SECOND AMENDMENT TO 1997 TERM CREDIT AGREEMENT
THIS SECOND AMENDMENT to 1997 TERM CREDIT AGREEMENT (the "First
Amendment") is intended to amend the terms of the 1997 Term Credit Agreement
(the "Agreement") dated as of February 26, 1997, 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
First Bank, National Association); BANK OF MONTREAL; and LASALLE NATIONAL BANK.
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:
The parties hereby acknowledge that, effective as of the date hereof:
1. The following definitions in Article I of the Agreement are amended as
follows:
Banks: FNB-O, FNB-W, U.S. Bank, Mercantile, NBD, Norwest,
Sumitomo, Nationsbank, LaSalle and Montreal, and such additional
banks as may be added hereto from time to time by mutual written
agreement of the parties.
Operative
Documents: This 1997 Loan Agreement, the Notes, the Security
Agreement, the financial statements regarding the Collateral and
the documents and certificates, other than the Purchase Agreement,
delivered pursuant to Article VI.
2. Section 2.2 shall be amended to read as follows:
2.2 Notes. The Notes shall bear interest on the principal
loan amount thereof outstanding through June 30, 1999, at the rate
of 8.25% per annum; thereafter the interest rate for the balance
of the term shall be set on June 30, 1999, at two percent (2.00%)
above the yield on constant maturity Treasury Bonds with
maturities of three years, as quoted for the Business Day
immediately preceding June 30, 1999 in the applicable Release.
Notwithstanding the foregoing, the Notes issued to the following
Lenders shall bear interest as follows: (i) as to U.S. Bank, at
the rate of 8.36% per annum through June 30, 1999 (whereupon the
interest rate reset described above shall be applicable); and (ii)
as to Mercantile, NBD, Sumitomo, Norwest, FNB-W and Montreal, at a
variable rate per annum equal to New York Prime minus one-half of
one percent (0.5%). After an Event of Default has occurred,
interest shall accrue: (i) with respect to the fixed rate Notes,
on the entire outstanding balance of principal and interest at a
fluctuating rate equal to the Revolving Credit Rate plus four
percent (4.00%); and (ii) as to the floating rate Notes, on the
principal loan amount thereof at a rate per annum equal to three
and one-half percent (3.5%) above New York Prime. Interest shall
be calculated on actual days elapsed and a year of 360 days. 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 Note 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 Lenders the following
fees: (i) three-eighths of one percent (.375%) of the outstanding
principal balance of such Note as of the date preceding the
Trigger Event, 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.
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3. Section 5.4 (a) shall be amended to read as follows:
(a) The Borrower shall not at any time permit the Leverage
Ratio to exceed forty-eight (48).
4. Section 5.19 shall be amended to read as follows:
5.19 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) telecommunications
equipment, computer equipment, software and software consulting
shall not be counted for purposes of this annual limitation.
5. Section 5.20 is hereby amended to read as follows:
5.20 Acquisitions. The Borrower shall not acquire any stock
or any equity interest in, or warrants therefor or securities into
the same, or a substantial portion of the assets of, another
entity without the prior written consent of the 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 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 the making of such acquisition, will not be in default under
any other covenant or provision of this Agreement (including,
without limitation, the covenants and provisions pertaining to
minimum net worth and limitations on indebtedness); and
(c) no one acquisition shall exceed Ten Million Dollars
($10,000,000).
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6. Exhibit B is hereby amended to read as shown on Exhibit B to this
Second Amendment.
7. This Second Amendment shall not affect and there remain outstanding
from the Borrower to the Banks, the existing Notes and the Related Bank
Debt.
8. This Second 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 SECOND AMENDMENT TO
1997 TERM CREDIT AGREEMENT dated as of May 15, 1998.
DATA TRANSMISSION NETWORK CORPORATION
By /s/ Xxxxx X. Xxxxxx
Title:VP, CFO and Secretary
FIRST NATIONAL BANK OF OMAHA
By /s/ Xxxxx X. Xxxxxx
Title:Vice President
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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THE SUMITOMO BANK, LIMITED
By________________________________
Title:
By________________________________
Title:
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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FIRST NATIONAL BANK, WAHOO,
NEBRASKA
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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NBD BANK
By________________________________
Title:
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Xxxxxxxx
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XXXXXXX XXXX NEBRASKA, N.A.
By________________________________
Title:
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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LASALLE NATIONAL BANK, a national
banking association
By________________________________
Title:
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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MERCANTILE BANK OF ST. LOUIS, N.A.
By________________________________
Title:
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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U.S. BANK, NATIONAL ASSOCIATION
By________________________________
Title:
NOTICE: A credit agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
Borrower
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BANK OF MONTREAL,
Chicago Branch
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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EXHIBIT B
TO 1997 TERM CREDIT AGREEMENT
among
DATA TRANSMISSION NETWORK,
FIRST NATIONAL BANK OF OMAHA,
FIRST NATIONAL BANK, WAHOO, NEBRASKA,
NBD BANK,
NORWEST BANK NEBRASKA, N.A.,
THE SUMITOMO BANK, LIMITED,
MERCANTILE BANK OF ST. LOUIS, N.A.,
U.S. BANK, NATIONAL ASSOCIATION,
BANK OF MONTREAL
AND
LASALLE NATIONAL BANK
OFFICER'S CERTIFICATE
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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 Term 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,The Sumitomo Bank, Ltd., 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
5.1(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 2.2
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Trigger Fee: If the Leverage Ratio is more than 36, then a one time
fee is due, paid in three installments of 3/8% of the then
outstanding principal balances, on any of the Notes which
have an interest rate less than 7.5% per annum.
Position: A Trigger Event has/has not occurred.
Section 5.3
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 5.3.
Section 5.4
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)1: At no time will Adjusted Total Indebtedness
exceed 60 x OCF
Position: Adjusted Total Indebtedness = $
(60 x OCF) - (ATI) = $
The Borrower [is/is not] in compliance with Section 5.4.
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Section 5.7
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 5.1.
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 5.7.
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Section 5.15
Interest The ratio of OCF to Interest Expense ("IE")
Coverage: at the end of each quarter will not be less than
2.25 to 1.0 (225%).
Position: OCF = $
IE = $
OCF/IE = %
The Borrower [is/is not] in compliance with section 5.1.5.
Section 5.19
Capital Expenditures:
The Borrower shall not make capital expenditures (other than
permitted earning assets specified in Section 5.19) 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 5.19) this fiscal year
= $_____________
The Borrower [is/is not] in compliance with Section 5.19.
Section 5.20
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 5.20.
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Additional Representations:
There have/have not been any sale(s) of assets which would require
prepayment of the Notes under Section 5.2.
There has/has not been:
(i) a Change of Control or a material adverse change in
management personnel as defined in Section 5.14 of the
Agreement;
(ii) a default under Section 7.1(j) or 7.1(l) regarding a change
in ownership or control of the Company; or.
(iii) an indemnity claim by Broadcast Partners under Section
7.1(m).
Name of Borrower: Data Transmission Network Corporation
Signature: /s/ Xxxxx X. Xxxxxx
Title:VP, CFO and Secretary
--------
1This section need not be completed unless Borrower has subordinated debt or
guaranty contingencies.
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