Exhibit 10.6
FOURTH AMENDMENT AND WAIVER TO
AMENDED, RESTATED, AND CONSOLIDATED CREDIT AGREEMENT
This FOURTH AMENDMENT AND WAIVER TO AMENDED, RESTATED, AND
CONSOLIDATED CREDIT AGREEMENT entered into as of this 15th day of November, 2004
(this "Fourth Amendment"), is hereby entered into among Davel Financing Company,
L.L.C., a Delaware limited liability company ("Davel"), PhoneTel Technologies,
Inc., an Ohio corporation ("PhoneTel"), Cherokee Communications, Inc., an Ohio
corporation ("Cherokee", and together with Davel and PhoneTel, "Borrowers"),
each of the guarantors under the Amended, Restated, and Consolidated Credit
Agreement that is a signatory hereto (the "Guarantors", and together with
Borrowers, the "Credit Parties") and MobilePro Acquisition Corp. (the "Successor
Lender").
RECITALS
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WHEREAS, the Credit Parties and certain lenders (the "Selling
Lenders") have entered into that certain Amended, Restated, and Consolidated
Credit Agreement (as amended and otherwise modified from time to time, the
"Credit Agreement") dated as of July 24, 2002;
WHEREAS, pursuant to the terms and conditions of the Loan
Purchase Agreement and Transfer and Assignment of Shares dated September 3,
2004, as amended by that certain letter agreement by and between the Selling
Lenders, Davel and the Successor Lender dated November __, 2004 (the "Amended
Loan Purchase Agreement") the Selling Lenders have sold, transferred and
assigned all of their rights and interest in the Credit Agreement to the
Successor Lender;
WHEREAS, certain Events of Default have occurred under the
Credit Agreement as set forth on Schedule 1 attached hereto (the "Existing
Defaults");
WHEREAS, the Credit Parties have requested, and the Successor
Lender has agreed, that the Successor Lender waive the Existing Defaults as set
forth pursuant to the terms and conditions set forth herein; and
WHEREAS, the Credit Parties have requested, and the Successor
Lenders have agreed, that certain terms of the Credit Agreement be amended.
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, and upon the terms and
conditions set forth herein the Credit Parties and the Successor Lender hereby
agree as follows:
SECTION 1. RELATION TO THE CREDIT AGREEMENT; DEFINITIONS.
1.1 RELATION TO CREDIT AGREEMENT. This Fourth Amendment
constitutes an integral part of the Credit Agreement and shall be deemed to be a
Loan Document for all purposes. Upon the effectiveness of this Fourth Amendment,
on and after the date hereof each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof," or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to
"the Credit Agreement," "thereunder," "thereof" or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement as amended hereby.
1.2 CAPITALIZED TERMS. For all purposes of this Fourth
Amendment, capitalized terms used herein without definition shall have the
meanings specified in the Credit Agreement.
SECTION 2. AMENDMENT TO CREDIT AGREEMENT.
2.1 AMENDMENT TO SECTION 2.03(E). Section 2.03(e) of the
Credit Agreement is hereby amended by reflecting that the Payment Amount related
to the October 1, 2004 and November 1, 2004 Payment Dates shall be Zero Dollars
($0).
SECTION 3. WAIVER.
3.1 WAIVER OF EXISTING DEFAULTS. Subject to the satisfaction
of (i) all of the conditions precedent contained in Section 5 of this Fourth
Amendment, and (ii) Section 3.2 below, the Successor Lender hereby waives the
Existing Defaults.
3.2 EFFECTIVENESS OF WAIVER. The waiver provided in Section
3.1 above shall terminate automatically without further action by the Successor
Lender in the event that the nature or extent of the Existing Defaults should
prove to be in excess of the nature or extent as disclosed to the Successor
Lender prior to the date hereof.
SECTION 4. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS.
4.1 REPRESENTATIONS.
Each of the Credit Parties hereby represents and
warrants to the Successor Lenders that:
(a) Such Credit Party is a limited liability company
or corporation, as applicable, duly organized and existing and in good standing
under the laws of its jurisdiction of formation and is duly qualified to do
business and in good standing in every jurisdiction in which the nature of the
business done or the property owned by it would make such qualification
necessary;
(b) Such Credit Party has all requisite power and
authority to own and operate its properties, and to conduct its business as
currently conducted and as currently proposed to be conducted. Such Credit Party
has all requisite power and authority necessary to enter into this Fourth
Amendment and to perform its respective obligations under this Fourth Amendment;
(c) Such Credit Party has taken all limited liability
company or corporate, as applicable, action necessary to be taken by it to
authorize the execution and delivery of this Fourth Amendment. This Fourth
Amendment has been duly executed and
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delivered by such Credit Party and constitutes its legal, valid and binding
obligations, enforceable against it in accordance with its terms;
(d) After giving effect to the amendments and waivers
herein, no event has occurred and no condition exists which constitutes a
Default or an Event of Default under the Credit Agreement or the other Loan
Documents; and
(e) The Credit Agreement and all other Loan Documents
and all representations, warranties, terms and conditions therein remain in full
force and effect, and such Credit Party hereby confirms and ratifies each of the
provisions of the Credit Agreement and the other Loan Documents applicable to
it.
SECTION 5. CONDITIONS TO EFFECTIVENESS.
5.1 CONDITIONS TO EFFECTIVENESS. The amendments contained in
Section 2 above shall become effective as of the date hereof when, and only when
duly executed counterparts of this Fourth Amendment have been executed and
delivered by the Successor Lender and each Credit Party.
SECTION 6. MISCELLANEOUS.
6.1 CROSS-REFERENCES. References in this Fourth Amendment to
any Section (or "ss.") are, unless otherwise specified, to such Section (or
"ss.") of this Fourth Amendment.
6.2 SUCCESSORS AND ASSIGNS. This Fourth Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
6.3 COUNTERPARTS. This Fourth Amendment may be executed by one
or more of the parties hereto on any number of separate counterparts, each of
which shall be deemed an original and all of which, taken together, shall be
deemed to constitute one and the same instrument. Delivery of an executed
counterpart of this Fourth Amendment by facsimile transmission shall be as
effective as delivery of an originally executed counterpart hereof.
6.4 GOVERNING LAW. THIS FOURTH AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF CALIFORNIA,
WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES.
6.5 OUTSTANDING INDEBTEDNESS.
(a) Each of the Credit Parties hereby acknowledges
and agrees that as of the date hereof, the aggregate outstanding principal
amount due under the Credit Agreement is $102,552,421.16 and that such principal
amount is payable pursuant to the Credit Agreement as amended hereby without
defense, offset, withholding, counterclaim or deduction of any kind.
(b) Each of the Credit Parties, each of their
respective successors-in-title, legal representatives and assignees and, to the
extent the same is claimed by right of, through or under such Credit Party, for
its past, present and future employees, agents, representatives, officers,
directors, shareholders, and trustees, does hereby forever remise, release
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and discharge the Successor Lender, and its successors-in-title, legal
representatives and assignees, past, present and future officers, directors,
shareholders, trustees, agents, employees, consultants, experts, advisors,
attorneys and other professionals and all other persons and entities to whom
such Successor Lender would be liable if such persons or entities were found to
be liable to the Credit Parties, or any of them (collectively hereinafter the
"Lender Parties"), from any and all manner of action and actions, cause and
causes of action, claims, charges, demands, counterclaims, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, damages, judgments, expenses, executions, liens,
claims of liens, claims of costs, penalties, attorneys' fees, or any other
compensation, recovery or relief on account of any liability, obligation, demand
or cause of action of whatever nature relating to, arising out of or in
connection with the Credit Agreement or any other Loan Document, including but
not limited to, acts, omissions to act, actions, negotiations, discussions and
events resulting in the finalization and execution of this Fourth Amendment, as,
among and between the Credit Parties and the Lender Parties, such claims whether
now accrued and whether now known or hereafter discovered, from the beginning of
time through the date hereof.
Each Credit Party hereby knowingly, voluntarily, intentionally
and expressly waives and relinquishes any and all rights and benefits that it
may have under Section 1542 of the California Civil Code, or any other similar
provision of any other jurisdiction, as against the Lender Parties. Section 1542
of the Civil Code of California provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
Each Credit Party hereby acknowledges that the foregoing
waiver of the Section 1542 of the California Civil Code was separately bargained
for. Each Credit Party knowingly, voluntarily, intentionally and expressly
waives any and all rights and benefits conferred by Section 1542, or by any law
of the any state or territory of the United States or any foreign country or
principle of common law that is similar or analogous to Section 1542 and agrees
and acknowledges that this waiver is an essential term of this Fourth Amendment,
without which the consideration would not have been given by the Successor
Lender to the Credit Parties.
6.6 RATIFICATION. Except as expressly amended or waived
herein, all of the representations, warranties, terms, covenants and conditions
of the Credit Agreement and the other Loan Documents shall remain unamended and
unwaived and shall continue to be, and shall remain, in full force and effect in
accordance with their respective terms. The amendments set forth herein shall be
limited precisely as provided for herein to the provisions expressly amended
herein and shall not be deemed to be a waiver of, amendment of, consent to or
modification of any other term or provision of any other document or of any
transaction or further action on the part of any Credit Party which would
require the consent of the Successor Lender under the Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be executed and delivered as of the date first above written.
BORROWERS: DAVEL FINANCING COMPANY, L.L.C.,
a Delaware limited liability company
By: DAVEL COMMUNICATIONS, INC.,
its sole managing member
By: /S/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PHONETEL TECHNOLOGIES, INC.,
an Ohio corporation
By: /S/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
CHEROKEE COMMUNICATIONS, INC.,
a Texas corporation
By: /S/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PARENT GUARANTOR: DAVEL COMMUNICATIONS, INC.,
a Delaware corporation
By: /S/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
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SUBSIDIARY GUARANTORS: DAVEL COMMUNICATIONS GROUP, INC.,
an Illinois corporation
ADTEC COMMUNICATIONS, INC.,
a Florida corporation
CENTRAL PAYPHONE SERVICES, INC.,
a Georgia corporation
COMMUNICATIONS CENTRAL, INC.,
a Georgia corporation
COMMUNICATIONS CENTRAL OF GEORGIA, INC.,
a Georgia corporation
DAVEL MEDIA, INC.,
a Delaware corporation
DAVEL MEXICO, LTD.,
an Illinois corporation
DAVELTEL, INC.,
an Illinois corporation
INTERSTATE COMMUNICATIONS, INC.,
a Georgia corporation
INVISION TELECOM, INC.,
a Georgia corporation
PEOPLES ACQUISITION CORPORATION,
a Pennsylvania corporation
PEOPLES COLLECTORS, INC.,
a Delaware corporation
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PEOPLES TELEPHONE COMPANY, INC.,
a New York corporation
PEOPLES TELEPHONE COMPANY, INC.,
a New Hampshire corporation
PTC CELLULAR, INC.,
a Delaware corporation
PTC SECURITY SYSTEMS, INC.,
a Florida corporation
SILVERADO COMMUNICATIONS CORP.,
a Colorado corporation
TELALEASING ENTERPRISES, INC.,
an Illinois corporation
T.R.C.A., INC.,
an Illinois corporation
By: /S/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
SUCCESSOR LENDER: MOBILEPRO ACQUISITION CORP.
By: /S/ XXX X. XXXXXX
---------------------------------
Name: Xxx Xxxxxx
Title: Chief Executive Officer
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SCHEDULE 1
Events of Default
THE FOLLOWING EVENTS OF DEFAULT HAVE OCCURRED UNDER THE CREDIT AGREEMENT:
Under Section 6.01(b)(ii) of the Credit Agreement for failure
to achieve minimum EBITDA of at least $5,700,000 for the period 1/1/04-9/30/04.
Under Section 6.01(b)(iii) of the Credit Agreement for failure
to achieve minimum Adjusted EBITDA of at least $1,200,000 for the period
1/1/04-9/30/04.
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