SECOND AMENDMENT TO
NOTE AND WARRANT PURCHASE AGREEMENT
This Second Amendment to Note and Warrant Purchase Agreement (this
"Second Amendment") is dated as of ____________, 1996, and entered into by and
among DATA TRANSMISSION NETWORK CORPORATION, a Delaware corporation ("Company"),
THE NOTEHOLDERS LISTED ON THE SIGNATURE PAGES HEREOF (collectively the
"Noteholders").
RECITALS:
WHEREAS, Company and the initial purchaser of the Notes are parties to
that certain Note and Warrant Purchase Agreement dated as of June 30, 1994, as
amended by that certain First Amendment to Note and Warrant Purchase Agreement
dated as of April 13, 1995 (as amended, the "Purchase Agreement"), the terms
defined therein being used herein as therein defined; and
WHEREAS, Company and Noteholders desire to further amend the Purchase
Agreement as hereinafter set forth;
NOW, THEREFORE, subject to the terms and conditions herein contained,
the parties hereto hereby agree as follows:
Section 1. AMENDMENT TO THE PURCHASE AGREEMENT.
The definition of "Consolidated Operating Cash Flow" set forth in
Section 14 of the Purchase Agreement hereby is amended by adding ",
amortization" immediately after the word "depreciation" in such definition.
Section 2. COMPANY'S REPRESENTATIONS AND WARRANTIES.
In order to induce the Noteholders to enter into this Second Amendment
and to amend the Purchase Agreement in the manner provided herein, Company
represents and warrants to the Noteholders that the following statements are
true, correct and complete:
2.1 Organization and Powers. Company has all requisite corporate power
and authority to enter into this Second Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Purchase
Agreement as amended by this Second Amendment (the "Amended Agreement").
2.2 Authorization of Agreements. The execution and delivery of this
Second Amendment have been duly authorized by all necessary corporate action by
Company.
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2.3 Binding Obligation. This Second Amendment and the Amended Agreement
are the legally valid and binding obligations of Company enforceable against
Company in accordance with their respective terms, except as enforcement may be
limited to bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
Section 3. NOTEHOLDERS' REPRESENTATIONS AND WARRANTIES.
In order to induce Company to enter into this Second Amendment and to
amend the Purchase Agreement in the manner provided herein, the Noteholders
represent and warrant to Company that collectively the Noteholders are the
holders of more than 50% in principal amount of the Notes outstanding on the
date of this Second Amendment.
Section 4. MISCELLANEOUS.
4.1 Reference to and Effect on the Purchase Agreement. From and after
the date of this Second Amendment, each reference in the Purchase Agreement to
"this Agreement", "hereunder", "hereof", "herein" or words of like import, and
each reference in any other documents relating to the Purchase Agreement, shall
mean and be a reference to the Purchase Agreement as amended by this Second
Amendment. Except as specifically amended by this Second Amendment, the Purchase
Agreement and other documents relating to the Purchase Agreement shall remain in
full force and effect and are hereby ratified and confirmed.
4.2 Execution in Counterparts; Effectiveness. This Second Amendment may
be executed in any number of counterparts and by the different parties herein in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument. This Second Amendment shall become effective upon
the execution of a counterpart hereof by each of the parties hereto.
4.3 Governing Law. This Second Amendment shall be governed by, and
shall be construed and enforced in accordance with, the laws of the State of New
York.
4.4 Headings. Section and subsections headings in this Second Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Second Amendment for any other purpose or be given any substantive
effect.
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WITNESS the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first above written.
COMPANY:
DATA TRANSMISSION NETWORK
CORPORATION, a Delaware corporation
By: _______________________________
Title : ___________________________
NOTEHOLDERS:
EQUITABLE CAPITAL PRIVATE INCOME
AND EQUITY PARTNERSHIP II, L.P.
By: EQUITABLE CAPITAL MANAGEMENT
CORPORATION, its General Partner
By: _______________________________
Title: Investment Officer
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