EXHIBIT 10.1
THIRD AMENDMENT AND WAIVER TO
AMENDED, RESTATED, AND CONSOLIDATED CREDIT AGREEMENT
This THIRD AMENDMENT AND WAIVER TO AMENDED, RESTATED, AND
CONSOLIDATED CREDIT AGREEMENT entered into as of this 11th day of August, 2004
(this "Third 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"), each of the lenders under the Amended,
Restated, and Consolidated Credit Agreement that is a signatory hereto (the
"Lenders"), and Xxxxx Fargo Foothill, Inc., formerly known as Foothill Capital
Corporation, a California corporation, as agent for the Lenders ("Agent").
RECITALS
WHEREAS, the Credit Parties, the Lenders, and Agent 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, 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 Lenders have
agreed, that Lenders waive the Existing Defaults, but only to the extent set
forth pursuant to the terms and conditions set forth herein; and
WHEREAS, the Credit Parties have requested, and the 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, the Lenders and Agent hereby agree as follows:
SECTION 1. RELATION TO THE CREDIT AGREEMENT; DEFINITIONS.
1.1 RELATION TO CREDIT AGREEMENT. This Third 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 Third 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 Third 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 2.04(b). Section 2.04(b) of the Credit
Agreement is hereby amended by adding the following new subsection (b)(viii):
(viii) Deferred Regulatory Receipts. The Credit Parties
acknowledge that $1,398,000 of Regulatory Receipts received on May 12,
2004 were not remitted to the Lenders in accordance with Section
2.04(b)(i) and the Credit Parties have requested that the payment of such
amount instead be deferred. The Lenders are willing to agree to such
request reschedule the payment of such amounts as follows: (A) on April 1,
2005, Borrowers shall pay to the Lenders the sum of $466,000; (B) on July
1, 2005, Borrowers shall pay to the Lenders the sum of $466,000; and (C)
on October 1, 2005, Borrowers shall pay to the Lenders the sum of
$466,000.
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 Third
Amendment, and (ii) Section 3.2 below, Lenders hereby waive the Existing
Defaults.
3.2 EFFECTIVENESS OF WAIVER. The waiver provided in Section 3.1
above shall terminate automatically without further action by Agent or any
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 Lenders prior to
the date hereof.
SECTION 4. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS.
4.1 REPRESENTATIONS.
Each of the Credit Parties hereby represents and warrants to
Agent and 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 Third Amendment and
to perform its respective obligations under this Third Amendment;
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(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 Third Amendment. This Third
Amendment has been duly executed and 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 Third Amendment have been executed and
delivered by the Lenders, Agent and each Credit Party.
SECTION 6. MISCELLANEOUS.
6.1 CROSS-REFERENCES. References in this Third Amendment to any
Section (or "Section") are, unless otherwise specified, to such Section (or
"Section") of this Third Amendment.
6.2 SUCCESSORS AND ASSIGNS. This Third Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
6.3 COUNTERPARTS. This Third 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 Third Amendment by facsimile transmission shall be as effective as delivery
of an originally executed counterpart hereof.
6.4 GOVERNING LAW. THIS THIRD 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 $118,394,616.23 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.
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(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 and discharge
each of the Lenders and Agent, and each of their respective 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 Lender or Agent 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 Third
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 Third Amendment,
without which the consideration would not have been given by the Lenders 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
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part of any Credit Party which would require the consent of the Lenders under
the Credit Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
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
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PHONETEL TECHNOLOGIES, INC.,
an Ohio corporation
By: /s/ XXXXXX XXXXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
CHEROKEE COMMUNICATIONS, INC.,
a Texas corporation
By: /s/ XXXXXX XXXXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PARENT GUARANTOR: DAVEL COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ XXXXXX XXXXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
SUBSIDIARY GUARANTORS: DAVEL COMMUNICATIONS GROUP, INC.,
an Illinois corporation
ADTEC COMMUNICATIONS, INC.,
a Florida corporation
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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
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PEOPLES ACQUISITION CORPORATION,
a Pennsylvania corporation
PEOPLES COLLECTORS, INC.,
a Delaware corporation
PEOPLES TELEPHONE COMPANY, INC.,
a New York corporation
PEOPLES TELEPHONE COMPANY, INC.,
a New Hampshire corporation
PTC CELLULAR, INC.,
a Delaware corporation
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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
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
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AGENT: XXXXX FARGO FOOTHILL, INC.,
as Agent and as a Lender
By: /s/ XXX XXX
----------------------------------------
Name: Xxx Xxx
Title: Vice President
LENDERS: FOOTHILL PARTNERS III, L.P. as a Lender
By: /s/ XXXX XXXXXX
----------------------------------------
Name: Xxxx Xxxxxx
Title: Managing General Partner
ABLECO FINANCE LLC,
as a Lender and agent for its affiliate assigns
By: /s/ XXXXX XXXXX
----------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President &
Chief Credit Officer
CERBERUS PARTNERS, L.P., as a Lender
By: Cerberus Associates, LLC, as General
Partner
By: /s/ XXXXXXX XXXXXXXX
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Member
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ARK CLO 2000-1, LIMITED, as a Lender
By: Patriarch Partners, LLC
its Collateral Manager
By: /s/ XXXX XXXXXX
----------------------------------------------------
Name: Xxxx Xxxxxx
Title: Manager
PNC BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ XXXXX X. XXXXX
----------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
BNP PARIBAS, as a Lender
By: /s/ XXXXX XXXXXXXXX XXXXX /s/ XXXXXXX XXXXXXXX
----------------------------------------------------
Name: Xxxxx Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxxx
Title: Vice President Vice President
XXXXXX XXXXXXX PRIME INCOME
TRUST, as a Lender
By: /s/ XXXXX XXXX
----------------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
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AVENUE SPECIAL SITUATIONS FUND II, LP,
as a Lender
By: /s/ XXXXX X. XXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: General Partner
By: Avenue Capital Partners II, LLC,
General Partner
By: GL Partners II, LLC, Managing
Member of the General Partner
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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)(iii) of the Credit Agreement for failure to
achieve minimum Adjusted EBITDA of at least <$300,000> for the period 1/1/04 -
6/30/04.
Under Section 6.01(b)(ii) of the Credit Agreement for failure to
achieve minimum EBITDA of at least $2,500,000 for the period 1/1/04 - 6/30/04.
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