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EXHIBIT 10.1
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PHONETEL TECHNOLOGIES, INC.,
As Issuer,
THE SUBSIDIARY GUARANTORS
Named on Schedule I hereto
AND
MARINE MIDLAND BANK,
As Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of January 3, 1997
Supplementing the Indenture, Dated
as of December 18, 1996, among
PhoneTel Technologies, Inc., the
Subsidiary Guarantors named on
Schedule I thereto and
Marine Midland Bank, as Trustee
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$125,000,000
12% SENIOR NOTES DUE 2006
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of January 3, 1997
(the "First Supplemental Indenture"), is by and among (i) PHONETEL TECHNOLOGIES,
INC., an Ohio corporation (the "Company"), as issuer of the 12% Senior Notes due
2006 (the "Notes"), (ii) each Subsidiary of the Company existing on the date of
this Supplemental Indenture as set forth on Schedule I hereto and each of the
Company's Subsidiaries which becomes a guarantor of the Notes in compliance with
Section 4.15 of the Indenture referred to herein in which such Subsidiary agrees
to be bound by the terms of the Indenture, as guarantors of the Company's
obligations under the Indenture and the Notes (each, a "Subsidiary Guarantor"),
and (iii) Marine Mid-land Bank, as trustee (the "Trustee").
WHEREAS, the Company, the Subsidiary Guarantors as of December
18, 1996 (the "Issue Date") and the Trustee heretofore executed and delivered an
Indenture, dated as of December 18, 1996 (the "Indenture"); and
WHEREAS, pursuant to the Indenture the Company issued and the
Trustee authenticated and delivered $125 million aggregate principal amount of
the Notes, which Notes were guaranteed by each of the Company's Subsidiaries
listed on Schedule I to the Indenture; and
WHEREAS, the Company and PhoneTel CCI, Inc., a Texas
corporation and one of the Subsidiary Guarantors ("PhoneTel CCI"), have entered
into the Agreement and Plan of Merger, dated as of November 21, 1996, as amended
on December 31, 1996, with Cherokee Communications, Inc., a Texas corporation
("Cherokee"), and all of the shareholders of Cherokee (as supplemented, the
"Cherokee Merger Agreement") pursuant to which PhoneTel CCI will merge with and
into Cherokee with Cherokee being the surviving corporation (the "Merger") on
the date hereof; and
WHEREAS, as a result of the Merger, Cherokee and its two
wholly owned subsidiaries, Cherokee Communications, Inc., a South Dakota
corporation ("Cherokee-SD"), and Cherokee Communications, Inc., a Nevada
corporation ("Cherokee-NV"), will each become a Subsidiary of the Company and
PhoneTel CCI will cease to exist; and
WHEREAS, Section 4.15 of the Indenture provides
that the Company shall cause each Subsidiary of the
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Company acquired after the Issue Date to issue a Subsidiary Guarantee and to
execute and deliver an indenture supplemental to the Indenture as a Subsidiary
Guarantor; and
WHEREAS, Section 10.01(e) of the Indenture provides that in
the case of any merger of a Subsidiary Guarantor, in this case PhoneTel CCI,
into a corporation other than the Company or another Subsidiary Guarantor, as is
the case in the Merger, the Surviving Person, in this case, Cherokee, shall
expressly assume all the obligations under such Subsidiary Guarantor's
Subsidiary Guarantee and the Indenture; and
WHEREAS, Section 9.01 of the Indenture provides that the
Company, the Subsidiary Guarantors and the Trustee may amend the indenture and
the Notes without the consent of any Holder of the Notes in order to add
additional Subsidiary Guarantors pursuant to Section 4.15 of the Indenture; and
WHEREAS, this First Supplemental Indenture has been duly
authorized by all necessary corporate action on the part of the Company and the
Subsidiary Guarantors.
NOW, THEREFORE, the Company, the Subsidiary Guarantors listed
on Schedule I hereto and the Trustee agree as follows for the equal and ratable
benefit of each other and the Holders of the Notes:
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ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
SECTION 1.1. ASSUMPTION OF THE SUBSIDIARY GUARANTEE OF
PHONETEL CCI. Cherokee hereby expressly assumes the obligations of PhoneTel CCI
under its Subsidiary Guarantee and all of PhoneTel CCI's obligations under the
Indenture.
SECTION 1.2. ADDITION OF SUBSIDIARY GUARANTORS. Each of
Cherokee, Cherokee-SD and Cherokee-NV hereby expressly agrees to issue a
Subsidiary Guarantee and to be bound as, and assume the obligations of, a
Subsidiary Guarantor under the Indenture, including without limitations the
obligations set forth in Article X of the Indenture.
SECTION 1.3. TRUSTEE'S ACCEPTANCE. The Trustee hereby
accepts this First Supplemental Indenture and agrees to perform the same under
the terms and conditions set forth in the Indenture.
ARTICLE II
Miscellaneous
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SECTION 2.1. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the
execution and delivery of this First Supplemental Indenture by the Company, the
Subsidiary Guarantors listed in Schedule I hereto and the Trustee following the
consummation of the Merger, the Indenture shall be supplemented in accordance
herewith, and this First Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of Notes heretofore or hereafter
authenticated and delivered under the Indenture shall be bound thereby.
SECTION 2.2. INDENTURE REMAINS IN FULL FORCE AND EFFECT.
Except as supplemented hereby, all provisions in the Indenture shall remain in
full force and effect.
SECTION 2.3. INDENTURE AND SUPPLEMENTAL INDENTURE CONSTRUED
TOGETHER. This First Supplemental Indenture is an indenture supplemental to
and in implementation of the Indenture, and the Indenture and this First
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Supplemental Indenture shall henceforth be read and construed together.
SECTION 2.4. CONFIRMATION AND PRESERVATION OF INDENTURE. The
Indenture as supplemented by this First Supplemental Indenture is in all
respects confirmed and preserved.
SECTION 2.5. CONFLICT WITH TRUST INDENTURE ACT. If any
provision of this First Supplemental Indenture limits, qualifies or conflicts
with any provision of the TIA that is required under the TIA to be part of and
govern any provision of this First Supplemental Indenture, the provision of the
TIA shall control. If any provision of this First Supplemental Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the provision of the TIA shall be deemed to apply to the Indenture as
so modified or to be excluded by this First Supplemental Indenture, as the case
may be.
SECTION 2.6. SEVERABILITY. In case any provision in this First
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 2.7. TERMS DEFINED IN THE INDENTURE. All capitalized
terms not otherwise defined herein shall have the meanings ascribed to them in
the Indenture.
SECTION 2.8. HEADINGS. The Article and Section headings of
this First Supplemental Indenture have been inserted for convenience of
reference only, are not to be considered a part of this First Supplemental
Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 2.9. BENEFITS OF FIRST SUPPLEMENTAL INDENTURE, ETC.
Nothing in this First Supplemental Indenture or the Notes, express or implied,
shall give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders of the Notes, any benefit of
any legal or equitable right, remedy or claim under the Indenture, this First
Supplemental Indenture or the Notes.
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SECTION 2.10. SUCCESSORS. All agreements of the Company and
the Subsidiary Guarantors in this First Supplemental Indenture shall bind their
respective successors. All agreements of the Trustee in this First Supplemental
Indenture shall bind its successors.
SECTION 2.11. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The
recitals contained herein shall be taken as the statements of the Company and
the Subsidiary Guarantors, and the Trustee assumes no responsibility for their
correctness. The Trustee shall have no liability for the validity or sufficiency
of this Second Supplemental Indenture.
SECTION 2.12. CERTAIN DUTIES AND RESPONSIBILITIES OF THE
TRUSTEE. In entering into this First Supplemental Indenture, the Trustee shall
be entitled to the benefit of every provision of the Indenture relating to the
conduct or affecting the liability or affording protection to the Trustee,
whether or not elsewhere herein so provided.
SECTION 2.13. GOVERNING LAW. This First Supplemental Indenture
shall be governed by, and construed in accordance with, the laws of the State of
New York but without giving effect to applicable principles of conflicts of law
to the extent that the application of the laws of another jurisdiction would be
required thereby.
SECTION 2.14. COUNTERPART ORIGINALS. The parties may sign any
number of copies of this First Supplemental Indenture. Each signed copy shall be
an original, but all of them together represent the same agreement.
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IN WITNESS WHEREOF, the parties have caused this First
Supplemental Indenture to be duly executed as of the date first written above.
THE COMPANY:
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PHONETEL TECHNOLOGIES, INC.
By: /S/ X.X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice
President
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THE SUBSIDIARY GUARANTORS:
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PUBLIC TELEPHONE CORPORATION
WORLD COMMUNICATIONS, INC.
PARAMOUNT COMMUNICATION SYSTEMS,
INC.
NORTHERN FLORIDA TELEPHONE
CORPORATION
PAYPHONES OF AMERICA, INC.
CHEROKEE COMMUNICATIONS, INC.
(a Texas corporation and as
successor by merger with
PHONETEL CCI, INC.)
CHEROKEE COMMUNICATIONS, INC.
(a South Dakota corporation)
CHEROKEE COMMUNICATIONS, INC.
(a Nevada corporation)
For each of the above:
By: /s/ X.X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice
President
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MARINE MIDLAND BANK,
as Trustee
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Corporate Trust Officer
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Schedule I
Subsidiary Guarantors Existing on the Issue Date
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Name of Subsidiary Jurisdiction of
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Incorporation
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1. Public Telephone Corporation Indiana
2. World Communications, Inc. Missouri
3. Paramount Communication
Systems, Inc. Florida
4. Northern Florida Telephone
Corporation Florida
5. Payphones of America, Inc. Ohio
6. Cherokee Communications, Inc. Texas
7. Cherokee Communications, Inc. South Dakota
8. Cherokee Communications, Inc. Nevada
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