EXHIBIT 10.1
AMENDMENT NUMBER NINE
---------------------
TO LOAN AND SECURITY AGREEMENT
------------------------------
THIS AMENDMENT NUMBER NINE TO LOAN AND SECURITY AGREEMENT
(this "AMENDMENT"), dated as of May 14, 2002, is entered into among PHONETEL
TECHNOLOGIES, INC., an Ohio corporation ("PHONETEL"), CHEROKEE COMMUNICATIONS,
INC., a Texas corporation ("CHEROKEE"; Cherokee, together with Phonetel, are
referred to hereinafter each individually as a "BORROWER", and individually and
collectively, jointly and severally, as the "BORROWERS"), on the one hand, and,
on the other hand, Agent (as hereinafter defined) and the financial
institutions (referred to hereinafter each individually as a "LENDER" and
collectively as the "LENDERS") that are signatories to that certain Loan and
Security Agreement, dated as of November 17, 1999 (as amended, restated,
supplemented, or otherwise modified from time to time, the "LOAN AGREEMENT"),
entered into among the Borrowers, the Lenders, and FOOTHILL CAPITAL
CORPORATION, a California corporation, as agent for the Lenders (herein, in
such capacity, referred to as "AGENT"), in light of the following:
RECITALS
--------
WHEREAS, the Borrowers have requested that the Lenders amend
the Loan Agreement; and
WHEREAS, the Lenders are willing to amend the Loan Agreement
under the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:
AGREEMENT
---------
I. DEFINITIONS. Capitalized terms not otherwise defined herein shall have
the meaning ascribed thereto in the Loan Agreement.
II. AMENDMENTS TO THE LOAN AGREEMENT. Upon the Ninth Amendment Effective
Date, the parties agree to amend the Loan Agreement as follows:
2.1 SECTION 1.1 of the Loan Agreement hereby is amended by
inserting the following new defined terms in the proper
alphabetical order:
-1-
"NINTH AMENDMENT" means that certain Amendment Number Nine to
Loan and Security Agreement, dated as of May 14, 2002, among
the Borrowers, the Lenders, and Agent.
"NINTH AMENDMENT EFFECTIVE DATE" means the date that all
conditions set forth in Section III of the Ninth Amendment
have been satisfied.
2.2 SECTION 7.20 of the Loan Agreement hereby is amended and
restated in its entirety to read as follows:
(a) MINIMUM EBITDA. The Borrowers will not permit their
EBITDA, determined on a consolidated basis, for each period
shown on the chart below, measured at the end of each such
period, to be less than the amount set forth opposite each
such period:
===================================== =====================
PERIOD CUMULATIVE
EBITDA
------------------------------------- ---------------------
January 1, 2002 through ($840,000)
March 31, 2002
------------------------------------- ---------------------
January 1, 2002 through $275,000
June 30, 2002
------------------------------------- ---------------------
January 1, 2002 through $725,000
August 31, 2002
===================================== =====================
III. CONDITIONS PRECEDENT TO AMENDMENT. The satisfaction of each of the
following unless waived or deferred by the Lenders, in their sole
discretion, shall constitute conditions precedent to the effectiveness
of this Amendment and each and every provisions hereof:
3.1 Agent shall have received this Amendment, in form and
substance satisfactory to Agent, duly executed by each party
hereto, and in full force and effect;
3.2 The representations and warranties in this Amendment, the
Loan Agreement as amended by this Amendment, and the other
Loan Documents shall be true and correct in all respects on
and as of the date hereof, as though made on such date
(except to the extent that such representations and
warranties relate solely to an earlier date);
3.3 No Default or Event of Default shall have occurred and be
continuing on the date hereof, nor shall result from the
consummation of the transactions contemplated herein; and
-2-
3.4 No injunction, writ, restraining order, or other order of any
nature prohibiting, directly or indirectly, the consummation
of the transactions contemplated herein shall have been
issued and remain in force by any Governmental Authority
against any of the Borrowers, Agent, or any of the Lenders.
IV. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents and
warrants to the Lenders that (a) the execution, delivery, and
performance of this Amendment and of the Loan Agreement, as amended by
this Amendment, are within such Borrower's corporate powers, have been
duly authorized by all necessary corporate action, and are not in
contravention of any law, rule, or regulation, or any order, judgment,
decree, writ, injunction, or award of any arbitrator, court, or
Governmental Authority, or of the terms of its Governing Documents, or
of any contract or undertaking to which it is a party or by which any
of its properties may be bound or affected, (b) this Amendment and the
Loan Agreement, as amended by this Amendment, constitute such
Borrower's legal, valid, and binding obligation, enforceable against
such Borrower in accordance with its terms, and (c) this Amendment has
been duly executed and delivered by such Borrower.
V. CHOICE OF LAW. THE VALIDITY OF THIS AMENDMENT, ITS CONSTRUCTION,
INTERPRETATION AND ENFORCEMENT, AND THE RIGHTS OF THE PARTIES
HEREUNDER, SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
VI. COUNTERPARTS; TELEFACSIMILE EXECUTION. This Amendment may be executed
in any number of counterparts and by different parties on separate
counterparts, each of which when so executed and delivered, shall be
deemed an original, and all of which, when taken together, shall
constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Amendment by telefacsimile
shall be equally effective as delivery of a manually executed
counterpart of this Amendment. Any party delivering an executed
counterpart of this Amendment by telefacsimile also shall deliver a
manually executed counterpart of this Amendment but the failure to
deliver a manually executed counterpart shall not affect the validity,
enforceability, and binding effect of this Amendment.
VII. EFFECT ON LOAN AGREEMENT. The Loan Agreement, as amended hereby, shall
be and remain in full force and effect in accordance with its
respective terms and hereby is ratified and confirmed in all respects.
The execution, delivery, and performance of this Amendment shall not
operate as a waiver of or, except as expressly set forth herein, as an
amendment of, any right, power, or remedy of Agent or any Lender under
the Loan Agreement, as in effect prior to the date hereof.
VIII. FURTHER ASSURANCES. Each Borrower shall execute and deliver all
agreements, documents, and instruments, in form and substance
satisfactory to Agent,
-3-
and take all actions as Agent may reasonably request from time to
time, to perfect and maintain the perfection and priority of Liens in
the Collateral held by Agent for the benefit of the Lenders and to
fully consummate the transactions contemplated under this Amendment
and the Loan Agreement, as amended by this Amendment.
IX. MISCELLANEOUS.
10.1 Upon and after the effectiveness of this Amendment, each
reference in the Loan Agreement to "this Agreement",
"hereunder", "herein", "hereof" or words of like import
referring to the Loan Agreement, and each reference in the
other Loan Documents to "the Loan Agreement", "thereunder",
"therein", "thereof" or words of like import referring to the
Loan Agreement, shall mean and be a reference to the Loan
Agreement as modified and amended hereby.
10.2 The Loan Agreement and all other Loan Documents are and shall
continue to be in full force and effect and are hereby in all
respects ratified and confirmed and shall constitute the
legal, valid, binding and enforceable obligations of each
Borrower to Agent and the Lenders.
[signature page follows]
-4-
IN WITNESS WHEREOF, the parties have entered into this
Amendment as of the date first above written.
PHONETEL TECHNOLOGIES, INC.,
an Ohio corporation
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President and Chief Executive Officer
CHEROKEE COMMUNICATIONS, INC.,
a Texas corporation
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President and Chief Executive Officer
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent and a Lender
By /s/ Xxx Xxx
-----------------------------------------------
Name: Xxx Xxx
Title: Vice President
FOOTHILL PARTNERS III, L.P.,
a Delaware limited partnership, as a Lender
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
ABLECO FINANCE LLC,
a Delaware limited liability company,
as a Lender and as agent for its affiliate assigns
By /s/ Xxxxx Xxxxx
-----------------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President and
Chief Credit Officer
