FIRST SUPPLEMENT AND AMENDMENT
TO TRUST INDENTURE
THIS FIRST SUPPLEMENT AND AMENDMENT TO TRUST INDENTURE dated as of
February 1, 2001 ("First Indenture Supplement") among The Bank of New York, as
Trustee, and DTI Holdings, Inc., a Missouri corporation, as Issuer,
supplementing and amending the Indenture dated as of February 23, 1998 between
DTI Holdings, Inc. as Issuer and The Bank of New York as Trustee relating to
$506,000,000 aggregate principal amount at maturity 12 1/2% Senior Discount
Notes due 2008 and 12 1/2% Series B Senior Discount Notes due 2008.
RECITALS
A. The Issuer and the Trustee have entered into an Indenture dated as of
February 23, 1998 relating to $506,000,000 aggregate principal amount
at maturity 12 1/2% Senior Discount Notes due 2008 and 12 1/2% Series B
Senior Discount Notes due 2008 (the "Existing Indenture").
B. Capitalized terms used herein which are not otherwise defined herein
shall have the meanings set forth in Section 101 of the Indenture (as
defined in the Existing Indenture).
C. The Issuer is proposing to acquire for cash the Outstanding Notes which
have been validly tendered to it if at least a majority of the
aggregate principal amount of the Notes at Maturity are validly
tendered and not withdrawn prior to the expiration date of the tender
offer.
D. In connection with the actions described in the immediately preceding
Recital, the Issuer and Trustee desire to amend the Existing Indenture
immediately prior to the acceptance of the Notes pursuant to the tender
offer upon the receipt of the consents of the Holders of not less than
the majority in aggregate principal amount at Maturity of then
Outstanding Notes (the "Requisite Consent").
E. Section 902 of the Existing Indenture authorizes the Trustee and the
Issuer, when authorized by a Board resolution, to enter into an
Indenture supplemental to the Existing Indenture on obtaining the
Requisite Consent.
F. The Requisite Consent has been obtained and all other actions desirable
or required by the Existing Indenture or otherwise necessary and
desirable to effect the amendment have been taken.
AGREEMENT
Accordingly, in consideration of the premises and the mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that the
Existing Indenture shall be amended and supplemented as follows:
1. Amendments
(a) Section 101 of the Existing Indenture is amended effective
as of the date hereof (y) by deleting the definitions of Existing Subsidiaries,
Permitted Indebtedness, Permitted Investments and Permitted Liens and
substituting in lieu thereof the following new definitions:
"Existing Subsidiaries" mean Digital Teleport, Inc., a
Missouri corporation, and Digital Teleport of Virginia, Inc., a
Virginia corporation and wholly owned subsidiary of Digital Teleport,
Inc.
"Permitted Indebtedness" means any of the following:
(a) Indebtedness of the Company pursuant to the
Notes;
(b) Indebtedness of the Company owing to any
Restricted Subsidiary (but only so long as such Indebtedness is held by
such Restricted Subsidiary); provided that any Indebtedness of the
Company owing to any such Restricted Subsidiary is subordinated in
right of payment from and after such time as the Notes shall become due
and payable (whether at Stated Maturity, by acceleration or otherwise)
to the payment and performance of the Company's obligations under the
Notes; provided further that any transaction pursuant to which any
Restricted Subsidiary to which such Indebtedness is owed, ceases to be
a Restricted Subsidiary shall be deemed to be an incurrence of such
Indebtedness by such Restricted Subsidiary that is not permitted by
this clause (b);
(c) Indebtedness of the Company or any Restricted
Subsidiaries consisting of guarantees, indemnities or obligations in
respect of purchase price adjustments in connection with one or more
credit facilities permitted under clause (j), clause (k) and clause (l)
of this definition or in connection with the acquisition of or
disposition of assets, including, without limitation, shares of Capital
Stock;
(d) Indebtedness of the Company or any Restricted
Subsidiary under letter of credit facilities that are used to finance
trade payables in the ordinary course of business and under which
recourse to the Company or any Restricted Subsidiary is limited to the
cash securing such letters of credit;
(e) Indebtedness of the Company or any Restricted
Subsidiary under Currency Agreements and Interest Rate Agreements
entered into in the ordinary course of business; provided that such
agreements do not increase the Indebtedness of the obligor outstanding
at any time other than as a result of fluctuations in foreign currency
exchange rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder;
(f) Indebtedness of the Company or any Restricted
Subsidiary in addition to that permitted to be incurred pursuant to
clauses (a) through (e) above in an aggregate principal amount not in
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excess of $25,000,000 (or, to the extent not denominated in United
States dollars, the United States Dollar Equivalent thereof) at any one
time outstanding;
(g) Purchase Money Indebtedness;
(h) Indebtedness of any Restricted Subsidiary to the
Company;
(i) Prior to December 31, 2000, Indebtedness of the
Company or any Restricted Subsidiary not to exceed, at any one time
outstanding, two times (A) the Net Cash Proceeds received by the
Company after the date of this Indenture as a capital contribution or
from the issuance and sale of its Qualified Capital Stock to a Person
that is not a Subsidiary of the Company, to the extent such Net Cash
Proceeds have not been used pursuant to clause (a)(3)(B) or clauses
(b)(ii) and (iii) of Section 1009 to make a Restricted Payment and (B)
80% of the fair market value of property (other than cash and Cash
Equivalents) received by the Company after the date of this Indenture
as a contribution of capital or from the sale of its Qualified Capital
Stock to a Person that is not a Subsidiary of the Company, to the
extent such capital contribution or sale of Qualified Capital Stock has
not been used pursuant to clause (a)(3)(B) of Section 1009 to make a
Restricted Payment; provided that such Indebtedness does not mature
prior to the Stated Maturity of the Notes and has an Average Life
longer than the Notes;
(j) Indebtedness of the Company or any Restricted
Subsidiary under one or more facilities outstanding at any time in an
aggregate principal amount not to exceed (i) $70,000,000, plus (ii) the
greater of (x) 80% of the accounts receivable of the Company or (y)
$30,000,000;
(k) Indebtedness of the Company, the proceeds of
which are to be used to acquire some or all of the Notes tendered for
cash, in an aggregate principal amount not to exceed (i) $94,000,000,
plus (ii) interest payable in connection therewith;
(l) Indebtedness of the Company or any Restricted
Subsidiary outstanding at any time in an aggregate principal amount not
to exceed $100,000,000; and
(m) any renewals, extensions, substitutions,
refinancings or replacements (each, for purpose of this clause, a
"refinancing") of any Indebtedness of the Company (including all or any
part of the Notes) or any Restricted Subsidiary by the Company, or any
refinancing of any Indebtedness of any Restricted Subsidiary by such
Restricted Subsidiary, including any successive refinancings, so long
as in the case of Indebtedness other than Indebtedness incurred
pursuant to clauses (b) through (f) and (h) through (l) (i) any such
new Indebtedness shall be in a principal amount that does not exceed
the principal amount (or, if such Indebtedness being refinanced
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration thereof, such lesser
amount as of the date of determination) so refinanced, plus the amount
of any premium reasonably determined as necessary to accomplish such
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refinancing and the amount of expenses of the Company incurred in
connection with such refinancing, (ii) in the case of any refinancing
of Subordinated Indebtedness, such new Indebtedness is made subordinate
to the Notes at least to the same extent as the Indebtedness being
refinanced, (iii) in the case of any refinancing of Indebtedness that
is pari passu in right of payment with the Notes, such new Indebtedness
is made pari passu in right of payment with, or subordinate in right of
payment to, the Notes and (iv) (A) if such Indebtedness being
refinanced has an Average Life longer than the Average Life of the
Notes, such new Indebtedness has an Average Life longer than the
Average Life of the Notes and a final Stated Maturity later than the
final Stated Maturity of the Notes and (B) if such Indebtedness being
refinanced has an Average Life shorter than the Average Life of the
Notes, such Indebtedness has an Average Life longer than, and a Final
Stated Maturity Date later than, such Indebtedness being so refinanced.
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents;
(b) Investments in the Company or any Restricted
Subsidiary;
(c) Investments by the Company or any Restricted
Subsidiary in another Person, if as a result of such Investment (i)
such other Person becomes a Restricted Subsidiary and the Company or
another Restricted Subsidiary owns at least 66 2/3% of the outstanding
Voting Stock of such other Person or (ii) such other Person is merged
or consolidated with or into, or transfers or conveys all or
substantially all of its assets to, the Company or a Restricted
Subsidiary;
(d) Acquisition of any Notes up to and including
100% of the aggregate principal amount at Maturity of the original
Outstanding Notes;
(e) Investments by the Company or any Restricted
Subsidiary in any Person engaged in the delivery of telephony or other
telecommunications or data transmission services in North America, the
sum of which does not exceed $20,000,000 at any one time outstanding;
or
(f) Investments in existence on the date of this
Indenture.
"Permitted Liens" means the following types of Liens:
(a) Liens existing as of the date of the issuance of
the Notes;
(b) Liens on any property or assets of a Subsidiary
granted in favor of the Company or any Restricted Subsidiary;
(c) Liens securing the Notes;
(d) any interest or title of a lessor under any
Capitalized Lease Obligation or of a seller under any Purchase Money
Indebtedness permitted by this Indenture;
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(e) Liens securing Indebtedness incurred under
clause (j), clause (k) and clause (l) of the definition of
"Permitted Indebtedness"; provided that the Liens in the case of
clauses (k) and (l) shall be limited to Capital Stock of any one or
more Restricted Subsidiaries of the Company;
(f) statutory Liens or landlord's and carrier's,
warehouseman's, mechanic's, supplier's, materialmen's, repairmen's or
other like Liens arising in the ordinary course of business and with
respect to amounts not yet delinquent or being contested in good faith
by appropriate proceeding, if a reserve or other appropriate provision,
if any, as shall be required in conformity with GAAP shall have been
made therefor;
(g) Liens for taxes, assessments, government
charges or claims that are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and if a
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor;
(h) Liens incurred or deposits made to secure
the performance of tenders, bids, leases, statutory obligations, surety
and appeal bonds, government contracts, performance bonds and other
obligations of a like nature (including, without limitation,
indefeasible rights to use) incurred in the ordinary course of business
(other than contracts for the payment of money);
(i) easements, servitudes, rights-of-way,
restrictions (including, without limitation, zoning restrictions) and
other similar charges or encumbrances not interfering in any material
respect with the business of the Company or any Subsidiary incurred in
the ordinary course of business;
(j) Liens arising by reason of any judgment,
decree or order of any court so long as such Lien is adequately bonded
and any appropriate legal proceedings that may have been duly initiated
for the review of such judgment, decree or order shall not have been
finally terminated or the period within which such proceedings may be
initiated shall not have expired;
(k) Liens securing Acquired Indebtedness created
prior to (and not in connection with or in contemplation of) the
incurrence of such Indebtedness by the Company or any Subsidiary;
provided that such Lien does not extend to any property or assets of
the Company or any Subsidiary other than the assets acquired in
connection with the incurrence of such Acquired Indebtedness;
(l) Liens securing Interest Rate Agreements or
Currency Agreements permitted to be incurred pursuant to clause (e) of
the definition of "Permitted Indebtedness" or any collateral for the
Indebtedness to which such Interest Rate Agreements or Currency
Agreements relate;
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(m) Liens arising from purchase money mortgages
and purchase money security interests; provided that (i) the related
Indebtedness shall not be secured by any property or assets of the
Company or any Subsidiary other than the property and assets so
acquired (and proceeds thereof) and (ii) the Lien securing such
Indebtedness shall be created within 60 days of such acquisition;
(n) Liens with respect to assets of a Restricted
Subsidiary granted by such Restricted Subsidiary to the Company or a
Restricted Subsidiary to secure Indebtedness owing to the Company or
such Restricted Subsidiary;
(o) pledges and deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of statutory obligations; and
(p) any extension, substitution, renewal or
replacement, in whole or in part, of any Lien described in the
foregoing clauses (a) through (o) or any successive extension,
substitution, renewal or replacement; provided that any such extension,
substitution, renewal or replacement shall be no more restrictive in
any material respect than the Lien so extended, substituted, renewed or
replaced and shall not extend to any additional property or assets.
and (z) by adding the following new definitions:
"First Indenture Supplement" means that certain First
Supplement and Amendment to Trust Indenture, dated as of February 1,
2001 amending and supplementing the Indenture.
"KLT" means KLT Telecom Inc., a Missouri corporation.
(b) The Existing Indenture is amended effective as of
the date hereof by deleting paragraph (i) of Section 801 in its
entirety and substituting in lieu thereof the following new paragraph
(i):
(i) either (a) the Company will be the
continuing corporation or (b) the Person (if other than the
Company) formed by such consolidation or into which the
Company or such Subsidiary is merged or the Person which
acquires by sale, conveyance, transfer, lease or other
disposition, all or substantially all of the properties and
assets of the Company and its Subsidiaries on a consolidated
basis substantially as an entirety, as the case may be (the
"Surviving Entity"), (1) will be a corporation or limited
liability company organized and validly existing under the
laws of the United States of America, any state thereof or the
District of Columbia and (2) will expressly assume, by a
supplemental indenture to this Indenture in form satisfactory
to the Trustee, the Company's obligation pursuant to the Notes
for the due and punctual payment of the principal (including
accretion of original issue discount) of, premium, if any, on
and interest on all the Notes and the performance and
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observance of every covenant of this Indenture on the part of
the Company to be performed or observed provided however if
the Surviving Entity is a Subsidiary the Company may continue
to be obligated on the Indenture;
(c) The Existing Indenture is amended effective as of
the date hereof by adding thereto the following new paragraph (c) to
Section 1009:
(c) Notwithstanding anything contained in
this Section 1009 hereof to the contrary (without affecting
any restriction contained in Section 1015 of the Indenture),
the Company and its Restricted Subsidiaries may use the
proceeds from any sales, leases, transfers or other
dispositions of assets to prepay any debt described in clauses
(j), (k) or (l) of the definition of Permitted Indebtedness or
the Notes.
(d) The Existing Indenture is amended effective as
the date hereof by deleting Section 1016 in its entirety and
substituting in lieu thereof the following new Section 1016:
The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any encumbrance
or restriction of any kind on the ability of any Restricted
Subsidiary to (a) pay dividends, in cash or otherwise, or make
any other distributions on or in respect of its Capital Stock,
(b) pay any Indebtedness owed to the Company or any other
Restricted Subsidiary, (c) make Investments in the Company or
any other Restricted Subsidiary, (d) transfer any of its
properties or assets to the Company or any other Restricted
Subsidiary or (e) guarantee any Indebtedness of the Company or
any other Restricted Subsidiary, except for such encumbrances
or restrictions existing under or by reason of (i) any
agreement in effect on the Issue Date, (ii) applicable law,
(iii) customary non-assignment provisions of any lease
governing a leasehold interest of the Company or any
Restricted Subsidiary, (iv) any agreement or other instrument
of a Person acquired by the Company or any Restricted
Subsidiary in existence at the time of such acquisition (but
not created in contemplation thereof), which encumbrance or
restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, (v) the
refinancing of Indebtedness incurred under the agreements
existing on the Issue Date, so long as such encumbrances or
restrictions are no less favorable in any material respect to
the Company or any Restricted Subsidiary than those contained
in the respective agreement as in effect on the Issue Date,
(vi) restrictions contained in any security agreement
(including a capital lease obligation) securing Indebtedness
of the Company or a Restricted Subsidiary otherwise permitted
under this Indenture, (vii) customary nonassignment provisions
entered into in the ordinary course of business in leases and
other agreements, (viii) any restriction with respect to a
Restricted Subsidiary of the Company entered into for the sale
or disposition of all or substantially all of the Capital
Stock or assets of such Restricted Subsidiary made in
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accordance with Section 1015, (ix) pursuant to this Indenture
and the Notes, (x) Permitted Indebtedness permitted under
clause (j), clause (k) or clause (l) of the definition
thereof, so long as such encumbrances or restrictions do not
prevent dividends or other distributions on or in respect of
the Capital Stock of a Restricted Subsidiary of the Company to
be used by the Company to make principal or interest or
premium (if any) payments on the Notes when due (whether at
Stated Maturity, by acceleration or otherwise), or (xi) any
agreement or instrument governing or relating to Indebtedness
under any senior commercial bank facility (each, a "Bank
Facility") if such encumbrance or restriction applies only to
(A) amounts which at any point in time (other than during such
periods as are described in the following clause (B)) (1)
exceed amounts due and payable (or which are to become due and
payable within 30 days) in respect of the Notes or this
Indenture for interest, premium and principal or (2) if paid,
would result in an event described in the following clause (B)
of this sentence, or (B) during the pendency of any event that
causes, permits or, after notice or lapse of time, would cause
or permit the holder(s) of Indebtedness governed by such Bank
Facility to declare such Indebtedness to be immediately due
and payable or to require cash collateralization or cash cover
for such Indebtedness for so long as such cash
collateralization or cash cover has not been provided.
2. Miscellaneous.
(a) Except as expressly amended and supplemented hereby,
the Existing Indenture shall continue to be, and
shall remain, in full force and effect in accordance
with its terms, and this First Indenture Supplement
shall not be deemed to be a waiver of, or consent to
any supplement or amendment of, any other term or
condition of the Existing Indenture.
(b) This First Indenture Supplement may be executed by
the parties hereto in separate counterparts, each of
which when so executed and delivered shall be an
original, while all such counterparts together
constitute but one and the same instrument.
(c) This First Indenture Supplement shall in all respects
be governed by, and construed in accordance with, the
laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this First Indenture
Supplement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
DTI HOLDINGS, INC.
By: /s/ Gary W. Douglass
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Name: Gary W. Douglass
Title: Senior Vice President
Finance and Administration
Chief Financial Officer
THE BANK OF NEW YORK, Trustee
By: /s/ Robert A. Massimillo
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Signatory
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