NOTE AND WARRANT PURCHASE AGREEMENT
This First Amendment to Note and Warrant Purchase Agreement (this
"First Amendment") is dated as of April 13, 1995, and entered into by and
among DATA TRANSMISSION NETWORK CORPORATION, a Delaware corporation ("Company"),
and THE NOTEHOLDERS LISTED ON THE SIGNATURE PAGES HEREOF (collectively the
"Noteholders").
RECITALS:
WHEREAS, Company and the initial purchaser of the Notes entered into
that certain Note and Warrant Purchase Agreement dated as of June 30, 1994 (the
"Purchase Agreement"), the terms defined therein being used herein as therein
defined; and
WHEREAS, Company and Noteholders desire to amend the Purchase Agreement
as hereinafter set forth to modify certain financial covenants contained
therein;
NOW, THEREFORE, subject to the terms and conditions herein contained,
the parties hereto hereby agree as follows:
Section 1. AMENDMENTS TO THE PURCHASE AGREEMENT.
1.1 Subsection 10.5 of the Purchase Agreement hereby is
amended and restated in its entirety to read as follows:
"10.5. Interest Coverage Ratio. The Company will
not permit the Interest Coverage Ratio to be less than
2.0 to 1.0."
1.2 Section 14 of the Purchase Agreement hereby is amended by adding in
its proper alphabetical order the following definition:
"Interest Coverage Ratio: For any calendar quarter, the ratio
of (i) Consolidated Operating Cash Flow for such calendar quarter to
(ii) consolidated interest expense for the Company and its Subsidiaries
for such calendar quarter determined in accordance with generally
accepted accounting principles; provided, however, such interest
expense shall not include amortization of deferred offering costs nor
any fees the Company is obligated to pay upon the occurrence of a
"Trigger Event" as defined in Section 2.4 of the Bank Loan Agreement."
1.3 Section 14 of the Purchase Agreement hereby is amended
by deleting in its entirety the definition of Consolidated
Tangible Net Worth.
RCF\64596.1
267
Section 2. COMPANY'S REPRESENTATIONS AND WARRANTIES.
In order to induce the Noteholders to enter into this First 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 First Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Purchase
Agreement as amended by this First Amendment (the "Amended Agreement").
2.2 Authorization of Agreements. The execution and
delivery of this First Amendment have been duly authorized by all
necessary corporate action by Company.
2.3 Binding Obligation. This First 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 First 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 First Amendment.
Section 4. MISCELLANEOUS.
4.1 Reference to and Effect on the Purchase Agreement. From and after
the date of this First 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 First
Amendment. Except as specifically amended by this First Amendment, the Purchase
Agreement and the 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 First 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
RCF\64596.1
268
same instrument. This First Amendment shall become effective upon the execution
of a counterpart hereof by each of the parties hereto.
4.3 Governing Law. This First 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 First Amendment
are included herein for convenience of reference only and shall not constitute a
part of this First Amendment for any other purpose or be given any substantive
effect.
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: /s/ Xxxx X. Xxxxx
------------------------------
Title: Executive Vice President and
Chief Operating Officer
------------------------------
NOTEHOLDERS:
EQUITABLE CAPITAL PRIVATE INCOME
AND EQUITY PARTNERSHIP II, L.P.
By: EQUITABLE CAPITAL MANAGEMENT
CORPORATION, its General Partner
By: /s/ U. Xxxxx X. Xxxxxxxx
-------------------------------
Title: Investment Officer
RCF\64596.1
269
