Exhibit 10.20
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is entered
into as of March 9, 2000 among DAVEL FINANCING COMPANY, L.L.C., a Delaware
limited liability company (the "Borrower"); DAVEL COMMUNICATIONS, INC., a
Delaware corporation (the "Parent"); the Parent and the Domestic Subsidiaries of
the Borrower, as Guarantors; the Lenders party to the "Credit Agreement"
(referred to and defined below); and BANK OF AMERICA, N.A. (formerly known as
NationsBank, N.A.), as Administrative Agent for the Lenders (the "Administrative
Agent"). Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Credit Agreement.
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders, the Administrative
Agent, BancBoston Xxxxxxxxx Xxxxxxxx, Inc., as Syndication Agent and The Chase
Manhattan Bank, as Documentation Agent, entered into that certain Credit
Agreement, dated as of December 23, 1998 (as amended and modified by that
certain First Amendment to Credit Agreement and Consent and Waiver dated as of
April 8, 1999 among the Borrower, the Parent, the Domestic Subsidiaries of the
Borrower, the Lenders and the Administrative Agent, and as may be further
amended or modified from time to time, the "Credit Agreement");
WHEREAS, the Borrower has informed the Lenders that it anticipates
being unable to meet certain financial covenants in the future;
WHEREAS, the Borrower has requested that the Lenders amend certain
terms and provisions of the Credit Agreement, including, without limitation, the
financial covenants with respect to certain periods;
WHEREAS, the Lenders have agreed to do so, on the terms and subject to
the conditions set forth below.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. AMENDMENTS. Effective as of the date hereof, upon satisfaction of each of
the conditions set forth in PARAGRAPH 2 hereof, the Credit Agreement is hereby
amended as follows (unless otherwise specified, section references used below
refer to sections of the Credit Agreement):
(a) APPLICABLE PERCENTAGE. SECTION 1.1 is amended to delete the
definition of "Applicable Percentage" in its entirety and to replace such
definition with the following definition:
"APPLICABLE PERCENTAGE" means, (a) 3.50% for all Revolving
Loans which are Eurodollar Loans, all Tranche A Term Loans which
are Eurodollar Loans, and all Letter of Credit Fees, (b) 4.25% for
all Tranche B Term Loans which are Eurodollar Loans, (c) 2.00% for
all Revolving Loans which are Base Rate Loans and all Tranche A
Term Loans which are Base Rate Loans, (d) 2.75% for all Tranche B
Term Loans which are Base Rate Loans, and (e) 0.75% for all
Commitment Fees.
(b) FIXED CHARGE COVERAGE RATIO. SECTION 1.1 is further amended to
delete the definition of "Fixed Charge Coverage Ratio" in its entirety and
to replace such definition with the following definition:
"FIXED CHARGE COVERAGE RATIO" means, with respect to the
Credit Parties and their Subsidiaries determined on a consolidated
basis in accordance with GAAP, for any twelve month period, the
ratio of (in each case for such period) (a) EBITDA less Capital
Expenditures less cash income taxes to (b) cash Interest Expense
plus Scheduled Funded Debt Payments.
(c) INTEREST COVERAGE RATIO. SECTION 1.1 is further amended to
delete the definition of "Interest Coverage Ratio" in its entirety and to
replace such definition with the following definition:
"INTEREST COVERAGE RATIO" means, with respect to the Credit
Parties and their Subsidiaries determined on a consolidated basis
in accordance with GAAP, for any twelve month period, the ratio of
(in each case for such period) (a) EBITDA to (b) cash Interest
Expense.
(d) LEVERAGE RATIO. SECTION 1.1 is further amended to delete the
definition of "Leverage Ratio" in its entirety and to replace such
definition with the following definition:
"LEVERAGE RATIO" means, with respect to the Credit Parties and
their Subsidiaries determined on a consolidated basis and in
accordance with GAAP, for any twelve month period, the ratio of
(a) total Funded Debt less cash in excess of $7,000,000, in each
case as of the last day of such period to (b) EBITDA for such
period.
(e) PERMITTED ACQUISITIONS. SECTION 1.1 is further amended to
add the following phrase to the definition of "Permitted Acquisition"
immediately after the
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existing phrase "an Acquisition by the Borrower or any Subsidiary of the
Borrower" and prior to the semicolon following such existing phrase and to
delete clause (h) thereof in its entirety:
"which is completed prior to Xxxxx 0, 0000"
(x) REVOLVING COMMITTED AMOUNT. SECTION 1.1 is further amended to
delete the definition of "Revolving Committed Amount" in its entirety and
to replace such definition with the following definition:
"REVOLVING COMMITTED AMOUNT" means FORTY-FIVE MILLION DOLLARS
($45,000,000), as such amount may be reduced pursuant to
Section 2.1(d) or 3.3(c).
(g) MAXIMUM INTEREST PERIOD; NEW LOANS. CLAUSE (C) of
SECTION 2.1(B) is deleted in its entirety and replaced with the
following provision:
(C) with respect to Revolving Loans that will be Eurodollar Loans,
the Interest Period applicable thereto (which shall not exceed one
month in duration in the case of any Eurodollar Loan made on or
after March 9, 2000)
(h) MAXIMUM INTEREST PERIOD; EXISTING LOANS. CLAUSE (Y) of SECTION
2.5 is deleted in its entirety and replaced with the following
provision:
(y) if the request is to continue a Eurodollar Loan or convert
a Base Rate Loan to a Eurodollar Loan, the Interest Period
applicable thereto (which shall not exceed one month in duration in
the case of any Eurodollar Loan continued or converted on or after
March 9, 2000).
(i) CONDITIONS TO BORROWING. CLAUSE (E) of SECTION 5.2 is deleted
in its entirety and replaced with the following provision:
(e) REQUIRED LENDERS' CONSENT. From and after March 9, 2000,
if after giving effect to the making of any requested Loan (and the
application of the proceeds thereof) or to the issuance of any
requested Letter of Credit, as the case may be, the sum of the
Revolving Loans outstanding plus LOC Obligations outstanding would
exceed $35,000,000, the Lenders shall not be obligated to make such
Loan nor shall the Issuing Lender be required to issue such Letter
of Credit, as applicable, unless the Required Lenders shall have
consented in writing to the making of such Loan or the issuance of
such Letter of Credit, as applicable.
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(j) INTERIM REPORTING. SECTION 7.1(B) is deleted in its entirety
and replaced with the following provisions:
(b) INTERIM FINANCIAL STATEMENTS. As soon as available, and in
any event within 45 days after the closing of each fiscal quarter of
the Borrower and within 30 days after the end of each calendar
month, a consolidated balance sheet and income statement of the
Credit Parties and their Subsidiaries as of the end of such fiscal
quarter or calendar month, as the case may be, together with related
consolidated statements of cash flows for such fiscal quarter or
calendar month, as applicable, in the case of the income statement
and statement of cash flow setting forth in comparative form, if
practical, consolidated figures for the corresponding period of the
preceding fiscal year and in the case of the balance sheet setting
forth in comparative form, if practical, consolidated figures for
the corresponding date of the prior fiscal year, all such financial
information described above to be in reasonable form and detail and
reasonably acceptable to the Administrative Agent, and accompanied
by a certificate of the chief financial officer of the Borrower to
the effect that such quarterly financial statements fairly present
in all material respects the financial condition of the Credit
Parties and their Subsidiaries and have been prepared in accordance
with GAAP (subject to normal year-end adjustments and the absence of
footnotes).
(k) OFFICER'S CERTIFICATE. SECTION 7.1(C) is amended to add the
following parenthetical to such section at the end of CLAUSE (I) of such
section:
(except in the case of certificates accompanying monthly financial
statements required to be delivered pursuant to Section 7.1(b) with
respect to months ending on or before November 30, 2000)
(l) FINANCIAL COVENANTS. SECTION 7.2 is deleted in its entirety and
replaced with the following provisions:
(a) LEVERAGE RATIO. The Leverage Ratio, for the twelve month
period ending as of each date set forth below, shall be less than or
equal to the applicable ratio set forth below opposite such date:
TWELVE MONTHS
ENDING RATIO
-------------- -----
March 31, 2000 6.00 to 1.00
June 30, 2000 6.00 to 1.00
September 30, 2000 6.50 to 1.00
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December 31, 2000 6.75 to 1.00
January 31, 2001 and
Each Twelve Month
Period Ending Thereafter 3.50 to 1.00.
(b) INTEREST COVERAGE RATIO. The Interest Coverage Ratio, for
the twelve month period ending as of each date set forth below,
shall be greater than or equal to the applicable ratio set forth
below opposite such date:
TWELVE MONTHS
ENDING RATIO
-------------- -----
March 31, 2000 1.50 to 1.00
June 30, 2000 1.50 to 1.00
September 30, 2000 1.25 to 1.00
December 31, 2000 1.25 to 1.00
January 31, 2001 and
Each Twelve Month
Period Ending Thereafter 3.75 to 1.00.
(c) FIXED CHARGE COVERAGE RATIO. The Fixed Charge Coverage
Ratio, for the twelve month period ending as of each date set forth
below, shall be greater than or equal to the applicable ratio set
forth below opposite such date:
TWELVE MONTHS
ENDING RATIO
-------------- -----
March 31, 2000 .50 to 1.00
June 30, 2000 .50 to 1.00
September 30, 2000 .40 to 1.00
December 31, 2000 .40 to 1.00
January 31, 2001 and
Each Twelve Month
Period Ending Thereafter 1.10 to 1.00.
(m) CAPITAL EXPENDITURES. CLAUSE (B) of SECTION 8.14 is
amended to delete the figure "$13,000,000" which appears in such clause and to
replace such figure with the figure "$10,000,000".
2. CONDITIONS PRECEDENT. The effectiveness of this Amendment is subject to
receipt by the Administrative Agent of each of the following:
(a) counterparts to this Amendment duly executed by each of
the Credit Parties and the Required Lenders;
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(b) certified copies of resolutions or similar authorizations
of each Credit Party approving and adopting this Amendment, the
transactions contemplated herein and authorizing such Credit
Party's execution and delivery hereof;
(c) an opinion or opinions from counsel to the Credit Parties
with respect to this Amendment, in form and substance satisfactory
to the Administrative Agent, addressed to the Administrative Agent
on behalf of the Lenders and dated as of the date hereof; and
(d) the "Amendment Fee" referred to and described in
PARAGRAPH 3 hereof, for the benefit of each Lender.
3. AMENDMENT FEE. The Borrower agrees to pay in cash or other immediately
available funds, on or before March 22, 2000, to the Administrative Agent for
the account of each Lender that executes this Amendment on or before such date,
a fee equal to the product of each such Lender's Commitment (determined after
giving effect to this Amendment) multiplied by .35%; provided, however, the
Borrower shall have no obligation to pay any such fee until this Amendment has
been executed and delivered by the Required Lenders (which fees shall be
thereupon fully-earned and non-refundable).
4. GOOD STANDING CERTIFICATES. Within 30 days after the date hereof, the
Borrower shall deliver to the Administrative Agent copies of certificates of
good standing, existence or their equivalent with respect to each Credit Party,
certified as of a recent date by the appropriate Governmental Authorities of the
state or other jurisdiction of such Credit Party's formation.
5. RATIFICATION OF CREDIT AGREEMENT. The term "Credit Agreement" as used in each
of the Credit Documents shall hereafter mean the Credit Agreement as amended and
modified by this Amendment. Except as herein specifically agreed, the Credit
Agreement, as amended by this Amendment, is hereby ratified and confirmed and
shall remain in full force and effect according to its terms, including, without
limitation, the liens granted pursuant to the Collateral Documents.
6. AUTHORITY/ENFORCEABILITY. Each of the Credit Parties, the Administrative
Agent and the Lenders represents and warrants as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by
such Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as
such enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or
governmental authority or third party is required in connection
with the execution, delivery or performance by such Person of this
Amendment (other than that which may have been previously
obtained).
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7. NO DEFAULT. The Credit Parties represent and warrant to the Lenders that (a)
the representations and warranties of the Credit Parties set forth in SECTION 6
of the Credit Agreement (as amended by this Amendment) are true and correct in
all material respects as of the date hereof, (b) no event has occurred and is
continuing which constitutes a Default or an Event of Default and (c) they have
no claims, counterclaims, offsets, credits (other than any credit for
overpayment of interest or fees under the Credit Documents of which the Credit
Parties have no knowledge as of the date hereof (each an "Overpayment Credit"))
or defenses to their obligations under the Credit Documents or to the extent
they have any (other than any Overpayment Credit) they are hereby released in
consideration of the Lenders entering into this Amendment.
8. COUNTERPARTS/TELECOPY. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. Delivery of
executed counterparts of this Amendment by telecopy shall be effective as an
original and shall constitute a representation that an original shall be
delivered.
9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
* * * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered and this Amendment shall be
effective as of the date first above written.
BORROWER: DAVEL FINANCING COMPANY, L.L.C.,
a Delaware limited liability company
By: DAVEL COMMUNICATIONS, INC.,
its sole managing member
By: _________________________________
Name: ___________________________
Title: __________________________
PARENT GUARANTOR: DAVEL COMMUNICATIONS, INC.,
a Delaware corporation
By: _________________________________
Name: ___________________________
Title: __________________________
SUBSIDIARY GUARANTORS: DAVEL COMMUNICATIONS GROUP, INC.,
an Illinois corporation
PEOPLES TELEPHONE COMPANY, INC.,
a New York corporation
PEOPLES TELEPHONE COMPANY, INC.,
a New Hampshire corporation
PEOPLES COLLECTORS, INC.,
a Delaware corporation
PTC CELLULAR, INC.,
a Delaware corporation
PTC SECURITY SYSTEMS, INC.,
a Florida corporation
TELELINK TELEPHONE SYSTEMS, INC.,
a Georgia corporation
SILVERADO COMMUNICATIONS CORP.,
a Colorado corporation
Signature Page to Second Amendment to
Credit Agreement
PEOPLES ACQUISITION CORP.,
a Pennsylvania corporation
TELALEASING ENTERPRISES, INC.,
an Illinois corporation
ADTEC COMMUNICATIONS, INC.,
a Florida corporation
INTERSTATE COMMUNICATIONS, INC.,
a Georgia corporation
T.R.C.A., INC.,
an Illinois corporation
DAVELTEL, INC.,
an Illinois corporation
DAVEL MEXICO, LTD.,
an Illinois corporation
COMMUNICATIONS CENTRAL INC.,
a Georgia corporation
CENTRAL PAYPHONE SERVICES, INC.,
a Georgia corporation
COMMUNICATIONS CENTRAL
OF GEORGIA, INC.,
a Georgia corporation
INVISION TELECOM, INC.,
a Georgia corporation
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
AGENT:
----- BANK OF AMERICA, N.A. (FORMERLY,
NATIONSBANK, N.A.),
in its capacities as the
Administrative Agent and Collateral
Agent
By: _______________________________
Name: _________________________
Title: ________________________
Signature Page to Second Amendment to
Credit Agreement
LENDERS:
------- BANK OF AMERICA, N.A. (FORMERLY,
NATIONSBANK, N.A.),
individually in its capacity as a
Lender, and in its capacity as the
Issuing Lender
By: _______________________________
Name: _________________________
Title: ________________________
Signature Page to
Second Amendment to Credit Agreement
THE CHASE MANHATTAN BANK
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
THE BANK OF NEW YORK
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
FLEET BANK, N.A.
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
LASALLE BANK, NATIONAL ASSOCIATION
(AS SUCCESSOR TO LASALLE NATIONAL BANK)
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
U.S. BANK NATIONAL ASSOCIATION
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
CREDIT AGRICOLE INDOSUEZ
By: _________________________________
Name: ___________________________
Title: __________________________
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
BANK ONE N.A. (AS SUCCESSOR TO THE FIRST
NATIONAL BANK OF CHICAGO)
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
PNC BANK, NATIONAL ASSOCIATION
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
ALLSTATE LIFE INSURANCE COMPANY
By: _________________________________
Name: ___________________________
Title: __________________________
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
XXXXXX FINANCIAL, INC.
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
PARIBAS
By: _________________________________
Name: ___________________________
Title: __________________________
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
XXXXX XXXXX SENIOR INCOME TRUST
By: XXXXX XXXXX MANAGEMENT,
as Investment Advisor
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT AND RESEARCH, as
Investment Advisor
By: _________________________________
Name: ___________________________
Title: ____________________________
Signature Page to
Second Amendment to Credit Agreement
OXFORD STRATEGIC INCOME FUND
By: XXXXX XXXXX MANAGEMENT, as Investment
Advisor
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
XXX XXXXXX SENIOR FLOATING
RATE FUND
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
KZH CYPRESSTREE-1 LLC
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
CYPRESSTREE INVESTMENT FUND, LLC
By: CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC., its Managing Member
By: _________________________________
Name: ___________________________
Title: __________________________
CYPRESSTREE INSTITUTIONAL FUND, LLC
By: CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC., its Managing Member
By: _________________________________
Name: ___________________________
Title: __________________________
NORTH AMERICAN SENIOR FLOATING RATE FUND
By: CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC., as Portfolio Manager
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: _________________________________
Name: ___________________________
Title: __________________________
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
EQUITY GROUP INVESTMENTS LLC
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
Second Amendment to Credit Agreement
