Exhibit 10.21
SECOND AMENDMENT
TO THE CREDIT AGREEMENT
-----------------------
SECOND AMENDMENT, dated as of July 23, 2002 (this
"AMENDMENT"), to the Credit Agreement, dated as of February 19, 2002 (as
amended, restated, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), by and among Davel Financing Company, L.L.C., a Delaware
limited liability company (the "Davel Borrower"), PhoneTel Technologies, Inc.,
an Ohio corporation ("PhoneTel"), Cherokee Communications, Inc., a Texas
corporation ("Cherokee", and together with PhoneTel, collectively the "PhoneTel
Borrowers" and individually a "PhoneTel Borrower"), Davel Communications, Inc.,
a Delaware corporation (the "Davel Parent"), each of the Domestic Subsidiaries
(as defined herein) of any Borrower or the Davel Parent, Xxxxxxxxx L.L.C., a
Delaware limited liability company ("Xxxxxxxxx") and ARK CLO 2000-1, Limited, a
Cayman Islands entity ("ARK" and together with Xxxxxxxxx and each of their
respective successors and permitted assigns, the "Lenders").
PREAMBLE
The Borrowers and Guarantors have requested an amendment to
the Minimum EBITDA and the Minimum Adjusted EBITDA covenants set forth in
Section 6.01(b) of the Credit Agreement. Accordingly, the parties hereto hereby
agree as follows:
1. INCORPORATED DEFINITIONS. Any capitalized term used herein which is
defined in the Credit Agreement and not otherwise defined herein shall have the
meaning assigned to it in the Credit Agreement.
2. AMENDMENTS. (a) Section 6.01(b)(ii) of the Credit Agreement is
hereby amended by (i) deleting the Minimum EBITDA amounts for the months of July
2002 through June 2003 and (ii) inserting the following Minimum EBITDA amounts
for the appropriate months as indicated below:
PERIOD ENDING EBITDA
------------- ------
July, 2002 $ 1,219,000
August, 2002 3,582,000
September, 2002 5,346,000
October, 2002 6,180,000
November, 2002 6,642,000
December, 2002 10,186,000
January, 2003 10,701,000
February, 2003 11,098,000
March, 2003 13,125,000
April, 2003 14,207,000
May, 2003 15,506,000
June, 2003 18,065,000
(b) Section 6.01(b)(iii) of the Credit Agreement is hereby amended by
(i) deleting the Minimum Adjusted EBITDA amounts for the months of July 2002
through June 2003 and (ii)
inserting the following Minimum Adjusted EBITDA amounts for the appropriate
months as indicated below:
PERIOD ENDING EBITDA
------------- ------
July, 2002 $ (3,761,000)
August, 2002 (2,633,000)
September, 2002 (477,000)
October, 2002 444,000
November, 2002 906,000
December, 2002 1,733,000
January, 2003 2,248,000
February, 2003 2,645,000
Xxxxx, 0000 3,471,000
April, 2003 4,554,000
May, 2003 5,853,000
June, 2003 7,211,000
3. CONDITIONS. This Amendment shall become effective only upon
satisfaction in full of the following conditions precedent (the first date upon
which all such conditions shall have been satisfied being herein called the
"AMENDMENT EFFECTIVE DATE");
a) The representations and warranties contained in this Amendment
and in Article V of the Credit Agreement and each other Loan Document shall be
correct in all material respects on and as of the Amendment Effective Date as
though made on and as of such date (except where such representations and
warranties relate to an earlier date in which case such representations and
warranties shall be true and correct as of such earlier date).
b) No Default or Event of Default or, shall have occurred and be
continuing on the Amendment Effective Date or result from this Amendment
becoming effective in accordance with its terms.
c) The Lenders shall have received counterparts of this Amendment
which bear the signatures of the Borrowers and the Guarantors.
d) All legal matters incident to this Amendment shall be
satisfactory to the Lenders and their counsel.
4. REPRESENTATIONS AND WARRANTIES. To induce the Lenders to enter into
this Amendment, each Credit Party hereby represents and warrants to the Lenders
as follows:
(a) ORGANIZATION, GOOD STANDING, ETC. Each Credit Party (i) is a
corporation, limited liability company or limited partnership duly organized,
validly existing and in good standing under the laws of the state or
jurisdiction of its organization, (ii) has all requisite power and authority to
conduct its business as now conducted and as presently contemplated, and to
execute and deliver this Amendment, and to consummate the transactions
contemplated hereby and by the Credit Agreement, as amended hereby, and (iii) is
duly qualified to do business and is
in good standing in each jurisdiction in which the character of the properties
owned or leased by it or in which the transaction of its business makes such
qualification necessary, except in the case of clause (iii) where the failure to
be so qualified would not reasonably be expected to have a Material Adverse
Effect.
(b) AUTHORIZATION, ETC. The execution, delivery and performance of
this Amendment and each other Loan Document being executed in connection with
this Amendment by each Credit Party that is a party thereto, and the performance
of the Credit Agreement as amended hereby (i) have been duly authorized by all
necessary action, (ii) do not and will not contravene such Credit Party's
charter or by-laws, its limited liability company or operating agreement or its
certificate of partnership or partnership agreement, as applicable, or any
applicable law or any material contractual restriction binding on or otherwise
affecting it or any of its properties, (iii) do not and will not result in or
require the creation of any Lien (other than pursuant to any Loan Document) upon
or with respect to any of its properties, and (iv) do not and will not result in
any default, noncompliance, suspension, revocation, impairment, forfeiture or
nonrenewal of any material permit, license, authorization or approval applicable
to its operations or any of its properties.
(c) GOVERNMENTAL APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or other
regulatory body is required in connection with the due execution, delivery and
performance by such Credit Party of this Amendment or any other Loan Document to
which it is a party being executed in connection with this Amendment, or for the
performance of the Credit Agreement, as amended hereby.
(d) ENFORCEABILITY OF LOAN DOCUMENTS. Each of this Amendment, the
Credit Agreement, as amended hereby, and each other Loan Document to which such
Credit Party is a party is a legal, valid and binding obligation of such Credit
Party, enforceable against such Credit Party in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws of general
application relating to the enforcement of creditor's rights and by general
equitable principles.
(e) REPRESENTATIONS AND WARRANTIES; NO EVENT OF DEFAULT. The
representations and warranties herein, in Article V of the Credit Agreement and
in each other Loan Document, certificate or other writing delivered on or on
behalf of any Credit Party to the Collateral Agent or any Lender pursuant to the
Credit Agreement or any other Loan Document on or prior to the Amendment
Effective Date are true and correct on and as of the Amendment Effective Date as
though made on and as of such date (except where such representations and
warranties relate to an earlier date in which case such representations and
warranties shall be true and correct as of such earlier date), and no Default or
Event of Default has occurred and is continuing as of the Amendment Effective
Date or would result from this Amendment becoming effective in accordance with
its terms.
5. COSTS AND EXPENSES. The Credit Parties agree to pay upon demand all
reasonable expenses, including reasonable attorneys' and legal assistants' fees,
all recording fees and charges, or other fees or charges incurred by the Lenders
in connection with the preparation, negotiation and execution of this Amendment
and all documents related thereto and any document required to be furnished
herewith.
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6. CONTINUED EFFECTIVENESS OF THE CREDIT AGREEMENT AND LOAN DOCUMENTS.
Each Credit Party hereby (a) acknowledges and consents to this Amendment, (b)
confirms and agrees that each Loan Document to which it is a party is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects except that on and after the date hereof all references in any such
Loan Document to "the Credit Agreement", "thereto", "thereof", "thereunder" or
words of like import referring to the Credit Agreement shall mean the Credit
Agreement as amended by this Amendment, and (c) confirms and agrees that to the
extent that any such Loan Document purports to assign or pledge to the
Collateral Agent, or to grant a security interest in or lien on, any collateral
as security for the obligations of the Borrowers from time to time existing in
respect of the Credit Agreement, such pledge, assignment or grant of the
security interest or lien is hereby ratified and confirmed in all respects.
7. MISCELLANEOUS.
(a) This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart by
telefacsimile shall be equally effective as delivery of an original executed
counterpart of this Amendment. Any party delivering an executed counterpart of
this Amendment also shall deliver an original executed counterpart of this
Amendment, but the failure to deliver an original executed counterpart shall not
affect the validity, enforceability and binding effect of this Amendment.
(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PREPARED IN THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES.
(d) Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered as of the date set forth on the first
page hereof.
BORROWERS: DAVEL FINANCING COMPANY, L.L.C.,
---------
a Delaware limited liability company
By: DAVEL COMMUNICATIONS, INC.,
its sole managing member
By: /s/Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: President
PHONETEL TECHNOLOGIES, INC.,
an Ohio corporation
By: /s/Xxxx X. Xxxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Chief Executive Officer & President
CHEROKEE COMMUNICATIONS, INC.,
a Texas corporation
By: /s/Xxxx X. Xxxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Chief Executive Officer & President
DAVEL PARENT GUARANTOR: DAVEL COMMUNICATIONS, INC.,
----------------------- a Delaware corporation
By: /s/Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: President
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 COMMUNICATIONS GROUP, INC.,
an Illinois corporation
DAVEL MEDIA, INC.,
a Delaware corporation
DAVEL MEXICO, LTD.,
an Illinois corporation
DAVELTEL, INC.,
An Illinois corporation
DF MERGER CORP.,
a Delaware 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
PEOPLES TELEPHONE COMPANY, INC.,
a New York corporation
PEOPLES TELEPHONE COMPANY, INC.,
a New Hampshire corporation
PT MERGER CORP.,
an Ohio 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/Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: President
By
-----------------------------
Name:
Title:
LENDERS: XXXXXXXXX L.L.C.
-------
By: /s/Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: V.P.
ARK CLO 2000-1, LIMITED
BY: PATRIARCH PARTNERS, LLC
ITS COLLATERAL MANAGER
By: /s/Xxxx Xxxxxx
-----------------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
ARK INVESTMENT PARTNERS II, L.P.
BY: PATRIARCH PARTNERS III, LLC
ITS INVESTMENT ADVISOR
By: /s/Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
