FOURTH AMENDMENT TO 1997 REVOLVING CREDIT AGREEMENT
THIS FOURTH AMENDMENT to 1997 REVOLVING CREDIT AGREEMENT (the "Fourth
Amendment") is intended to amend the terms of the 1997 Revolving Credit
Agreement (the "Agreement") dated as of February 26, 1997, as previously
amended, among DATA TRANSMISSION NETWORK CORPORATION; FIRST NATIONAL BANK OF
OMAHA; FIRST NATIONAL BANK, WAHOO, NEBRASKA; NBD BANK, N.A.; NORWEST BANK
NEBRASKA, N.A.; THE SUMITOMO BANK, LIMITED; MERCANTILE BANK OF ST. LOUIS, N.A.;
U.S. BANK, NATIONAL ASSOCIATION (formerly known as First Bank, National
Association); BANK OF MONTREAL; LASALLE NATIONAL BANK; and NATIONSBANK, N.A.
(successor to THE BOATMEN'S NATIONAL BANK OF ST. LOUIS). All terms and
conditions of the Agreement shall remain in full force and effect except as
expressly amended herein. All capitalized terms herein shall have the meanings
prescribed in the Agreement. The Agreement shall be amended as follows:
1. The definitions in Article I of the Agreement are amended as follows:
Lenders: FNB-O, FNB-W, NBD, Norwest, LaSalle, Mercantile, U.S. Bank,
Montreal and Nationsbank, in their capacity as Revolving Lenders
under this Agreement, the Term Lenders, lenders of the Related
Bank Debt, Nationsbank, as successor in interest to 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.
Revolving FNB-O, FNB-W, NBD, Norwest, LaSalle, Mercantile, U.S. Bank,
Lenders: Montreal and Nationsbank, 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.
2. The following shall be added to the definitions in Article I of the
Agreement:
Nationsbank: Nationsbank, N.A., a national banking association, having an
office at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xx. Xxxxx, Xxxxxxxx
00000-0000, and its successors and assigns.
U.S Bank: U.S. Bank, formerly known as First Bank, a national banking
association having its principal place of business at 13th and X
Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000, and its successors and
assigns.
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3. Section 2.1 of the Agreement is hereby amended to read as follows:
2.1 Revolving Credit. Until the earlier of June 30, 2000, or the date
on which the loan hereunder is converted to a term loan in accordance
with Section 2.4, the Revolving Lenders severally agree to advance
funds for general corporate purposes not to exceed $65,000,000 (the
"Base Revolving Credit Facility") to the Borrower on a revolving credit
basis (amounts outstanding under the Acquisition Notes, Existing Term
Notes and Related Bank Debt shall not be counted against such Base
Revolving Credit Facility limit). Such Advances shall be made on a pro
rata basis by the Revolving Lenders, based on the following maximum
advance limits and applicable percentages for each Revolving Lender:
(i) as to FNB-O, $13,000,000 (20.0%); (ii) as to FNB-W, $325,000
(.50%); (iii) as to NBD, $2,015,000 (3.1%); (iv) as to Norwest,
$6,500,000 (10.0%); (v) as to LaSalle, $8,320,000 (12.8%); (vi) as to
Nationsbank, $8,515,000 (13.1%); (vii) as to Mercantile, $11,245,000
(17.3%), (viii) as to U.S. Bank, $8,515,000 (13.1%); and (ix) as to
Montreal, $6,565,000 (10.1%). The Borrower shall not be entitled to any
Advance hereunder if, after the making of such Advance, the Leverage
Ratio would exceed thirty-six (36), determined at the time of the
Advance. Nor shall the Borrower be entitled to any further Advances
hereunder after the occurrence of a material adverse change in its
management personnel, as described in Section 4.14(b), or after the
occurrence of any Event of Default with respect to the Borrower.
Advances shall be made, on the terms and conditions of this Agreement,
upon the Borrower's request. Requests shall be made by 12:00 noon Omaha
time on the Business Day prior to the requested date of the Advance.
Requests shall be made by presentation to FNB-O of a drawing
certificate in the form of Exhibit B. The Borrower's obligation to make
payments of principal and interest on the foregoing revolving credit
indebtedness shall be further evidenced by the Revolving Credit Notes.
4. Section 2.5 of the Agreement is hereby amended to read as follows:
2.5 Interest on Converted Notes. After Conversion, interest shall
accrue on the Principal Loan Amount outstanding on the respective
Converted Note from time to time at a variable rate, which shall
fluctuate on a monthly basis, which is equal to the Revolving Credit
Rate plus one quarter of one percent (.25%). For purposes of computing
such variable rate, changes in the Base Rate shall be effective on the
first day of each month based on the Base Rate in effect on such day.
Notwithstanding anything in the foregoing to the contrary, after
Conversion, the Borrower may elect to have a fixed interest rate apply
to the outstanding Principal Loan Amount converted and outstanding
after the date of giving notice of such fixed rate election (the "Fixed
Rate Notice"). Such fixed rate shall be the greater of:
(a) the Revolving Credit Rate in effect on the date of the notice1,
plus three-eighths of one percent (.375%), or
(b) the average of the yields on constant maturity Treasury Bonds
with maturities of three (3) years and five (5) years, as quoted
in the immediately preceding monthly Release for the month
preceding such Release, plus the incremental percentage shown
below:
Leverage Ratio1 Incremental %
Greater than 36 2.25%
Greater than 24 but
not in excess of 36 2.00%
24 or less 1.75%
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Any election of a fixed rate by the Borrower shall be final and
irrevocable. Interest shall be due each month concurrently with the
Borrower's principal payment. Notwithstanding anything to the contrary
elsewhere herein, after an Event of Default has occurred interest shall
accrue on the entire outstanding balance of principal and interest on all
indebtedness hereunder at a fluctuating rate equal to the Default Rate. All
interest due under this Agreement shall be calculated on the basis of the
actual number of days outstanding and a 360-day year. Interest shall
continue to accrue on the full unpaid balance of all indebtedness hereunder
notwithstanding any permitted or unpermitted failure of the Borrower to
make a scheduled payment or the fact that a scheduled payment day falls on
a day other than a Business Day. If the Borrower's most recent Quarterly
Compliance Certificate shows that, as of the end of the prior quarter, the
Leverage Ratio was at such date more than thirty-six (36), the current
quarter shall be deemed a "Restricted Quarter." If, any time during a
Restricted Quarter (including, without limitation, during any period in
such quarter prior to delivery of the Quarterly Compliance Certificate),
the interest rate accruing on any Existing Term Note or Converted Note is
less than seven and one-half percent (7.50%) per annum, a "Trigger Event"
shall be deemed to have occurred. Upon the occurrence of a Trigger Event,
the Borrower shall be obligated to pay the following fees: (i)
three-eighths of one percent (.375%) of the outstanding principal balance
as of the date preceding the Trigger Event of each Existing Term Note or
Converted Note which accrues interest at less than seven and one-half
percent (7.50%) per annum, which amount shall be payable promptly upon
invoicing by FNB-O; (ii) the same amount as computed in clause (i), payable
on the six (6) month anniversary of the Trigger Event; and (iii) the same
amount as computed in clause (i), payable on the twelve (12) month
anniversary of the Trigger Event.
-----------------
1 Determined based on the Leverage Ratio calculated on the Total Indebtedness
and Operating Cash Flow as ofthe last day of the preceding month, adjusted to
show any increases in teh Leverage Ratio as a result of additional Total
Indebtedness incurred (reduced by any principal payments on such Total
Indebtedness) during the quarter in which the rate is being fixed as described
above.
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5. Section 4.4 (a) is hereby amended to read as follows:
(a) The Borrower shall not at any time permit the Leverage Ratio to
exceed forty-eight (48).
6. Section 4.19 is hereby amended to read as follows:
4.19 Capital Expenditures. The Borrower shall not incur in any fiscal
year, commencing with the fiscal year beginning January 1, 1998,
capital expenditures, determined in accordance with generally accepted
accounting principles, of more than $2,000,000; provided, however, that
capital expenditures for (a) equipment to be used by Subscribers of the
Borrower, and (b) telecommunication equipment, computer equipment,
software, and software consulting shall not be counted for purposes of
this annual limitation.
7. Section 4.20 is hereby amended to read as follows:
4.20 Acquisitions. The Borrower shall not acquire any stock or any
equity interest in, or warrants therefor or securities convertible into
the same, or a substantial portion of the assets of, another entity
without the prior written consent of the Revolving Lenders; provided,
however, that the Borrower shall be permitted to make on a cumulative
basis from and after July 1, 1998, such acquisitions in an amount not
to exceed Twenty Million Dollars ($20,000,000) in the aggregate without
the consent of the Revolving Lenders if:
(a) such acquisitions are in or from entities which:
(i) are in the business of electronically communicating
time-sensitive information to subscribers;
(ii) have their principal place of business in the United States or
Canada; and
(iii) have a positive operating cash flow, calculated in the same
method as is used to calculate the Borrower's Operating Cash
Flow for purposes of this Agreement; and
(b) the Borrower or any Subsidiary is not, and immediately after
making such acquisition, will not be in default under any
covenant or provisions of this Agreement (including, without
limitation, the covenants and provisions pertaining to minimum
net worth and limitations on indebtedness); and
(c) no one acquisition exceeds Ten Million Dollars ($10,000,000).
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8. Exhibits A, B and C are hereby amended to read as shown on the attached
Exhibits A, B and C to this Fourth Amendment.
9. All references to June 30, 1999, in the Agreement shall be amended to
read June 30, 2000.
10. Effective as of May 15, 1998, the Borrower shall issue new Notes in the
form specified in Exhibit A hereto to the Revolving Lenders. On such
date, the Revolving Lenders shall either lend, or be repaid, the
principal amounts shown on Exhibit D hereof, so that the principal
amounts outstanding on the Base Revolving Credit Facility will match
the percentages shown for each Revolving Lender in Section 2.1 of the
Agreement as amended by this Fourth Amendment. Upon the delivery of the
new Notes, the existing Revolving Credit Lenders will cancel and will
return to the Borrower the existing Revolving Credit Notes. Effective
as of May 15, 1998, The Sumitomo Bank, Limited will cease to be a
Revolving Lender. On such date, the Borrower shall repay to The
Sumitomo Bank, Limited the principal amount shown on Exhibit D hereto
and shall pay all accrued interest and any other amounts then due and
payable to The Sumitomo Bank, Limited. Upon receipt of such amounts
from or on behalf of the Borrower, The Sumitomo Bank, Limited will
cancel and return to the Borrower its Revolving Credit Note.
11. In connection with this Fourth Amendment the Borrower is
contemporaneously executing and delivering to the Banks revised Notes
dated as of the date hereof in the respective principal amounts shown
in Section 3 above.
12. This Fourth Amendment shall not affect and there remain outstanding
from the Borrower to the Banks, the Existing Term Notes and the Related
Bank Debt.
13. This Fourth Amendment may be executed in several counterparts and such
counterparts together shall constitute one and the same instrument.
Except as expressly agreed herein, all terms of the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this FOURTH AMENDMENT
TO 1997 REVOLVING CREDIT AGREEMENT dated as of May 15, 1998.
DATA TRANSMISSION NETWORK CORPORATION
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Title: Vice President, Secretary &
Treasurer
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FIRST NATIONAL BANK OF OMAHA
By /s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx
Title: Vice President
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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THE SUMITOMO BANK, LIMITED
By /s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx
Title: Sr. Vice President
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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FIRST NATIONAL BANK, WAHOO,
NEBRASKA
By /s/ Xxxxxxxxx Xxxxx
-------------------------------
Xxxxxxxxx Xxxxx
Title: Second Vice President
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Xxxxxxxx
0
- 000 -
XXX XXXX
By
-------------------------------
Title:
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Xxxxxxxx
0
- 000 -
XXXXXXX XXXX NEBRASKA, N.A.
By /s/ Xxxxx Xxxxx
-------------------------------
Xxxxx Xxxxx
Title: Vice President
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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LASALLE NATIONAL BANK, a national
banking association
By /s/ Xxx Xxxxxx
-------------------------------
Xxx Xxxxxx
Title: Assistant Vice President
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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MERCANTILE BANK OF
ST. LOUIS, N.A.
By /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------
Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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U.S. BANK, NATIONAL ASSOCIATION
By /s/ Xxxx Xxxxxx
-------------------------------
Xxxx Xxxxxx
Title: Vice President
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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NATIONSBANK, N.A.
By
-------------------------------
Title:
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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BANK OF MONTREAL,
Chicago Branch
By /s/ X. X. Xxxxxx
-------------------------------
X. X. Xxxxxx
Title: Director
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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EXHIBIT A
TO 1997 REVOLVING CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
NATIONSBANK, N.A.,
MERCANTILE BANK OF ST. LOUIS, N.A.,
U.S. BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL
AND
LASALLE NATIONAL BANK
FORM OF NOTES
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SECURED BUSINESS PROMISSORY NOTE
Omaha, Nebraska $
, 19 June 30, 2000
----------------- ---- ------------------
(Note Date) (Maturity Date)
REVOLVING NOTE TERMS
On or before June 30, 2000, DATA TRANSMISSION NETWORK CORPORATION ("Maker")
promises to pay to the order of [REVOLVING LENDER] ("Lender") the principal sum
hereof, which shall be the lesser of Dollars, or so much
thereof as may have been advanced by Lender, either directly under this Note or
as an advance pursuant to the 1997 Revolving Credit Agreement dated as of
February 26, 1997, 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., LaSalle National Bank, Nationsbank, N.A.,
Mercantile Bank of St. Louis, N.A., Bank of Montreal, and U.S. 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 a margin as determined below. The margin shall be
adjusted quarterly after receipt of Maker's Quarterly Compliance Certificate (as
defined in the Agreement), commencing with the Quarterly Compliance Certificate
for the quarter ended June 30, 1998. Adjustments shall be retroactive to the
beginning of the current quarter.
(a) If the Quarterly Compliance Certificate shows that, as of the end
of the prior quarter, the Leverage Ratio was greater than 42, the margin
for the current quarter (meaning the quarter in which the certificate is
required to be delivered) shall be .25%.
(b) If the Quarterly Compliance Certificate shows that, as of the end
of the prior quarter, the Leverage Ratio was greater than 36 but equal to
or less than 42, the margin for the current quarter shall be .50%.
(c) If the Quarterly Compliance Certificate shows that, as of the end
of the prior quarter, the Leverage Ratio was greater than 30 but equal to
or less than 36, the margin for the current quarter shall be .75%.
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(d) If the Quarterly Compliance Certificate shows that, as of the end
of the prior quarter, the Leverage Ratio was greater than 24 but equal to
or less than 30, the margin for the current quarter shall be 1.00%.
(e) If the Quarterly Compliance Certificate shows that, as of the end
of the prior quarter, the Leverage Ratio was greater than 18 but equal to
or less than 24, the margin for the current quarter shall be 1.25%.
(f) If the Quarterly Compliance Certificate shows that, as of the end
of the prior quarter, the Leverage Ratio was equal to or less than 18, the
margin for the current quarter shall be 1.375%.
The Base Rate minus the applicable margin as determined above is hereinafter
referred to as the "Revolving Credit Rate." Changes in the Base Rate shall be
effective on the first day of each month, based on the Base Rate in effect as of
such day. Interest shall be due upon the rendering of each monthly invoice
therefor by FNB-O.
TERM NOTE TERMS
Upon the earlier of: (i) June 30, 2000; or (ii) Maker's giving notice of
its election to convert the revolving credit loan evidenced by this Note, or any
portion thereof, to a term loan, the revolving loan referenced above (or
applicable portion thereof) shall be deemed converted to a term loan (the
"Conversion"). Any such term loan shall be evidenced by notes (the "Converted
Notes") separate from the initial Revolving Credit Notes. Upon the issuance of
Converted Notes, the Revolving Credit Facility shall be reduced by the principal
amount of such Converted Notes and no further Advances shall be made by the
Revolving Lenders on the converted amount. The then outstanding principal
hereunder shall become due and payable in forty-eight equal installments of
principal, with the first such installment due on the last day of the month
following Conversion, or, if such day is not a Business Day, on the next
succeeding Business Day, subsequent installments due on the last day of each
consecutive month thereafter. In any event, the total amount of all unpaid
principal and accrued interest hereunder shall be due and payable no later than
June 30, 2004.
After Conversion, interest shall accrue on the principal outstanding from
time to time at a variable rate, which shall fluctuate on a monthly basis, which
is equal to the Revolving Credit Rate plus .25%. For purposes of computing such
variable rate, changes in the Base Rate shall be effective on the first day of
each month based on the Base Rate in effect on such day. Notwithstanding
anything in the foregoing to the contrary, after Conversion, Maker may elect to
have a fixed interest rate apply to the outstanding Principal Loan Amount
converted and outstanding after the date of giving notice of such fixed rate
election (the "Fixed Rate Notice"). Such fixed rate shall be equal to the
greater of:
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(a) the Revolving Credit Rate in effect on the date of the notice2,
plus .375%, or
(b) the average of the yields on constant maturity Treasury Bonds with
maturities of three years and five years, as quoted in the immediately
preceding monthly Federal Reserve Statistical Release (the "Release") plus
the following incremental percentage determined based upon the Leverage
Ratio3: (x) if the Leverage Ratio is greater than 36, the incremental
percentage shall be 2.25%; (y) if the Leverage Ratio is greater than 24 but
not in excess of 36, the incremental percentage shall be 2.00%; and (z) if
the Leverage Ratio is 24 or less, the incremental percentage should be
1.75%;
Any election of a fixed rate by Maker shall be final and irrevocable. Interest
shall be due each month concurrently with the Maker's principal payment.
Notwithstanding anything to the contrary elsewhere herein, after an Event of
Default has occurred interest shall accrue on the entire outstanding balance of
principal and interest at a fluctuating rate equal to the Default Rate. Interest
shall be calculated on the basis of the actual number of days outstanding and a
360-day year. Interest shall continue to accrue on the full unpaid balance
hereunder notwithstanding any permitted or unpermitted failure of Maker to make
a scheduled payment or the fact that a scheduled payment day falls on a day
other than a Business Day. If Maker's most recent Quarterly Compliance
Certificate shows that, as of the end of the prior quarter, the Leverage Ratio
was in excess of thirty-six (36), 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.
2 Determined based on the Leverage Ratio calculated on the Total Indebtedness
and Operating Cash Flow as of the last day of the preceding month, adjusted to
show any increases in the Leverage Ratio as a result of additional Total
Indebtedness incurred (reduced by any principal payments on such Total
Indebtedness) during the quarter in which the rate is being fixed as described
above .
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Maker may at any time prepay in whole or in part the Principal Loan Amount
outstanding under this Revolving Credit Note or a Converted Note if the Maker
has given the Revolving Lenders at least two (2) business days prior written
notice of its intention to make such prepayment. Any such prepayment may be made
without penalty except for a Converted Note as to which interest is accrued at a
fixed rate in accordance with clause (a) or (b) above, in which event a
prepayment penalty shall be due to the Lender, at Lender's option, either: (1)
the Make-Whole Premium due in respect of such prepayment; or (2) the applicable
prepayment fee as set forth below. The applicable prepayment fee for any
Converted Note shall be: (i) if the notice electing fixed interest was given
within twelve (12) months of Conversion, the fee shall be 1.50% of the amount of
such prepayment; (ii) if the notice electing fixed interest was given after
twelve (12) months of Conversion, but within twenty-four (24) months of
Conversion, the fee shall be .75% of the amount of such prepayment; and (iii) if
the notice electing fixed interest was given after twenty- four (24) months of
Conversion, but within thirty-six (36) months of Conversion, the fee shall be
.30% of the amount of such prepayment.
GENERAL TERMS
Payment of this Note and the performance of Maker's obligations under the
Agreement ("Obligations") are secured by a security interest granted to First
National Bank of Omaha, as agent for the Lenders and others ("Agent"), under the
Security Agreement in:
All of Maker's accounts, accounts receivable, chattel paper, documents,
instruments, goods, inventory, equipment, general intangibles, contract
rights, all rights of Maker in deposits and advance payments made to
Maker by its customers and Subscribers, accounts due from advertisers
and all ownership, proprietary, copyright, trade secret and other
intellectual property rights in and to computer software (and
specifically including, without limitation, all such rights in DTN
transmission computer software used in the provision of the Basic DTN
Subscription Service and Farm Dayta Service to Maker's Subscribers) and
all documentation, source code, information and works of authorship
pertaining thereto, all now owned or hereafter acquired and all
proceeds and products thereof; and
such additional collateral as is more specifically described in the
Security Agreement.
Maker's liability under its Obligations shall not be affected by any of the
following:
Acceptance or retention by Lender or Agent of other property or interests
as security for the Obligations, or for the liability of any person other
than a Maker with respect to the Obligations;
The release of all or any of the Collateral or other security for any of
the Obligations to any Maker;
20
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Any release, extension, renewal, modification or compromise of any of the
Obligations or the liability of any obligor thereon; or
Failure by Lender or Agent to resort to other security or any person liable
for any of the Obligations before resorting to the Collateral.
Neither Lender nor Agent is required to take any action whatsoever in
respect of the Collateral. Impairment or destruction of the Collateral shall not
release Maker of its liability hereunder.
Maker represents, warrants and covenants as follows:
Maker is authorized to grant to Agent a security interest in the
Collateral;
This Note, the Agreement and the Security Agreement have been duly
authorized, executed and delivered by the Maker and constitute legal,
valid and binding obligations of Maker;
This Note evidences a loan for business or agricultural purposes; and
Maker agrees to pay all costs of collection in connection with this
Note, the Agreement and the Security Agreement, including reasonable
attorneys' fees and legal expenses.
Upon the failure of Maker to make any payment of principal or interest when
due hereunder or the occurrence of any Event of Default, all of the Obligations
shall, at the option of Agent and without notice or demand, mature and become
immediately due and payable; and Agent shall have all rights and remedies for
default provided by the Uniform Commercial Code, any other applicable law and/or
the Obligations.
All costs and expenses incurred by Lender or Agent in enforcing its rights
under this Note or any mortgage, endorsement, surety agreement, guaranty
relating thereto are the obligation of Maker and are immediately due and
payable. Interest shall accrue on such costs and expenses from the date of
incurrence at the rate specified herein for delinquent Note payments. Each
Maker, endorser, surety and guarantor hereby waives presentment, protest,
demand, notice of dishonor, and the defense of any statute of limitations.
Without affecting the liability of any Maker, endorser, surety or
guarantor, the holder or Agent may, without notice, renew or extend the time for
payment, accept partial payments, release or impair any Collateral or other
security for the payment of this Note or agree to xxx any party liable on it.
Neither Lender nor Agent shall be deemed to have waived any of its rights
upon or under this Note, or under any mortgage, endorsement, surety agreement or
guaranty, unless such waivers be in writing and signed by Lender or Agent, as
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.
21
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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 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 June 30, 1997, in the original principal amount of
$____________. This Note shall not affect, and there remains outstanding from
the Maker to one or more of the Lenders the Related Bank Debt, certain Secured
Business Promissory Notes issued under the Term Agreement, and certain Converted
Notes, and all extensions, renewals, and substitutions of or for the foregoing.
Executed as of this _____ day of _____________, _____.
DATA TRANSMISSION NETWORK CORPORATION
By:
------------------------------
Title:
22
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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
---- ---------- -------------- ------------- --------- --------
23
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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 Payment or Prepaid Interest Paid Balance Made By
---- ---------- -------------- ------------- --------- --------
24
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EXHIBIT B
TO 1997 REVOLVING CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
NATIONSBANK, N.A.,
MERCANTILE BANK OF ST. LOUIS, N.A.,
U.S. BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL
AND
LASALLE NATIONAL BANK,
DRAWING CERTIFICATE
25
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DRAWING CERTIFICATE
DATA TRANSMISSION NETWORK CORPORATION
To induce the First National Bank of Omaha, First National Bank, Wahoo,
Nebraska, NBD Bank, Norwest Bank Nebraska, N.A., LaSalle National Bank,
Nationsbank, N.A., Mercantile Bank of St. Louis, N.A., U.S. Bank, National
Association, and Bank of Montreal (the "Revolving Lenders") to make an advance
under the 1997 Revolving Credit Agreement (the "Agreement") dated as of February
26, 1997, between the undersigned (the "Borrower"), Nationsbank, N.A. as the
successor in interest to The Boatmen's National Bank of St. Louis ("Boatmen's),
and the Revolving Lenders (as to Boatmen's and the Revolving Lenders together,
(the "Banks"), the Borrower hereby certifies to the Banks that its Operating
Cash Flow (as defined in the Agreement) as represented below is true and correct
and that there is no default under the aforementioned Agreement, or on any other
liability of the Borrower to the Banks.
All information as of: Date
a) Maximum Revolving Credit Facility $
b) Principal on Converted Notes,
Acquisition Notes, Existing Term Notes,
and Related Bank Debt Outstanding $
c) Principal on Revolving Credit $
d) ADVANCE REQUEST $
e) Total Proposed Bank Debt
(line b + line c + line d, but $
not to exceed line a)
f) Most recent month's operating cash flow $
g) Prior month's operating cash flow $
h) Operating Cash Flow
(average of line f and line g) $
i) Total Indebtedness $
j) Leverage Ratio (line i divided by line h), not to exceed
36 $
Name of Borrower: Data Transmission Network Corporation
Signature:
Title:
26
- 482 -
EXHIBIT C
TO 1997 REVOLVING CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
NATIONSBANK, N.A.,
MERCANTILE BANK OF ST. LOUIS, N.A.,
U.S. BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL
AND
LASALLE NATIONAL BANK
OFFICER'S CERTIFICATE
27
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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 1997 Revolving Credit Agreement (the "Agreement")
dated as of February 26, 1997, between First National Bank of Omaha, First
National Bank, Wahoo, Nebraska, NBD Bank, Norwest Bank Nebraska, N.A., LaSalle
National Bank, Nationsbank, N.A., Mercantile Bank of St. Louis, N.A., U.S. Bank,
National Association, and Data Transmission Network Corporation.
The following calculations are as of _____ (statement date) as required by
Section 4.1(d) of said Agreement:
Evaluations:
Total Indebtedness (TI):
Operating Cash Flow: most recent month previous month
ending ending
------------------ ------------------
Net Income (loss)
---------- ----------
Interest Expense
---------- ----------
Depreciation
---------- ----------
Amortization
---------- ----------
Deferred Income
Taxes ---------- ----------
Non-Ordinary
Non-Cash
Charges (Credits)
---------- ----------
Total a) b)
---------- ----------
Operating Cash Flow = OCF = (a+b)/2 =
---------
Leverage Ratio (TI/OCF):
Section 2.3
Pricing: If the Leverage Ratio is greater than 42 then the margin is
.25%. If the Leverage Ratio is greater than 36 but equal to
or less than 42 then the margin is .50%. If the Leverage
Ratio is greater than 30 but equal to or less than 36 then
the margin is .75%. If the Leverage Ratio is greater than 24
but equal to or less than 30 then the margin is 1.00%. If the
Leverage Ratio is greater than 18 but equal to or less than
24 then the margin is 1.25%. If the Leverage Ratio is equal
to or less than 18 then the margin is 1.375%.
Position: The Revolving Credit Rate is the Base Rate minus _________
28
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Section 2.5
Trigger Fee: If the Leverage Ratio is more than 36, then a one time
fee, paid in three installments of 3/8% of the then
outstanding principal balances, on any of the Existing Term
Notes, Acquisition Notes or Converted Notes which have an
interest rate less than 7.5% per annum is due.
Position: A Trigger Event has/has not occurred.
Section 4.3
Net Worth:A minimum Net Worth (exclusive of subordinated debt) of
$23,500,000 plus fifty percent (50%) of the net income (but
not losses) of the Borrower for each fiscal year, commencing
with the fiscal year beginning January 1, 1997; provided,
however, solely for purposes of determining compliance with
the provisions of this Section 5.3, "Net Worth" shall not
include any subordinated debt.
Minimum Net Worth (exclusive of subordinated debt)=
$23,500,000.
Net Income Year ending Addition (50%)
$____________ 12/31/97 $___________
Total Minimum Net
Worth $
Position: Total Net Worth (exclusive of subordinated debt) = $_____________
The Borrower [is/is not] in compliance with Section 4.3.
Section 4.4
Indebtedness: At no time will the Leverage Ratio exceed 48
Position: Leverage Ratio =
Total
Indebtedness
plus
subordinated
debt plus
guaranty
contingencies
(Adjusted
Total
Indebtedness or
ATI):4 At no time will Adjusted Total Indebtedness exceed 60 x OCF
29
- 485 -
Position: Adjusted Total Indebtedness = $ (60 x OCF) - (ATI) = $ The
Borrower [is/is not] in compliance with Section 4.4.
Section 4.7
Distributions: Neither the Borrower nor any Subsidiary shall declare
any dividends (other than dividends payable in stock of the
Borrower or dividends or distributions from any consolidated
Subsidiary) or make any cash distribution in respect of any
shares of its capital stock or warrants of its capital stock,
without the prior written consent of the Lenders; provided
that the Borrower need not obtain the Lenders' consent with
respect to dividends in any one (1) year which are in the
aggregate less than 25% of the Borrower's Net Operating
Profit After Taxes in the previous four (4) quarters, as
reported to the Lenders pursuant to Section 4.1.
Position: Net Operating Profit
After Taxes for
last four (4) quarters = ______________
x .25
Available for dividends
or distributions in the most
recent quarter plus the
prior three (3) quarters = ______________
Dividends and distributions
(excluding dividends payable
solely in stock of the Borrower and distributions
from consolidated Subsidiaries) declared or paid
in the most recent quarter plus the prior three
(3) quarters =
--------------
The Borrower [is/is not] in compliance with Section 4.7.
Section 4.15
Interest The ratio of OCF to Interest Expense ("IE")at the
Coverage: end of each quarter will not be less than 2.25 to 1.0 (225%).
Position: OCF = $
IE = $
OCF/IE = %
30
- 486 -
The Borrower [is/is not] in compliance with Section 4.15.
Section 4.19
Capital The Borrower shall not make capital expenditures (other than
Expenditures: permitted earning assets specified in Section 4.19) in any
fiscal year, commencing with the fiscal year beginning
January 1, 1998, in excess of $2,000,000.
Position: Capital Expenditures (other than permitted earning assets
specified in Section 4.19) this fiscal year = $_____________
The Borrower [is/is not] in compliance with Section 4.19.
Section 4.20
Acquisitions: The Borrower shall not make acquisitions which in the
aggregate exceed $20,000,000 and in any one instance exceed
$10,000,000 except certain permitted unlimited acquisitions.
Position: Acquisitions (other than permitted unlimited acquisitions) in
the aggregate since the date of the Agreement = _________.
Date Amount Acquired Company
Permitted Unlimited Acquisition:
Date Amount Acquired Principal Line
Company Place of Of
Business Business
The Borrower [is/is not] in compliance with Section 4.20.
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;
(ii) a default under Section 6.1(j) or 6.1(l) regarding a change in
ownership or control of the Company; or.
(iii) an indemnity claim by Broadcast Partners under Section 6.1(m).
Name of Borrower: Data Transmission Network Corporation
Signature:
Title:
31
- 487 -
EXHIBIT D
TO
FOURTH AMENDMENT TO 1997 REVOLVING CREDIT AGREEMENT
Lender Current Current Revised Revised Adjustment5
% Outstanding % Outstanding
FNB-O 20.7 $931,500 20.0% $900,000 ($ 31,500)
FNB-W .5 22,500 .5 22,500 -------
NBD 11.9 535,500 3.1 139,500 ( 396,000)
Norwest 4.8 216,000 10.0 450,000 234,000
LaSalle 19.9 895,500 12.8 576,000 ( 319,500)
Nationsbank 0.0 ------ 13.1 589,500 589,500
Sumitomo 10.0 450,000 0.0 ------ ( 450,000)
Mercantile 10.3 463,500 17.3 778,500 315,000
Montreal 11.6 522,000 10.1 454,500 ( 67,500)
U.S. Bank 10.3 463,500 13.1 589,500 126,000
--------- ------- ------- --------
TOTALS $4,500,000 $4,500,000 $ -------
--------
32
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3
4 This section need not be completed unless Borrower has subordinated debt or
guaranty contingencies.
5 Plus interest through May 15, 1998
