1995 RESTATED LOAN AGREEMENT
This 1995 Restated Loan Agreement (the "Agreement") is entered into as
of the 29th day of June, 1995 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"), FIRSTIER BANK,
NATIONAL ASSOCIATION, LINCOLN, NEBRASKA a national banking association having
its principal place of business at 00xx xxx X Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000
("FirsTier"), 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"), 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"), and AgAmerica, FCB, a farm credit bank doing business at 000
Xxxxx 00xx Xxxxxx, Xxxxx, Xxxxxxxx 00000-0000 ("AgAmerica").
WITNESSETH:
WHEREAS, the Borrower, FNB-O, FirsTier, FNB-W, NBD, Norwest and
Boatmen's are parties to a 1993 Restated Loan Agreement dated as of
November\8,\1993, as amended by a First Amendment to Restated Loan Agreement
dated as of April\11,\1994, a Second Amendment to and Extension of Restated Loan
Agreement dated as of June\29,\1994, a Third Amendment to 1993 Restated Loan
Agreement dated as of August\30,\1994, a Fourth Amendment to 1993 Restated Loan
Agreement dated as of November\29,\1994, a Fifth Amendment to 1993 Restated Loan
Agreement dated as of February\27,\1995, and a Sixth Amendment to 1993 Restated
Loan Agreement dated as of April\28,\1995;
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WHEREAS, the Borrower, FNB-O, FirsTier, FNB-W, NBD, Norwest and
Boatmen's wish to further amend such prior 1993 Restated Loan Agreement, as
amended;
WHEREAS, the Borrower, FNB-O, FirsTier, FNB-W, NBD, Norwest and
Boatmen's wish to restate such prior 1993 Restated Loan Agreement, as amended,
and to have this 1995 Restated Loan Agreement be the controlling agreement with
respect to the matters set forth herein, which shall supersede the prior 1993
Restated Loan Agreement, as amended;
WHEREAS, the Borrower, FNB-O, FirsTier, FNB-W, NBD, Norwest and
Boatmen's do not intend for this 1995 Restated Loan Agreement to be deemed to
extinguish any existing indebtedness of the Borrower or to release, terminate or
affect the priority of any security therefor; and
WHEREAS, AgAmerica wishes to become a party to this 1995 Restated Loan
Agreement, and the other parties are agreeable thereto;
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:
ADVANCE: Any advance of funds to the Borrower by the Banks or any of
them pursuant to this Agreement.
AGAMERICA: AgAmerica, FCB, a farm credit bank doing business at 000 Xxxxx
00xx Xxxxxx, Xxxxx, Xxxxxxxx 00000-0000, and its successors
and assigns.
AGREEMENT: This 1995 Restated Loan Agreement dated as of June\29,\1995
between the Borrower and the Banks.
BANKS: FNB-O, FirsTier, FNB-W, NBD, Norwest, Boatmen's and AgAmerica.
BASE RATE: The floating interest rate announced from time to time
by FNB-O as its "National Base Rate." This 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
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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 Xxx
Xxxxxxx'x Xxxxx, 000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx
00000-0000, 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.
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 the date hereof 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.
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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,
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 2.3.
EXISTING
TERM NOTES: Those certain promissory notes from the Borrower to
FNB-O, FirsTier, FNB-W, NBD, Norwest and Boatmen's dated as of
January\15, 1992, February\4, 1992, March\3, 1992, May\6,
1992, July\7, 1992, October\1, 1992, October\12, 1992, October
13, 1992, October\19, 1992, November\3, 1992, December 7,
1992, December\31, 1992, January\4, 1993, February\9, 1993,
April\16, 1993, July\8, 1993, August\30, 1994, November\29,
1994, and February\27, 1995, all as described on Schedule A
hereto.
FIRSTIER: FirsTier Bank, National Association, Lincoln, Nebraska, a
national banking association having its principal place of
business at 13th and X Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000, and
its successors and assigns.
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 2.4.
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.
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NET WORTH: The Borrower's 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 Banks, to the indebtedness due to
the Banks, 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 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.
Note A: Promissory note dated as of the date hereof and made by the
Borrower to FNB-O in the principal amount of $9,315,000, or any promissory
note given in extension or substitution thereof.
Note B: Promissory note dated as of the date hereof and made by the
Borrower to FirsTier in the principal amount of $3,795,000, or any
promissory note given in extension or substitution thereof.
Note C: Promissory note dated as of the date hereof and made by the
Borrower to FNB-W in the principal amount of $345,000, or any promissory
note given in extension or substitution thereof.
Note D: Promissory note dated as of the date hereof and made by the
Borrower to NBD in the principal amount of $7,245,000, or any promissory
note given in extension or substitution thereof.
Note E: Promissory note dated as of the date hereof and made by the
Borrower to Norwest in the principal amount of $6,555,000, or any
promissory note given in extension or substitution thereof.
Note F: Promissory note dated as of the date hereof and made by the
Borrower to AgAmerica in the principal amount of $7,245,000 or any
promissory note given in extension or substitution thereof.
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NOTES: Note A, Note B, Note C, Note D, Note E and Note F and any
separate promissory notes given to evidence the term loans
created by Conversion.
OPERATING
CASH FLOW: The Borrower's average monthly earnings or loss before
interest, depreciation 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 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 months.
OPERATIVE
DOCUMENTS: This 1995 Restated Loan Agreement, the Related Loan Agreement,
the Notes, the Existing Term Notes, the Security Agreement,
the financing statements regarding the Collateral and the
documents and certificates delivered pursuant to Article V.
PRINCIPAL
LOAN AMOUNT: As to the Revolving Credit facility, the aggregate
principal amount of all unpaid Advances outstanding at any
time not including the unpaid balance under the Existing Term
Notes or any amounts converted to a term loan hereunder, and
as to term loan hereunder, the unpaid principal amount of any
Conversion under Section 2.3.
QUARTERLY
COMPLIANCE
CERTIFICATE: The certificate delivered to the Banks by the Borrower
pursuant to Section 4.1(d).
RELATED
BANK DEBT: The aggregate unpaid balance of all indebtedness, now or
hereafter existing (including future advances) under 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.
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RELATED
LOAN
AGREEMENT: The Loan Agreement dated as of October 9, 1992 between the
Borrower and FNB-O, FirsTier and FNB-W.
REVOLVING
CREDIT RATE: The Base Rate plus the applicable margin as determined
pursuant to Section 2.2.
REVOLVING
LENDERS: FNB-O, FirsTier, FNB-W, NBD, Norwest and AgAmerica.
SECURITY
AGREEMENT: The Restated Security Agreement dated as of November 8, 1993
between the Borrower and FNB-O, as agent for the Banks, 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 other
services and who are not in default of their payment or other
obligations with respect thereto.
TOTAL
INDEBTEDNESS: All loans and other obligations of the Borrower for borrowed
money (including, without limitation, the indebtedness due to
the Banks) regardless of the maturity thereof but such term
shall not include subordinated debt, as such term is defined
in the definition of Net Worth up to $15,000,000 if such
subordinated debt is existing on the date of this Agreement.
All accounting terms not otherwise defined herein shall have the meaning
ordinarily applied under generally accepted accounting principles.
II. LOAN TERMS
2.1 Revolving Credit. Until the earlier of June\30, 1996 or the date on
which the loan hereunder is converted to a term loan in accordance with Section
2.3, the Revolving Lenders agree to advance funds not to exceed $34,500,000 to
the Borrower on a revolving credit basis (amounts outstanding under the Existing
Term Notes and Related Bank Debt shall not be counted against such $34,500,000
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: (1) as to FNB-O, $9,315,000; (ii) as to FirsTier, $3,795,000;
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(iii) as to FNB-W, $345,000; (iv) as to NBD, $7,245,000; (v) as to Norwest,
$6,555,000; and (vi) as to AgAmerica, $7,245,000. The Borrower shall not be
entitled to any Advance hereunder if, after the making of such Advance, the
Total Indebtedness would exceed thirty-six 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). Advances
shall be made, on the terms and conditions of this Agreement, upon the
Borrower's request. Requests shall be made by 12 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 A. 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 $34,500,000 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. 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 250% 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 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). In addition to the foregoing fees, the Borrower
will pay at closing a commitment fee to each Bank shown below in the amount
indicated opposite such Bank's name:
Commitment
Bank Increase in Facility Fee
-------- ---------------------- ----------
FNB-O $2,758,500 $ 3,448.13
FNB-W 133,500 166.88
NBD 3,226,500 4,033.13
Norwest 2,959,500 3,699.38
----------
$11,347.47
Furthermore the Borrower will pay to FNB-O at closing an agenting fee equal to
$2,826.72.
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2.2 Interest on Revolving Credit. Until the earlier of June 30, 1996 or
the date on which the 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, except that after an Event of Default has occurred,
interest shall accrue on the entire outstanding balance of principal and
interest at a fluctuating rate equal to the Revolving Credit Rate as defined
below plus four percent (4.00%). The margin shall be adjusted quarterly after
receipt of the Borrower's Quarterly Compliance Certificate. Adjustments shall be
retroactive to the beginning of the current quarter.
(i) If the Quarterly Compliance Certificate shows that, as of
the end of the prior quarter, Total Indebtedness was less than 200% 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 200% of Net Worth but less than 250% 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 250% of Net Worth but less than 300% of Net Worth, the margin for
the current quarter shall be three quarters of one percent (.75%).
(iv) 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, the margin for the current quarter shall be one
and one quarter percent (1.25%).
The Base Rate plus the applicable margin as determined above is hereinafter
referred to as the "Revolving Credit Rate." Interest shall be calculated on the
basis of the actual number of days outstanding and a 360-day year. 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.
2.3 Term Loan. Upon the earlier of: (i) June\30, 1996; or (ii) the
Borrower's giving notice of its election to convert the 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"). At the option of the parties,
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any such term loans may be evidenced by notes separate from Notes A, B, C, D, E
and F. 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 term loan shall become due and payable in forty-eight equal
installments of principal, with the first such installment due on the 30th 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 same day of
each consecutive month thereafter. In any event, the total amount of all unpaid
principal and accrued interest hereunder shall be due and payable no later than
June\30, 2000.
2.4 Interest on Term Loan. After Conversion, interest shall accrue on
the Principal Loan Amount outstanding on the respective term loan from time to
time at a variable rate, which shall fluctuate on a monthly basis, which is
equal to the Revolving Credit Rate plus one quarter of one percent (.25%). For
purposes of computing such variable rate, changes in the Base Rate shall be
effective on the first day of each month based on the Base Rate in effect on
such day. Notwithstanding anything in the foregoing to the contrary, after
Conversion, the Borrower may elect 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 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 and one-half percent (2.50%) 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") for the month preceding such Release;
(b) if the Fixed Rate Notice is given after twelve months but
within twenty-four 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 and one-half percent (2.50%) above the yield
on constant maturity Treasury Bonds with a
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maturity of three 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 months
of Conversion but within thirty-six 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 and one-half percent (2.50%) above the yield
on constant maturity Treasury Bonds with a maturity of two
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 months of
Conversion but prior to the maturity of the term loan, 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.
Notwithstanding the foregoing, after an Event of Default has occurred interest
shall accrue on the entire outstanding balance of principal and interest at a
fluctuating rate equal to the Revolving Credit Rate plus four percent (4.00%).
Interest shall be calculated on the basis of the actual number of days
outstanding and a 360-day year. Interest shall be due each month concurrently
with the Borrower's principal payment. Interest shall continue to accrue on the
full unpaid balance hereunder notwithstanding any permitted or unpermitted
failure of the Borrower to make a scheduled payment or the fact that a scheduled
payment day falls on a day other than a Business Day. If the Borrower's most
recent Quarterly Compliance Certificate shows that, as of the end of the prior
quarter, Total Indebtedness was in excess of 250% 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 term loan hereinafter created under this Agreement
is less than seven and one-half percent (7.50%), a "Trigger Event" shall be
deemed to have occurred. Upon the occurrence of a Trigger Event, the Borrower
shall be obligated to pay the following fees: (i) three-eighths of one percent
(.375%) of the outstanding principal balance of such Note or term loan as of the
date preceding the Trigger Event, which amount shall be payable promptly upon
invoicing by the Banks; (ii) the same amount as computed in clause (i), payable
on the six-month anniversary of the Trigger Event; and
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(iii) the same amount as computed in clause (i), payable on the twelve-month
anniversary of the Trigger Event.
2.5 Payment. The Borrower's obligation to make payments of principal and
interest hereunder shall be further evidenced by the Notes. All obligations of
the Borrower under the Notes and the other Operative Documents shall be payable
in immediately available funds in lawful money of the United States of America
at the principal office of FNB-O in Omaha, Nebraska or at such other address as
may be designated by FNB-O in writing.
2.6 Prepayment. The Borrower may at any time prepay the Principal Loan
Amount outstanding under the Revolving Credit facility or any term loan. Any
such prepayment may be made without penalty except after Conversion when
interest is accruing on a fixed rate basis under Section 2.4(a), 2.4(b) or
2.4(c), in which event a prepayment fee shall be due as follows: (i) if interest
is accruing at the rate set forth in Section 2.4(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 2.4(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 2.4(c), the fee shall be three-tenths
of one percent (.30%) of the amount of such prepayment.
2.7 Security. All obligations of the Borrower hereunder and under the
Operative Documents, including, without limitation, the Borrower's obligations
to make payments of principal and interest shall be secured by a first security
interest in the Collateral, as more specifically described in the Security
Agreement.
2.8 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 1995 Restated Loan
Agreement within the definition of Obligations in such notes, it being
understood that this 1995 Restated Loan Agreement, rather than the 1993 Restated
Loan Agreement 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 1995
Restated Loan Agreement. The Existing Term Notes shall continue to be secured by
the security interest provided in the Security Agreement.
2.9 Related Loan Agreement. Nothing herein shall be deemed to alter or
amend the Borrower's obligations under the Related Loan Agreement and the
Related Bank Debt shall continue in full force and effect in accordance with the
terms thereof.
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III. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that as of the date hereof and as
of the date of each and every request for an Advance hereunder, the following
are and shall be true and correct:
3.1 Corporate Existence. It is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and duly
qualified and in good standing in all jurisdictions in which it is doing
business and in which failure to qualify would have a material adverse effect,
including without limitation the States of Nebraska, Iowa, Illinois, Indiana,
Kansas, Michigan, Minnesota, Missouri, Ohio, South Dakota and Wisconsin and it
has full power and authority to own and operate its properties and to carry on
its business.
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 is a party or by which it or any of its
property may be bound.
3.3 Validity of Agreements. Its Operative Documents have been duly
authorized, executed and delivered and constitute its legal, valid and binding
agreements, enforceable against the Borrower in accordance with their respective
terms (except to the extent that enforcement thereof may be limited by any
applicable bankruptcy, reorganization, moratorium or similar laws now or
hereafter in effect, or by principles of equity).
3.4 Litigation. It is not 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 may become a party or of any investigation of
any Court or governmental body or agency into its affairs, which if instituted
would have a material adverse effect upon the Borrower's ability to perform its
obligations under its Operative Documents.
3.5 Governmental Approvals. The execution, delivery and
performance by the Borrower of the Operative Documents do not
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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. The Borrower is not 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 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. It is not 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 its Operative Documents or which could have a material adverse effect
upon its ability to perform its obligations under its Operative Documents.
3.9 Taxes. All its tax returns for material taxes required to be filed
have been filed or extensions permitted by law have been obtained; all taxes 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 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 B attached hereto. The Borrower's
principal place 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. The Borrower does not maintain a "Plan" as
defined in Section 3 of the Employees Retirement Income Security Act of 1974
("ERISA") or is in compliance with the minimum funding requirements with respect
to any such
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"Plan" maintained by the Borrower and the Borrower 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 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 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 is
truly and accurately set forth in the most recent financial statement which has
been provided to the Banks 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 Banks a balance sheet
and statement of earnings of the Borrower, 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 Banks:
(i) a balance sheet and statement of earnings of the Borrower, certified
by Deloitte & Touche, or other independent certified public accountants
acceptable to the Banks, that such financial reports fairly present the
financial condition of the Borrower and have been prepared in accordance
with generally accepted accounting principles consistently applied; and
(ii) a certificate from such accountants certifying that in making the
requisite audit for certification of the Borrower's financial
statements, the auditors either (1) have obtained no knowledge, and are
not otherwise aware of, any condition
87
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
Banks 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 30 days after submission to the Securities and
Exchange Commission, the Borrower shall provide to the Banks 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 Banks a certificate of the
chief financial officer of the Borrower in the form of Exhibit B,
setting forth such information (including detailed calculations)
sufficient to verify the conclusions of such officer after due inquiry
and review, that:
(i) The Borrower, 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 Banks with such other
financial reports and statements as the Banks may reasonably request.
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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 Banks. The Banks
shall be entitled to receive as a prepayment on the Notes the proceeds of any
sale of assets of the Borrower which are prohibited by the preceding sentence.
Notwithstanding the foregoing prepayment requirements, any such prohibited sale
shall remain a violation of this Agreement. In addition, the Borrower shall not
engage in any business materially different from that in which it is presently
engaged without the prior written consent of the Banks, 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 $11,000,000; provided, however, solely
for purposes of determining compliance with the provisions of this Section 4.3,
"Net Worth" shall not include any subordinated debt.
4.4 Indebtedness.
(a) The Borrower shall not at any time permit the sum of the
Total Indebtedness to the Banks to exceed forty-eight times Operating
Cash Flow.
(b) The Borrower shall not at any time permit Total Indebtedness
to exceed 350% of Net Worth.
(c) On the day the Borrower 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, plus the Borrower's
contingent obligations 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
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of any property or business) shall not exceed an amount equal to sixty
times Operating Cash Flow at such date.
4.5 Use of Proceeds. The Borrower shall not use the proceeds of the
Advances hereunder to purchase or carry any "margin stock" (within the meaning
of Regulation U of the Board of Governors of the Federal Reserve System of the
United States) or any "margin security" (within the meaning of Regulation G of
said Board of Governors), or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or margin security. No part of such
proceeds shall be used for any purpose that violates, or which is inconsistent
with, the provisions of Regulation G, T, U or X of said Board of Governors. This
section shall not preclude the Borrower from repurchasing any of its own issued
and outstanding common stock; provided however, that such repurchase does not
result in the occurrence of any other Event of Default hereunder.
4.6 Notice of Default. The Borrower shall give to the
Banks 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 to which the Borrower 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.
4.7 Distributions.
(a) The Borrower shall not 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
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prior written consent of the Banks; provided, however, that the Borrower
may declare stock dividends; provided, further, that the Borrower need
not obtain the Banks' consent with respect to dividends in any one year
which are, in aggregate, less than 25% of the Borrower's net operating
profit after taxes in the previous four quarters, as reported to the
Banks pursuant to Section 4.1.
(b) The Borrower shall not 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 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 shall comply in
all material respects with all applicable federal and state laws and
regulations.
4.9 Maintenance of Property; Accounting; Corporate Form;
Taxes; Insurance.
(a) The Borrower 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 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 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.
(d) The Borrower shall pay all taxes, assessments and
governmental charges or levies imposed upon it or its property;
provided, however, that the Borrower 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 liability insurance
and casualty insurance upon the Collateral (excluding
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equipment or inventory provided to Subscribers in the ordinary course of
business) tangible assets. The Borrower shall name the Banks as the loss
payee on all such casualty insurance, and as an additional insured on
all such liability insurance and shall provide the Banks with evidence
of such insurance upon request.
4.10 Inspection of Properties and Books. The Borrower shall recognize
and honor the right of the Banks, 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 Banks may reasonably desire.
4.11 Guaranties. The Borrower shall not guaranty or
become responsible for the indebtedness of any other person or
entity.
4.12 Collateral. The Borrower shall not 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 from
acquiring leased equipment in the ordinary course of business.
4.13 Name; Location. The Borrower shall give the Banks fifteen 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 Banks 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 of the following has occurred with
respect to three 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
person as an officer and director of the Borrower; (ii) any
announcement, notice of
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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 person.
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 2.4 of this Agreement) at the end of
each quarter during the term of this Agreement, as shown on the Quarterly
Compliance Report, shall not be less than 2.25 to 1.0.
4.16 Subordinated Debt. The Borrower shall not incur any subordinated
debt or issue any preferred stock or warrants for preferred stock except upon
the prior written consent of the Banks. The Borrower shall not make any
voluntary or optional prepayment on any subordinated debt without the prior
written consent of the Banks. 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 Banks.
V. CONDITIONS PRECEDENT
Any and all obligations of the Banks hereunder are subject to
satisfaction of the following conditions precedent:
(a) the Revolving Lenders shall have received an opinion of
counsel to the Borrower covering such matters referred to in Article III
as the Revolving Lenders may request, satisfactory in form and substance
to counsel to the Revolving Lenders;
(b) the Revolving Lenders shall have received such certificates
and documents as the Revolving 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
Banks, 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 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 to comply with any requirement or
restriction 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 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 days following receipt of notice from the Banks.
(f) The occurrence of a default or a breach of any of the
Borrower's obligations 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 for the
payment of money, which is not covered by insurance, and the expiration
of 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 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
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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 the Borrower or of all or any part of its
property, or of any or all of the royalties, revenues, rents,
issues or profits thereof, or shall make any general assignment
for the benefit of creditors, or shall admit in writing its
inability to pay its debts or shall generally not pay its debts
as they become due; or
(2) A court of competent jurisdiction shall enter an
order, judgment or decree approving a petition filed against the
Borrower 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 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 the
Borrower 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 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
95
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 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.
6.2 Remedies. If an Event of Default occurs and is continuing, upon the
election of the Banks holding two-thirds of the then outstanding Total
Indebtedness of the Borrower to the Banks the entire unpaid principal amount
under the Notes and the Existing Term Notes and all Related Bank Debt, together
with interest accrued thereon, shall become immediately due and payable without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived, and the Banks may exercise their rights under the other
Operative Documents and the Related Loan Agreement, including, without
limitation, under the Security Agreement. In addition, the Banks shall have such
other remedies as are available at law and in equity. Remedies under this
Agreement and the other Operative Documents are cumulative. Any waiver must be
in writing by the Banks 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.
ARTICLE VII. INTER-BANK AGREEMENTS
7.1 FNB-O as Servicer. FNB-O will act as sole servicer of the loans made
to the Borrower hereunder (including, without limitation, the loans made under
the Existing Term Notes). FNB-O will enforce, administer and otherwise deal with
the loans made by FirsTier, FNB-W, NBD, Norwest, Boatmen's and AgAmerica 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 Banks: (i) maintain originals
of the Operative Documents; (ii) receive requests for Advances from the Borrower
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
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7.2; (iv) receive notices from the Borrower and send copies thereof to FirsTier,
FNB-W, NBD, Norwest, Boatmen's and AgAmerica if FNB-O has reasonable cause to
believe that such banks have not received such notice from another source; and
(v) advise FirsTier, FNB-W, NBD, Norwest, Boatmen's and AgAmerica of the
occurrence of any material Event of Default which FNB-O obtains actual knowledge
of. FirsTier, FNB-W, NBD, Norwest, Boatmen's and AgAmerica agree not to attempt
to take any action against the Borrower without FNB-O's consent unless holders
of two-thirds of the then outstanding Total Indebtedness of the Borrower to the
Banks shall have requested FNB-O to take specific action against the Borrower
and FNB-O shall have failed to do so within a reasonable period after receipt of
such request. All actions, consents, waivers and approvals by the Banks shall be
deemed taken or given and amendments hereto deemed agreed to if the holders of
more than two-thirds of the outstanding Total Indebtedness of the Borrower to
the Banks shall have indicated their consent thereto. Notwithstanding the
foregoing, any reduction or compromise of the Principal Loan Amount or the
Existing Term Notes or the amount or rate of interest accrued or accruing
thereon or extension of the date of any scheduled payment shall require the
unanimous approval of the Banks.
7.2 Application of Payments. Until the earlier of the occurrence of an
Event of Default or any Bank'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;
(b) second, to make payments due but unpaid under any
of the Term Notes, Existing Term Notes and Related Bank
Debt; and
(c) third, pro rata to the Banks, 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 Bank's giving of notice that
it deems itself insecure, payments or prepayments on the Notes, the Existing
Term Notes or the Related Bank Debt received by FNB-O or any of the Banks 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
97
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 FNB-O, FirsTier, FNB-W, NBD,
Norwest, Boatmen's and AgAmerica based on their respective pro rata
shares of the funds to be applied. Each Bank's pro rata share shall be
equal to a fraction, (x) the numerator of which shall be the portion of
the Principal Loan Amount then outstanding which has been actually
advanced by each such Bank along with the amount owing to each such Bank
under its Existing Term Note and under the Related Bank Debt, and (y)
the denominator of which shall be the total Principal Loan Amount then
outstanding along with the total amount owing to the Banks under the
Existing Term Notes and the Related Bank Debt.
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 either of the
other Banks nor shall FNB-O have any obligation to purchase all or a part of
Note B, Note C, Note D, Note E, Note F, the Existing Term Notes or any Advance
made by such Banks, nor shall such Banks have any recourse whatsoever against
FNB-O with respect to any failure of the Borrower to repay the indebtedness
described herein.
7.3 Liability of FNB-O. FNB-O shall not be liable to the Banks 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 1995 Restated Loan
Agreement, the Notes, the Existing Term Notes or the other Operative Documents
or the value or sufficiency of any collateral given by the Borrower or the
priority of the Banks' 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 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.
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7.4 Transfers. FirsTier, FNB-W, NBD, Norwest, Boatmen's and AgAmerica
shall not subdivide, transfer or grant a participation in their respective
Notes, the Existing Term Notes or in any Advance, without the prior written
consent of FNB-O which consent shall not be unreasonably withheld.
7.5 Reliance. The Banks acknowledge that they have been advised that
none of the Notes, the Existing Term 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 Banks
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 Banks. The Banks intend for the relationships
created by this Agreement to be construed as concurrent direct loans from each
Bank respectively to the Borrower. Nothing herein shall be construed as a loan
from FirsTier, FNB-W, NBD, Norwest, Boatmen's or AgAmerica to FNB-O or as
creating a partnership or joint venture relationship among them.
ARTICLE VIII. MISCELLANEOUS
8.1 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and may not
be effectively amended, changed, modified or altered, except in writing executed
by all parties.
8.2 Governing Law. The Operative Documents shall be governed by and
construed pursuant to the laws of the State of Nebraska.
8.3 Notices. Until changed by written notice from one party hereto to
the other, all communications under the Operative Documents shall be in writing
and shall be hand delivered or mailed by registered mail to the parties as
follows:
If to the Borrower:
DATA TRANSMISSION NETWORK CORPORATION
Suite 200
0000 Xxxx Xxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
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If to the Banks:
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 Section 2.3 or 2.4 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 Banks of this
Agreement and shall continue in full force and effect so long as the Note or any
obligation to the Banks 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 Banks.
8.7 Severability. Should any one or more provisions of this Agreement be
determined to be illegal or unenforceable, all other provisions shall
nonetheless remain effective.
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 parties hereto.
100
IN WITNESS WHEREOF, the Borrower and the Banks have caused this 1995
Restated Loan Agreement to be executed by their duly authorized corporate
officers as of the day and year first above written.
DATA TRANSMISSION NETWORK
CORPORATION
By: /s/ Xxxxx Xxxxxx
---------------------------------
Title: Chief Financial Officer
---------------------------------
FIRST NATIONAL BANK OF OMAHA
By: /s/ X.X. Xxxxxx
--------------------------------
Title: Vice President
--------------------------------
101
FIRSTIER BANK, NATIONAL
ASSOCIATION, LINCOLN, NEBRASKA
By: /s/ Xxxx Xxxxxx
----------------------------------
Title: 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
4266J
000
XXXXX XXXXXXXX XXXX, XXXXX,
XXXXXXXX
By: /s/ Xxxxxxxxx X. Xxxxx
-------------------------------
Title: Loan 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
4266J
103
NBD BANK
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
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
4266J
000
XXXXXXX XXXX XXXXXXXX, N.A.
By: /s/ 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
4266J
105
THE BOATMEN'S NATIONAL BANK OF
ST. LOUIS
By: /s/ Xxxxxx X. Scooter, 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
4266J
106
AGAMERICA, FCB
By: /s/ Xxxxx X. Xxxxx
---------------------------
Title: Vice President
---------------------------
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
/s/ BL
-----------
Borrower
4266J
107
EXHIBIT A
TO 1995 RESTATED LOAN AGREEMENT
BETWEEN
FIRST NATIONAL BANK OF OMAHA,
FIRSTIER BANK, NATIONAL ASSOCIATION, LINCOLN, NEBRASKA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS,
AGAMERICA, FCB
AND
DATA TRANSMISSION NETWORK CORPORATION
DRAWING CERTIFICATE
108
DRAWING CERTIFICATE
DATA TRANSMISSION NETWORK CORPORATION
To induce the First National Bank of Omaha, FirsTier Bank, National Association,
Lincoln, Nebraska, First National Bank, Wahoo, Nebraska, NBD Bank, Norwest Bank
Nebraska, N.A. and AgAmerica, FCB (the "Revolving Lenders") to make an advance
under the 1995 Restated Loan Agreement dated as of June 30, 1995, between the
undersigned (the "Borrower"), The Boatmen's National Bank of St. Louis
("Boatmen's") (as to Boatmen's and the Revolving Lenders together the "Banks")
and the Revolving Lenders, the Borrower hereby certifies to the Banks that its
Operating Cash Flow (as defined in the Loan Agreement) as represented below is
true and correct and that there is no default under the aforementioned Loan
Agreement, or on any other liability of the Borrower to the Banks.
All information as of: Date
---------------------------
a) Principal on Term Notes 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:
---------------------------------------
4266J
109
EXHIBIT B
TO 1995 RESTATED LOAN AGREEMENT
BETWEEN
FIRST NATIONAL BANK OF OMAHA,
FIRSTIER BANK, NATIONAL ASSOCIATION, LINCOLN, NEBRASKA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS,
AGAMERICA, FCB
AND
DATA TRANSMISSION NETWORK CORPORATION
OFFICER'S CERTIFICATE
110
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 1995 Restated Loan Agreement dated as of June 30,
1995, between First National Bank of Omaha, FirsTier Bank, National Association,
Lincoln, Nebraska, First National Bank, Wahoo, Nebraska, NBD Bank, Norwest Bank
Nebraska, N.A., The Boatmen's National Bank of St. Louis, AgAmerica, FCB and
Data Transmission Network Corporation.
The following calculations are as of (statement date) as required by section
4.1(d) of said Loan 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
----------------- ------------------
Deferred Income Taxes
----------------- ------------------
Non-Ordinary Non-Cash
Charges (Credits)
----------------- ------------------
Total a) b)
----------------- ------------------
Operating Cash Flow = OCF = (a+b)/2 =
------------------
Section 2.1
Advance Fee: If TI/NW equals or exceeds 250% then a 1/2%
advance fee on new advances is due.
Position: The advance fee does/does not apply.
111
Section 2.2
Pricing: If TI/NW is less than 200% then the margin is zero.
If TI/NW is equal or greater than 200% but
less than 250% then the margin is 1/4%.
If TI/NW is equal or greater than 250% but
less than 300% then the margin is 3/4%.
If TI/NW is equal or greater than 300% then
the margin is 1 1/4%.
Position: The Revolving Credit Rate is the Base Rate
plus zero or 1/4% or 3/4% or 1 1/4%.
Section 2.4
Trigger Fee: If TI/NW exceeds 250%, 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 which have an
interest rate less than 7.5% is due.
Position: A Trigger Event has/has not occurred.
Section 4.3
Net Worth: A minimum Net Worth (exclusive of
subordinated debt) of $11,000,000 is required.
Position: Net Worth (exclusive of subordinated debt)=
$ .
-----------------------
Section 4.4
Indebtedness: At no time will Total Indebtedness exceed 48 x OCF.
Position: (48 x OCF) - Total Indebtedness =
- =
-------------- --------------- ----------------
Indebtedness: At no time will TI/NW exceed 350%.
Position: TI/NW = %
---------
112
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
Interest The ratio of OCF to Interest Expense ("IE")
Coverage: at the end of each quarter will not be less
than 2.25 to 1.0 (200%).
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 as defined in Section 4 of
the Agreement; or
(ii) a default under Section 6.1(j) regarding a change
in ownership or control of the Company.
Name of Borrower: Data Transmission Network Corporation
Signature:
-------------------------------------
Title: -------------------------------------
4266J/39-41
113
SCHEDULE A
TO 1995 RESTATED LOAN AGREEMENT
BETWEEN
FIRST NATIONAL BANK OF OMAHA,
FIRSTIER BANK, NATIONAL ASSOCIATION, LINCOLN, NEBRASKA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS,
AGAMERICA, FCB
AND
DATA TRANSMISSION NETWORK CORPORATION
EXISTING TERM NOTES
Balance as of Maturity
Bank Date June 30, 1995 Rate Date
---- ---- ---------------- ---- ------
FNB-O 01/15/92 $ 41,562.50 7.25% 12/30/95
02/04/92 190,000.00 7.25 01/30/96
03/03/92 106,875.00 7.25 02/29/96
05/06/92 65,312.50 7.25 04/30/96
07/07/92 154,375.00 6.75 06/30/96
10/01/92 190,000.00 6.75 09/30/96
10/12/92 95,000.00 6.75 09/30/96
10/13/92 356,250.00 7.50 10/12/97
10/19/92 95,000.00 6.75 09/30/96
11/03/92 100,937.50 6.75 10/30/96
12/07/92 356,250.00 8.14 12/06/97
01/04/93 102,916.57 6.75 12/30/96
02/09/93 108,333.24 6.75 01/30/97
04/16/93 227,500.09 6.75 03/30/97
07/08/93 281,666.74 6.75 06/30/97
08/30/94 4,431,750.00 8.00 07/30/98
11/29/94 1,328,229.12 8.50 10/30/98
02/27/95 641,437.48 9.25 01/30/99
NBD 01/04/93 $ 41,562.50 6.75 12/30/96
02/09/93 43,750.00 6.75 01/30/97
04/16/93 96,250.00 6.75 03/30/97
07/08/93 109,375.00 6.75 06/30/97
08/30/94 2,650,500.00 8.00 07/30/98
11/29/94 794,375.00 8.50 10/30/98
02/27/95 383,625.00 9.25 01/30/99
Norwest 08/30/94 $2,508,000.00 8.00 07/30/98
11/29/94 751,666.62 8.50 10/30/98
02/27/95 363,000.00 9.25 01/30/99
114
Balance as of Maturity
Bank Date June 30, 1995 Rate Date
---- ---- ---------------- ---- ------
Boatmen's 08/30/94 $1,866,750.00 8.00 07/30/98
11/29/94 559,479.12 8.50 10/30/98
02/27/95 270,187.48 9.25 01/30/99
FirsTier
Lincoln 01/15/92 $ 29,166.53 7.25 12/30/95
02/04/92 133,333.20 7.25 01/30/96
03/03/92 74,999.85 7.25 02/29/96
05/06/92 45,833.21 7.25 04/30/96
07/07/92 108,333.17 6.75 06/30/96
10/01/92 133,333.21 6.75 09/30/96
10/12/92 66,666.56 6.75 09/30/96
10/13/92 250,000.00 7.50 10/12/97
10/19/92 66,666.56 6.75 09/30/96
11/03/92 70,833.23 6.75 10/30/96
12/07/92 250,000.00 8.14 12/06/97
01/04/93 49,479.07 6.75 12/30/96
02/09/93 52,083.24 6.75 01/30/97
04/16/93 114,583.42 6.75 03/30/97
07/08/93 130,208.41 6.75 06/30/97
08/30/94 2,650,500.00 8.00 07/30/98
11/29/94 794,375.00 8.50 10/30/98
02/27/95 383,625.00 9.25 01/30/99
FNB-W 01/15/92 $ 2,187.50 7.25 12/30/95
02/04/92 10,000.00 7.25 01/30/96
03/03/92 5,625.00 7.25 02/29/96
05/06/92 3,437.50 7.25 04/30/96
07/07/92 8,125.00 6.75 06/30/96
10/01/92 10,000.00 6.75 09/30/96
10/12/92 5,000.00 6.75 09/30/96
10/13/92 18,750.00 7.50 10/12/97
10/19/92 5,000.00 6.75 09/30/96
11/03/92 5,312.50 6.75 10/30/96
12/07/92 18,750.00 8.14 12/06/97
01/04/93 3,958.43 6.75 12/30/96
02/09/93 4,166.76 6.75 01/30/97
04/16/93 9,166.58 6.75 03/30/97
07/08/93 10,416.59 6.75 06/30/97
08/30/94 142,500.00 8.00 07/30/98
11/29/94 42,708.31 8.50 10/30/98
02/27/95 20,625.00 9.25 01/30/99
Notwithstanding any definition of "Existing Term Notes" to the contrary
in the 1995 Restated Loan Agreement, the Notes issued thereunder or the First
Amendment to Restated Security Agreement, no "Existing Term Notes" were issued
on December 31, 1992.
4266J/42-43
115
SCHEDULE B
TO 1995 RESTATED LOAN AGREEMENT
BETWEEN
FIRST NATIONAL BANK OF OMAHA,
FIRSTIER BANK, NATIONAL ASSOCIATION, LINCOLN, NEBRASKA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS,
AGAMERICA, FCB
AND
DATA TRANSMISSION NETWORK CORPORATION
PERMITTED ENCUMBRANCES
Secured Party Financing Statements
NEBRASKA SECRETARY OF STATE
First National Bank of Omaha 12/28/87 #401690
10/13/92 #564918 Amendment
11/13/92 #568176 Continued
FirsTier, Lincoln 6/24/87 #384782
First National Bank of Omaha 2/03/88 #405477 Amendment
First National Bank, Wahoo 5/28/92 #553205 Continued
NBD, Detroit 10/13/92 #564919 Amendment
2/05/93 #576038 Amendment
11/10/93 #603168 Amendment
FirsTier, Lincoln 2/10/88 #406144
First National Bank of Omaha 10/13/92 #564917 Amendment
First National Bank, Wahoo 1/07/93 #572981 Continued
NBD, Detroit 2/05/93 #576039 Amendment
11/10/93 #603169 Amendment
First Bank of Minneapolis 11/25/91 #534665
(Norstan) 8/24/92 #561090 Assignment
XXXXXXX COUNTY CLERK, NEBRASKA
FirsTier, Lincoln 2/11/88 #000534
First National Bank of Omaha 10/15/92 #000534 Amendment
First National Bank, Wahoo 1/08/93 #0000054 Continued
NBD, Detroit 2/05/93 #000253 Amendment
11/17/93 #54 Amendment
116
Secured Party Financing Statements
IOWA SECRETARY OF STATE
FirsTier, Lincoln 2/10/88 H842023
First National Bank of Omaha 10/15/92 K395184 Amendment
First National Bank, Wahoo 1/08/93 K424887 Continued
NBD, Detroit 2/08/93 K434908 Amendment
11/15/93 K503145 Amendment
KANSAS SECRETARY OF STATE
FirsTier, Lincoln 2/10/88 #1286572
First National Bank of Omaha 10/15/92 #1842986 Amendment
First National Bank, Wahoo 1/08/93 #1868482 Continued
NBD, Detroit 2/11/93 #1879069 Amendment
11/12/93 #1964342 Amendment
ILLINOIS SECRETARY OF STATE
FirsTier, Lincoln 3/18/88 #2402370
First National Bank of Omaha 10/21/92 #3043202 Amendment
First National Bank, Wahoo 2/11/93 #3084199 Amendment
NBD, Detroit 2/25/93 #3089132 Continued
12/09/93 #3197498 Amendment
MICHIGAN SECRETARY OF STATE
FirsTier, Lincoln 2/12/88 #C034473
First National Bank of Omaha 10/16/92 #C646856 Amendment
First National Bank, Wahoo 1/08/93 #C672590 Continued
NBD, Detroit 3/01/93 #C689434 Amendment
11/15/93 #C778208 Amendment
WISCONSIN SECRETARY OF STATE
FirsTier, Lincoln 2/18/88 #968701
First National Bank of Omaha 10/21/92 #1309942 Amendment
First National Bank, Wahoo 01/15/93 #1326550 Continued
NBD, Detroit 2/08/93 #1331412 Amendment
11/23/93 #1393268 Amendment
INDIANA SECRETARY OF STATE
FirsTier, Lincoln 2/11/88 #1454192
First National Bank of Omaha 10/21/92 #1808780 Amendment
First National Bank, Wahoo 1/11/93 #1822115 Continued
NBD, Detroit 2/08/93 #187451 Amendment
11/12/93 #1878806 Amendment
117
Secured Party Financing Statements
MINNESOTA SECRETARY OF STATE
FirsTier, Lincoln 2/17/88 1#121648#00
First National Bank of Omaha 10/16/92 #1537269 Amendment
First National Bank, Wahoo 01/19/93 #1557397 Continued
NBD, Detroit 2/08/93 #1562125 Amendment
11/23/93 #1632156 Amendment
SOUTH DAKOTA SECRETARY OF STATE
FirsTier, Lincoln 2/10/88 880410802864
First National Bank of Omaha 10/16/92 #22901003596 Amend.
First National Bank, Wahoo 1/08/93 #30081001734 Cont.
NBD, Detroit 2/09/93 #30391203308 Amend.
11/22/93 #33261003899 Amend.
MISSOURI SECRETARY OF STATE
FirsTier, Lincoln 2/11/88 #1555991
First National Bank of Omaha 10/16/92 #2184193 Amendment
First National Bank, Wahoo 1/08/93 #2212473 Continued
NBD, Detroit 2/08/93 #2224113 Amendment
11/15/93 #2331876 Amendment
OHIO SECRETARY OF STATE
FirsTier, Lincoln 2/12/88 #Y00095612
First National Bank of Omaha 10/19/92 #01097336 Amendment
First National Bank, Wahoo 1/11/93 #01119343901 Cont.
NBD, Detroit 2/09/93 #02099338901 Amend.
11/12/93 #0000000000 Amendment
KENTUCKY SECRETARY OF STATE
First National Bank of Omaha 11/12/93 134318
PENNSYLVANIA DEPARTMENT OF STATE
First National Bank of Omaha 11/12/93 22571277
OKLAHOMA SECRETARY OF STATE
First National Bank of Omaha 11/12/93 059782
118
MISSISSIPPI SECRETARY OF STATE
First National Bank of Omaha 11/12/93 0756092--
COLORADO SECRETARY OF STATE
First National Bank of Omaha 11/12/93 932082461
CALIFORNIA SECRETARY OF STATE
First National Bank of Omaha 11/12/93 93229491
WASHINGTON SECRETARY OF STATE
First National Bank of Omaha 11/15/93 933190075
MONTANA SECRETARY OF STATE
First National Bank of Omaha 11/15/93 419540
ARIZONA SECRETARY OF STATE
First National Bank of Omaha 11/15/93 765359
NORTH CAROLINA SECRETARY OF STATE
First National Bank of Omaha 11/15/93 050742
NORTH DAKOTA SECRETARY OF STATE
First National Bank of Omaha 11/16/93 93-380331
FLORIDA SECRETARY OF STATE
First National Bank of Omaha 11/17/93 930000236992
TEXAS SECRETARY OF STATE
First National Bank of Omaha 11/29/93 227591--
4266J/44-47
119
