Exhibit 4.1
SEVENTH AMENDMENT TO
THE
REVOLVING CREDIT
AGREEMENT
THIS SEVENTH AMENDMENT to the REVOLVING CREDIT
AGREEMENT, dated as of this 31 st day of March, 2008
(this “Seventh Amendment”), is entered into in
connection with and as an amendment to that certain Revolving
Credit Agreement, dated as of March 10, 2003 (the
“Credit Agreement”), as amended by that First
Amendment, dated as of August 31, 2003, as further amended by
that Second Amendment, dated as of February 27, 2004, as
further amended by that Third Amendment, dated as of
August 30, 2004, as further amended by that Fourth Amendment
dated as of August 29, 2005, as further amended by that Fifth
Amendment dated as of August 29, 2006, as further amended by
that Sixth Amendment dated as of August 29, 2007, and as
further amended, restated or modified from time to time, by and
between First National Bank of Omaha (“FNBO”) and
Ballantyne of Omaha, Inc. (the
“Borrower”).
RECITALS:
WHEREAS, the Borrower desires to obtain an
interim extension of credit from FNBO in the amount of Ten Million
Four Hundred Thousand Dollars ($10,400,000);
WHEREAS, FNBO has agreed to make said extension
of credit, and to amend the Credit Agreement as set forth herein to
reflect said extension of credit.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements contained in this Amendment, the parties
agree as follows:
ARTICLE I
Amendments
1.1
Definitions
. Article I of
the Credit Agreement is hereby amended as follows:
(a)
A definition for the term
“Adjustment Date” is added to Article I, reading
as follows:
“As defined in Section 2.3(b)
.”
(b)
The definition of
“Advance” is amended and restated in its entirety to
read as follows:
“Any advance of funds to the Borrower by
FNBO under the Base Revolving Credit Facility or the Interim
Revolving Credit Facility.”
(c)
A definition for the term
“Base Revolving Credit Note” is added to
Article I, reading as follows:
“The revolving credit note, substantially
in the form of Exhibit A attached to this Agreement, and all
extensions, renewals, and substitutions of or for the
foregoing.”
(d)
The definition of
“Collateral” is amended by inserting “the Control
Agreement” immediately prior to “the Security
Agreement” in the first and second lines thereof.
(e)
The definition of
“Commitment” is amended by inserting “Base
Revolving Credit” immediately prior to “Note” in
the second line thereof.
(f)
A definition for the term
“Control Agreement” is added to Article I, reading
as follows:
“The Control Agreement Regarding Security
Interest in Investment Property, dated as of March 31, 2008,
by and among FNBO, First National Capital Markets, Inc. and
the Borrower, relating to the Pledged Account, as amended,
modified, supplemented or restated from time to
time.”
(g)
The definition of
“Default Rate” is amended and restated in its entirety
to read as follows:
“3.0% plus the Revolving Credit Rate or
the Interim Revolving Credit Rate, as applicable.”
(h)
The definition of
“Guarantor Documents” is amended and restated in its
entirety to read as follows:
“(a)
The Guaranty Agreement,
dated as of March 10, 2003, among the Guarantors party thereto
from time to time and FBNO, as the same may be amended, modified,
supplemented and restated from time to time;
(b)
The Pledge Agreement;
and
(c)
The Security
Agreement.”
(i)
The definition of
“Guarantor” is hereby amended and restated to read as
follows:
“(a) All of the Borrower’s
existing and future direct and indirect Subsidiaries; (b) any
existing and future direct and indirect Subsidiaries of any of the
Guarantors; and (c) any Affiliate of Borrower that agrees to
act as a Guarantor pursuant to this Agreement and the Guarantor
Documents.”
(j)
A definition for the term
“Interim Facility Availability” is added to
Article I, reading as follows:
2
“The Interim Facility Commitment at such
time, minus the principal amount of all then-outstanding
Advances under the Interim Revolving Credit
Facility.”
(k)
A definition for the term
“Interim Facility Commitment” is added to
Article I, reading as follows:
“The lesser of (i) $10,400,000 or
(ii) 80% of the par value of investments held in the Pledged
Account.”
(l)
A definition for the term
“Interim Facility Termination Date” is added to
Article I, reading as follows:
“March 30, 2009, or such later date
as is approved in writing by FNBO.”
(m)
A definition for the term
“Interim Revolving Credit Facility” is added to
Article I, reading as follows:
“As defined in Section 2.1
.”
(n)
A definition for the term
“Interim Revolving Credit Note” is added to
Article I, reading as follows:
“A revolving credit note, in form and
substance satisfactory to FNBO, evidencing the Interim Revolving
Credit Facility, including all extensions, renewals, and
substitutions of or for the foregoing.”
(o)
A definition for the term
“Interim Revolving Credit Rate” is added to
Article I, reading as follows:
“As defined in Section 2.3(b)
.”
(p)
The definition of
“Note” is amended and restated in its entirety to read
as follows:
“The Base Revolving Credit Note or the
Interim Revolving Credit Note.”
(q)
A new definition for the
term “Notes” is added to Article I, reading as
follows:
“The Base Revolving Credit Note and the
Interim Revolving Credit Note.”
(r)
The definition of
“Operative Documents” is amended and restated in its
entirety to read as follows:
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“This Agreement, the Notes, the Control
Agreement, the Pledge Agreement, the Security Agreement, the
Guarantor Documents, any reaffirmations of the foregoing, the
financing statements regarding the Collateral and all other
documents, certificates and instruments required to be delivered
pursuant to this Agreement from time to time.”
(s)
The definition of
“Permitted Participant” is amended by deleting
“the Note” in the first line thereof and substituting
“any Note” in lieu thereof.
(t)
The definition of
“Pledge Agreement” is amended and restated in its
entirety to read as follows:
“The Stock Pledge Agreement, dated as of
March 10, 2003, among the Borrower, the Guarantors from time
to time party thereto, and FNBO, as the same may be amended,
modified, supplemented and restated from time to
time.”
(u)
A new definition for the
term “Pledged Account” is added to Article I,
reading as follows:
“Securities account number 20800013
maintained by the Borrower at First National Capital
Markets, Inc.”
(v)
A new definition for the
term “Portfolio Concentration Factor” is added to
Article I, reading as follows:
“For any investment in the Pledged
Account, as of any date, the quotient of (i) the principal
amount of said investment divided by (ii) the aggregate
principal amount of all investments in the Pledged
Account.”
(w)
The definition of Security
Agreement is amended and restated in its entirety to read as
follows:
“The Security Agreement, dated as of
March 10, 2003, among the Borrower, the Subsidiary Guarantors
from time to time party thereto, and FNBO, as the same may be
amended, modified, supplemented and restated from time to
time.”
(x)
A new definition for the
term “Weighted Average Rate” is added to
Article I, reading as follows:
“As of any Adjustment Date, the product
of (i) 1.25 multiplied by (ii) the sum of the
Weighted Average Returns for each investment in the Pledged
Account.”
(y)
A new definition for the
term “Weighted Average Return” is added to
Article I, reading as follows:
4
“As of any Adjustment Date, for any
investment in the Pledged Account, the product of (i) the
annualized rate of return for the investment, determined as of the
most recent Business Day immediately preceding the Adjustment Date
on which such information is available to FNBO (for purposes
hereof, the “Calculation Date”), multiplied by
(ii) the Portfolio Concentration Factor for said investment,
determined as of said Calculation Date.”
1.2
Revolving
Credit .
Section 2.1 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
“Until the Termination Date, FNBO agrees
to advance funds for general corporate purposes to the Borrower on
a revolving credit basis up to the amount of the Commitment in
effect from time to time (the “Base Revolving Credit
Facility”); provided , however , that the
aggregate amount of funds available for Advance to the Borrower
under the Base Revolving Credit Facility shall not exceed the
Availability.
In
addition, until the Inter
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