.7 New Lenders. In the event that new Lenders are added to this
Agreement, the Term Agreement or the Related Loan Agreement, 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
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
26
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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 Amendments of Existing Documents. The parties hereto
expressly consent and agree to the First Amendment to the 1996 Restated Security
Agreement, dated as of June 28, 1996, between the Borrower and FNB-O as agent
for the Lenders.
IN WITNESS WHEREOF, the Borrower, Boatmen's and the Revolving Lenders
have caused this 1996 Revolving Credit Agreement to be executed by their duly
authorized corporate officers as of the day and year first above written.
27
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DATA TRANSMISSION NETWORK
CORPORATION
By /s/ Xxxxx Xxxxxx
------------------------
Title: CFO, Secretary,Treasurer
------------------------
28
- 51 -
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: /s/ BL
------------------------
Borrower
29
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THE SUMITOMO BANK, LIMITED
By /s/ Xxxxxxx X.X. Xxxxx
------------------------
Title: Vice President
------------------------
By /s/ Xxxxxx 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: /s/ BL
------------------------
Borrower
30
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FIRST NATIONAL BANK,
WAHOO,NEBRASKA
By /s/ Xxxxxxxxx X. 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
31
- 54 -
NBD BANK
By /s/ X.X. Xxxxxx
------------------------
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
32
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NORWEST BANK NEBRASKA, N.A.
By Xxxxxx X. Xxxx
------------------------
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
33
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FARM CREDIT SERVICES OF
THE MIDLANDS, PCA
By /s/
------------------------
Title: Division President-Credit
& Chief Credit Officer
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
34
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MERCANTILE BANK OF ST. LOUIS, N.A.
By /s/ Xxxxxx X. Scooter
------------------------
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
35
- 58 -
FIRST BANK, NATIONAL ASSOCIATION
By /s/ Xxx Xxxxxxxx
------------------------
Title: Senior Vice President
------------------------
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED: /s/ BL
------------------------
Borrower
36
- 59 -
THE BOATMEN'S NATIONAL
BANK OF ST. LOUIS
By /s/ Xxxxxx X. Homes, Jr.
------------------------
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
37
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EXHIBIT A
TO 1996 REVOLVING CREDIT AGREEMENT
BETWEEN
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
FARM CREDIT SERVICES OF THE MIDLANDS, PCA,
THE SUMITOMO BANK, LIMITED,
MERCANTILE BANK OF ST. LOUIS, N.A.,
FIRST BANK, NATIONAL ASSOCIATION,
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS,
AND
DATA TRANSMISSION NETWORK CORPORATION
FORM OF NOTES
1
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SECURED BUSINESS PROMISSORY NOTE
Omaha, Nebraska $
, 19
----------------------
(Note Date) (Maturity Date)
REVOLVING NOTE TERMS
On or before June 28, 1997, 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 1996 Revolving Credit Agreement dated as of June 28,
1996, as amended from time to time (the "Agreement") among Maker and Lender,
First National Bank of Omaha, First National Bank, Wahoo, Nebraska, NBD Bank,
Norwest Bank Nebraska, N.A., Farm Credit Services of the Midlands, PCA, The
Sumitomo Bank, Limited, Mercantile Bank of St. Louis, N.A. and First Bank,
National Association (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 .75% (the "Base Rate") plus 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, Total Indebtedness was less than 250% of
Net Worth, the margin for the current quarter (meaning the quarter in
which the certificate is required to be delivered) shall be zero.
(b) If the Quarterly Compliance Certificate shows that, as of
the end of the prior quarter, Total Indebtedness was equal to or
greater than 250% of Net Worth but less than 300% of Net Worth, the
margin for the current quarter shall be .25%.
(c) If the Quarterly Compliance Certificate shows that, as of
the end of the prior quarter, Total Indebtedness was equal to or
greater than 300% of Net Worth but less than 350% of Net Worth, the
margin for the current quarter shall be .75%.
The Base Rate plus 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 on
such day. Interest shall be due upon the rendering of each monthly invoice
therefore by FNB-O.
2
- 62 -
TERM NOTE TERMS
Upon the earlier of: (i) June 28, 1997; 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"). At the option of the parties, any such term loan may be evidenced
by a separate note. Upon Conversion, the availability of principal under the
revolving loan shall decrease by the amount of the Converted Debt and 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 28, 2001.
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 one
of the following alternatives in order to have a fixed interest rate apply to
the principal converted and outstanding hereunder after the date of giving
notice of such fixed rate election (the "Fixed Rate Notice"):
(a) if the Fixed Rate Notice is given within twelve months of
Conversion, Maker may elect a fixed rate equal to the greater of (i)the
Revolving Credit Rate in effect on the date of the notice, plus .75%,
or
(ii) 2.00% above 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");
(b) if the Fixed Rate Notice is given after twelve months but
within twenty-four months of Conversion, Maker may elect a fixed rate
equal to the greater of
(i) the Revolving Credit Rate in effect on the date
of the notice, plus .75%, or
(ii) 2.00% above the yield on constant maturity
Treasury Bonds with a maturity of three years as quoted in the
immediately preceding monthly Release;
3
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(c) if the Fixed Rate Notice is given after twenty-four months
of Conversion but within thirty-six months of Conversion, Maker may
elect a fixed rate equal to the greater of
(i) the Revolving Credit Rate in effect on the date
of the notice, plus .50%, or
(ii) 2.00% above the yield on constant maturity
Treasury Bonds with a maturity of two years, as quoted in the
immediately preceding monthly Release; and
(d) if the Fixed Rate Notice is given after thirty-six months
of Conversion but prior to the maturity of the term loan, Maker may
elect a fixed rate equal to the Revolving Credit Rate in effect on the
date of the notice, plus .50%.
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, Total Indebtedness
was in excess of 300% of Net Worth, 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.
Maker may at any time prepay in whole or in part any principal amount
outstanding under the Revolving Credit Note or the Converted Note if the Maker
has given the 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), (b) or (c), 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 interest is accruing at the rate set forth in
4
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clause (a) above, the fee shall be 1.50% of the amount of such prepayment; (ii)
if interest is accruing at the rate set forth in clause (b) above, the fee shall
be .75% of the amount of such prepayment; and (iii) if interest is accruing at
the rate set forth in clause (c), 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 a 1996 Restated Security Agreement dated as of May 3, 1996, as amended by
the First Amendment to the 1996 Restated Security Agreement dated as of June 28,
1996 (the "Restated 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 Restated Security Agreement.
Maker's liability under its Obligations shall not be affected by any of
the following:
Acceptance or retention by Lender or Agent of other property
or interests as security for the Obligations, or for the liability of
any person other than a Maker with respect to the Obligations;
The release of all or any of the Collateral or other security
for any of the Obligations to any Maker;
Any release, extension, renewal, modification or compromise of
any of the Obligations or the liability of any obligor thereon; or
Failure by Lender or Agent to resort to other security or any
person liable for any of the Obligations before resorting to the
Collateral.
5
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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 Restated 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 Restated 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 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.
6
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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 Restated 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 , 1995 in the original principal amount of $ . This Note
shall not affect, and there remains outstanding from the Maker to the Lender the
Related Bank Debt (as such term is defined in the Agreement) and those certain
Secured Business Promissory Notes dated as of July 7, 1992, October 1, 1992,
October 12, 1992, October 19, 1992, November 3, 1992, January 4, 1993, February
9, 1993, April 16, 1993, July 8, 1993, August 30, 1994, November 29, 1994 and
February 27, 1995, and all extensions, renewals, and substitutions of or for the
foregoing.
Executed as of this day of , l9 .
DATA TRANSMISSION NETWORK
CORPORATION
By:
Title:
4508J/44-50
7
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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
8
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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
9
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EXHIBIT B
TO 1996 REVOLVING CREDIT AGREEMENT
BETWEEN
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
FARM CREDIT SERVICES OF THE MIDLANDS, PCA,
THE SUMITOMO BANK, LIMITED,
MERCANTILE BANK OF ST. LOUIS, N.A.,
FIRST BANK, NATIONAL ASSOCIATION,
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS,
AND
DATA TRANSMISSION NETWORK CORPORATION
DRAWING CERTIFICATE
1
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DRAWING CERTIFICATE
DATA TRANSMISSION NETWORK CORPORATION
To induce the First National Bank of Omaha, First National Bank, Wahoo,
Nebraska, NBD Bank, Norwest Bank Nebraska, N.A., Farm Credit Services of the
Midlands, PCA, The Sumitomo Bank, Limited, Mercantile Bank of St. Louis, N.A.
and First Bank, National Association (the "Revolving Lenders") to make an
advance under the 1996 Revolving Credit Agreement (the "Agreement") dated as of
June 28, 1996, between the undersigned (the "Borrower"), The Boatmen's National
Bank of St. Louis ("Boatmen's"), and the Revolving Lenders (as to Boatmen's and
the Revolving Lenders together, (the "Banks"), the Borrower hereby certifies to
the Banks that its Operating Cash Flow (as defined in the Agreement) as
represented below is true and correct and that there is no default under the
aforementioned Agreement, or on any other liability of the Borrower to the
Banks.
All information as of: Date
------------------------------
a) Principal on Converted Notes,
Acquisition Notes, Existing Term Notes,
and Related Bank Debt Outstanding $
----------------------
b) Principal on Revolving Credit $
----------------------
c) ADVANCE REQUEST $
----------------------
d) Total Proposed Bank Debt
(line a + line b + line c) $
----------------------
e) Most recent month's operating cash flow $
----------------------
f) Prior month's operating cash flow $
----------------------
g) Operating Cash Flow
(average of line e and line f) $
----------------------
h) 36 x Operating Cash Flow $
----------------------
i) Excess (line h - line d) $
----------------------
Name of Borrower: Data Transmission Network Corporation
Signature:
---------------------------------------
Title:
---------------------------------------
2
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EXHIBIT C
TO 1996 REVOLVING CREDIT AGREEMENT
BETWEEN
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
FARM CREDIT SERVICES OF THE MIDLANDS, PCA,
THE SUMITOMO BANK, LIMITED,
MERCANTILE BANK OF ST. LOUIS, N.A.,
FIRST BANK, NATIONAL ASSOCIATION,
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS,
AND
DATA TRANSMISSION NETWORK CORPORATION
OFFICER'S CERTIFICATE
1
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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 1996 Revolving Credit Agreement (the "Agreement")
dated as of June 28, 1996, between First National Bank of Omaha, First National
Bank, Wahoo, Nebraska, NBD Bank, Norwest Bank Nebraska, N.A., Farm Credit
Services of the Midlands, PCA in care of AgAmerica, FCB, The Sumitomo Bank,
Limited, Mercantile Bank of St. Louis, N.A., First Bank, National Association,
The Boatmen's National Bank of St. Louis 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/Net Worth = / = %
------- ------- -------
(for the purposes of this document this calculation will be abbreviated by
TI/NW)
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 =
Section 2.3
o Pricing: If TI/NW is less than 250% then the margin is zero.
2
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If TI/NW is equal or greater than 250% but less
than 300% then the margin is 1/4%. If TI/NW is
equal or greater than 300% but less than 350% then
the margin is 3/4%.
Position: The Revolving Credit Rate is the Base Rate plus
zero or 1/4% or 3/4%.
Section 2.5
o Trigger Fee: If TI/NW exceeds 300%, 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
o Net Worth: A minimum Net Worth (exclusive of subordinated debt) of
$23,500,000 is required.
Position: Net Worth (exclusive of subordinated debt)= $
-----------
Section 4.4
o Indebtedness: At no time will Total Indebtedness exceed 48 x OCF.
Position: (48 x OCF) - Total Indebtedness =
- =
---------- ------------------- -----------
o Indebtedness: At no time will TI/NW exceed 350%.
Position: TI/NW = %
-----
3
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o 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 4.15
o Interest The ratio of OCF to Interest Expense ("IE") at
Coverage: the end of each quarter will not be less than
2.25 to 1.0 (225%).
Position: OCF = $_________________
IE = $ _________________
OCF/IE = ______________ %
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.
(iii) an indemnity claim by Broadcast Partners under Section
6.1(m).
Name of Borrower: Data Transmission Network Corporation
Signature: ______________________________________
Title: ______________________________________
4
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