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EXHIBIT 4.11
DIGITAL TELEPORT, INC.
AMENDMENT NO. 2 TO STOCK PLEDGE AGREEMENT
THIS AMENDMENT NO. 2 TO STOCK PLEDGE AGREEMENT (the "Amendment") dated as
of February 12, 1998, is by and between RICHARD D. WEINSTEIN, an individual
("Weinstein"), and KLT TELECOM INC., a Missouri corporation ("KLT"; together
with Weinstein, the "Parties").
WITNESSETH:
WHEREAS, Weinstein made that certain Stock Pledge Agreement, dated as of
March 12, 1997 (the "Stock Pledge Agreement") in favor of KLT, whereby Weinstein
pledged the Pledged Shares (as defined therein) to KLT as security for certain
obligations described therein (the "Secured Obligations");
WHEREAS, Digital Teleport, Inc. ("DTI") entered into an Agreement and Plan
of Reorganization (the "Merger Agreement"), dated as of December 23, 1997, by
and among DTI, DTI Holdings, Inc. ("Holdco") and DTI Merger Sub, Inc. ("Merger
Sub"), pursuant to which the Pledged Shares were converted into and became an
equal number of shares of common stock, par value $.01 per share, of Holdco (the
"Substituted Shares").
WHEREAS, Weinstein amended the Stock Pledge Agreement pursuant to Amendment
No. 1 to Stock Pledge Agreement to substitute the Substituted Shares for the
Pledged Shares as security for the Secured Obligations as provided therein.
WHEREAS, in connection with certain financial transactions, KLT has agreed
to subordinate the Secured Obligations to obligations of Weinstein in favor of
Holdco and DTI pursuant to a Subordination Agreement dated as of February 12,
1998, a copy of which is attached hereto as Exhibit A;
WHEREAS, Weinstein desire to further amend the Stock Pledge Agreement to
extend the time during which KLT could foreclose on the Pledged Shares as
provided herein;
NOW, THEREFORE, the Shareholders, DTI and Holdco agree as follows:
1. Section 16. Section 16 shall be amended to read in its entirety as
follows:
"16. Termination. This Agreement shall terminate thirty-six (36) months
after the Closing Date (as such term is defined in the Stock Purchase
Agreement), unless a claim has been made by KLT pursuant to Section 8.4 of the
Stock Purchase Agreement, in which event this Agreement shall expire after the
termination of the time frames outlined in Section 8.4 of the Stock Purchase
Agreement, as such time frames have been amended by Amendment No.1 to the Stock
Purchase Agreement."
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2. Definitions. Any capitalized terms used but not defined herein shall
have the meaning ascribed thereto in the Stock Pledge Agreement.
3. Effect of this Amendment. Except as otherwise specifically amended
herein, the Stock Pledge Agreement, as modified by this Amendment, remains in
full force and effect.
4. Counterparts; Effectiveness. This Amendment may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and delivered as of the day and year first above written.
/s/ Richard D. Weinstein
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Richard D. Weinstein
KLT TELECOM INC.
By: /s/ R.G. Wasson
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Ronald G. Wasson
President
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EXHIBIT A
Subordination Agreement
February 12, 1998
DTI Holdings, Inc.
Digital Teleport, Inc.
11111 Dorsett Road
St. Louis, Missouri 63043
Re: Agreement Of Subordination
Ladies and Gentlemen:
Richard D. Weinstein ("Weinstein) has certain obligations to KLT
Telecom Inc., a Missouri corporation ("KLT"), pursuant to that certain Guaranty
Agreement dated as of March 12, 1997, as amended (such obligations being
referred to herein as the "Junior Claims"). The Junior Claims are secured by
security interests (the "Junior Security Interests") in Weinstein's stock in DTI
Holdings, Inc. (the "Collateral") pursuant to a Stock Pledge Agreement dated
March 12, 1997 (the "Stock Pledge Agreement"). Richard D. Weinstein ("Weinstein)
has certain other obligations to KLT ("Frank Litigation Obligations to KLT")
pursuant to Section 8.3 of the Stock Purchase Agreement dated December 31, 1996,
as amended ("Stock Purchase Agreement"). The Frank Litigation Obligations to KLT
are also secured by security interests in the Collateral pursuant to the Stock
Pledge Agreement.
For value received, and to induce Merrill Lynch, Pierce, Fenner & Smith
Incorporated and TD Securities (USA) Inc. to enter into certain financial
transactions with Weinstein, KLT (i) hereby subordinates and postpones the
Junior Claims to any indemnification claims of Digital Teleport, Inc. ("DTI"), a
Missouri corporation, or DTI Holdings, Inc. ("Holdings") against Weinstein
pursuant to Section 8.3 of the Stock Purchase Agreement (such claims being
referred to herein as the "Senior Claims"), and (ii) hereby agrees to reimburse
DTI and Holdings for the Senior Claims to the extent of any proceeds that KLT
receives from Weinstein pursuant to the Frank Litigation Obligations to KLT,
less all costs and expenses (including without limitation reasonable attorneys'
fees and expenses) incurred by KLT in pursuit of such claims. If any such
proceeds consist of securities of Holdings, the amount of such proceeds shall
mean (a) the amount received from the sale of such securities, or (b) if KLT
does not sell such securities, the fair market value thereof. The Frank
Litigation Obligations to KLT are not subordinated to DTI or Holdings hereunder,
and nothing herein shall be deemed to preclude KLT from exercising its rights
under the Stock Pledge Agreement in its sole discretion with respect to such
Frank Litigation Obligations to KLT, subject to KLT's reimbursement obligations
to DTI and Holdings set forth herein.
KLT hereby agrees that the relative priorities of the Junior Security
Interests and the Senior Security Interests shall be as set forth in this
Agreement notwithstanding the time of filing
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of financing statements, taking possession of the Collateral or the taking of
any other steps necessary to perfect its liens or security interests and
notwithstanding bankruptcy or insolvency proceedings involving Weinstein as
debtor.
KLT hereby agrees that until such time as the dispute resulting in the
Frank Litigation is finally determined, whether by mutual written agreement of
the parties, by final and binding arbitration or by an order or judgment of a
court of competent jurisdiction, which has not been reversed, stayed, modified,
or amended, and as to which the time to appeal or seek certiorari has expired
and no appeal or petition for certiorari has been timely taken, or as to which
any appeal that has been taken or any petition for certiorari that has been
timely filed has been resolved by the highest court to which the order or
judgment was appealed or from which certiorari was sought ("Frank Matter
Resolution"), KLT shall not have any right (i) to foreclose upon or exercise any
other right or remedy with respect to any of the Collateral, whether by judicial
action or otherwise, or (ii) to ask, demand, sue for, take, enforce or accept
from Weinstein any payment on account of, or any security for, any Junior Claim.
KLT hereby represents to you that (i) KLT has not heretofore assigned,
transferred, created a security interest in, or otherwise encumbered such Junior
Claims nor executed or delivered any other instrument or document adversely
affecting the Junior Claims, and (ii) KLT is not insolvent within any meaning of
that term as of the date hereof.
This Agreement is a continuing agreement and, unless you shall have
specifically consented in writing to its revocation, shall remain in full force
and effect in all respects until the Frank Matter Resolution.
No delay or failure on your part in exercising any right or remedy
shall operate as a waiver thereof; and no single or partial exercise of any
right or remedy shall preclude other or further exercises thereof or the
exercise of any right or remedy; and no notice to or demand on Weinstein or KLT
shall be deemed a waiver of any obligation or duty of Weinstein or KLT or of
your right to take further action without notice or demand; nor in any event
shall any modification, alteration or waiver of any of the provisions hereof be
effective unless in writing and signed for or on behalf of you and then only in
the specific instance for which given.
ALL PARTIES TO THIS AGREEMENT WAIVE TRIAL BY JURY IN ANY LITIGATION TO
WHICH YOU ARE A PARTY ARISING OUT OF OR RELATING TO THE JUNIOR CLAIMS OR THIS
AGREEMENT, AND KLT WAIVES ALL RIGHTS TO INTERPOSE THEREIN COUNTERCLAIMS OTHER
THAN COMPULSORY COUNTER-CLAIMS OR OFFSETS OF ANY KIND.
Your rights and privileges hereunder shall inure to the benefit of your
successors and assigns, and this Agreement shall be binding upon KLT's and
Weinstein's respective successors and assigns. KLT and Weinstein waive notice of
assignment hereof.
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Missouri. Wherever possible, each
provision of this Agreement shall be
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interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
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such provision or the remaining provisions of this Agreement.
IN WITNESS WHEREOF, KLT and Weinstein have executed this Agreement this
______ day of February, 1998.
KLT TELECOM INC.
By:
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Name:
Title:
WEINSTEIN
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Richard D. Weinstein
ACCEPTED AND AGREED TO BY:
DTI HOLDINGS, INC.
By:
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ACCEPTED AND AGREED TO BY:
DIGITAL TELEPORT, INC.
By:
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