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Exhibit 4.6
FOURTH AMENDMENT TO THE FOURTH AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO THE FOURTH AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT (this "Amendment") is made and entered into as of the 30th
day of June, 1998, by and among PEOPLES TELEPHONE COMPANY, INC., a New York
corporation ("Borrower"), each of the Lenders signatory hereto (hereinafter
referred to individually as a "Lender" and collectively as the "Lenders"), and
CREDITANSTALT CORPORATE FINANCE, INC., a Delaware corporation, as successor
agent for the Lenders (in such capacity, together with its successors and
assigns in such capacity, hereinafter referred to as the "Agent");
W I T N E S S E T H:
WHEREAS, on March 12, 1990, Borrower entered into a certain Loan and
Security Agreement, dated as of March 12, 1990, as amended (as so amended, the
"Original Loan Agreement"), among Borrower, the banks party thereto and
Creditanstalt-Bankverein, as agent (the "Original Agent"), pursuant to which
such banks made available to Borrower a revolving credit facility; and
WHEREAS, the Original Loan Agreement was superseded by that certain
Amended and Restated Loan and Security Agreement, dated as of May 4, 1992 (the
"First Restated Agreement") among the Borrower, the banks party thereto and the
Original Agent; and
WHEREAS, the First Restated Agreement was superseded by that certain
Second Amended and Restated Loan and Security Agreement, dated as of March 29,
1993 (the "Second Restated Agreement") among Borrower and PTC Cellular, Inc., a
Delaware corporation, as borrowers, the banks party thereto and the Original
Agent; and
WHEREAS, the Second Restated Agreement was superseded by that certain
Third Amended and Restated Loan and Security Agreement, dated as of February 17,
1994 (the "Third Restated Agreement") among the Borrower, the lenders party
thereto and the Original Agent; and
WHEREAS, the Third Restated Agreement was superseded by that certain
Fourth Amended and Restated Loan and Security Agreement, dated as of July 19,
1995 (the "Fourth Restated Agreement") among the Borrower, the lenders party
thereto (the "Lenders") and the Original Agent; and
WHEREAS, the Fourth Restated Agreement was amended on November 29, 1995
pursuant to a certain Waiver and First Amendment to Fourth Amended and Restated
Loan Agreement, a certain Second Amendment to Fourth Amended and Restated Loan
Agreement dated April 4, 1996 and a certain Third Amendment to Fourth Amended
and Restated Loan Agreement dated March 26, 1997;
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WHEREAS, Borrower has requested that the Lenders and the Agent agree to
modify certain financial covenants for the fiscal quarter ending June 30, 1998;
WHEREAS, the Lenders and the Agent are willing to modify such financial
covenants on the condition that the Fourth Restated Agreement is amended as set
forth herein;
NOW, THEREFORE, for and in consideration of the foregoing premises, the
mutual promises, covenants and agreements contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not expressly
defined herein shall have the same respective meanings given to such terms in
the Fourth Restated Agreement.
2. AMENDMENTS. The Fourth Restated Agreement is hereby further amended
by deleting Sections 8.1 and 8.2 thereof in their entirety and by substituting
therefor new Sections 8.1 and 8.2 to read as follows:
8.1 OPERATING CASH FLOW. Borrower shall maintain, as of the
last day of each fiscal quarter of Borrower, Operating Cash Flow for
the four fiscal quarter period then ending of not less than the amount
set forth below opposite each such applicable period:
APPLICABLE PERIOD AMOUNT
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10/01/97 - 12/31/97 $22,500,000
01/01/98 - 03/31/98 $24,500,000
04/01/98 - 6/30/98 $23,000,000
07/01/98 - 09/30/98 $24,000,000
10/01/98 - 12/31/98 $22,500,000
01/01/99 - 03/31/99 $23,500,000
04/01/99 - 06/30/99 $24,500,000
07/01/99 - 09/30/99 $25,500,000
Each Fiscal Quarter Thereafter $26,500,000
8.2 INTEREST COVERAGE RATIO. Borrower shall maintain, as of
the last day of each fiscal quarter, an Interest Coverage Ratio for
the four fiscal quarter period then ending of not less than the
ratio set forth below opposite each such applicable period:
APPLICABLE PERIOD RATIO
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10/01/97 - 12/31/97 1.50:1.00
01/01/98 - 06/30/99 1.75:1.00
Each Fiscal Quarter thereafter 2.00:1.00
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3. CONDITIONS PRECEDENT. This Amendment shall not become effective
unless and until the following conditions have been met, to the sole and
complete satisfaction of the Lenders, the Agent and their respective counsel:
(a) REPRESENTATIONS AND WARRANTIES. Giving effect to this
Amendment, all of the representations and warranties made by Borrower under the
Fourth Restated Agreement and the Loan Documents shall be true and correct in
all material respects as of the date hereof with the same force and effect as if
made on and as the date hereof except for such changes in such representations
and warranties which do not constitute a Default or Event of Default, which do
not, individually or in the aggregate, have a Material Adverse Effect and which
have, to the extent required, been disclosed to the Agent and the Lenders
pursuant to Section 6.2 or 6.8 of the Fourth Restated Agreement or otherwise;
(b) NO MATERIAL ADVERSE CHANGE. Since December 31, 1997, there
shall not have occurred any material adverse change in the assets, liabilities,
business, operations or condition (financial or otherwise) of the Borrower, or
any event, condition, or state of facts which would be expected to have a
Material Adverse Effect subsequent to the date hereof;
(c) DOCUMENTATION. The Agent and the Lenders shall have
received this Amendment, duly executed and delivered to the Agent and the
Lenders.
4. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. Borrower hereby
represents and warrants to the Agent and the Lenders that (a) giving effect to
the amendments set forth in Section 2 of this Amendment, all of Borrower's
representations and warranties contained in the Fourth Restated Agreement and
the other Loan Documents are true and correct on and as of the date of
Borrower's execution of this Agreement; (b) except in respect of the covenants
referenced in Section 2 hereof, no Default or Event of Default has occurred and
is continuing as of such date under any Loan Document; (c) Borrower has the
power and authority to enter into this Agreement and to perform all of its
obligations hereunder; (d) the execution, delivery and performance of this
Agreement have been duly authorized by all necessary corporate action on the
part of Borrower; and (e) the execution and delivery of this Agreement and
performance thereof by Borrower does not and will not violate the Articles of
Incorporation, By-laws or other organizational documents of the Borrower and
does not and will not violate or conflict with any law, order, writ, injunction,
or decree of any court, administrative agency or other governmental authority
applicable to Borrower or its properties.
5. EXPENSES. Borrower agrees to pay, immediately upon demand by the
Agent, all costs, expenses, attorneys' fees and other charges and expenses
actually incurred by the Agent in connection with the negotiation, preparation,
execution and delivery of this Agreement and any other instrument, document,
agreement or amendment executed in connection with this Agreement.
6. DEFAULTS HEREUNDER. The breach of any representation, warranty or
covenant contained herein or in any document executed in connection herewith, or
the failure to serve or comply with any term or agreement contained herein shall
constitute a Default or Event of Default
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under the Fourth Restated Agreement and the Agent and the Lenders shall be
entitled to exercise all rights and remedies they may have under the Fourth
Restated Agreement, any other documents executed in connection therewith and
applicable law.
7. REFERENCES. All references in the Fourth Restated Agreement and the
Loan Documents to the Fourth Restated Agreement shall hereafter be deemed to be
references to the Fourth Restated Agreement as amended hereby and as the same
may hereafter be amended from time to time.
8. LIMITATION OF AGREEMENT. Except as especially set forth herein, this
Agreement shall not be deemed to waive, amend or modify any term or condition of
the Fourth Restated Agreement, each of which is hereby ratified and reaffirmed
and which shall remain in full force and effect, nor to serve as a consent to
any matter prohibited by the terms and conditions thereof.
9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and any party hereto may execute any counterpart, each of which,
when executed and delivered, will be deemed to be an original and all of which,
taken together will be deemed to be but one and the same agreement.
10. FURTHER ASSURANCES. Borrower agrees to take such further action as
the Agent or the Majority Lenders shall reasonably request in connection
herewith to evidence the amendments herein contained to the Fourth Restated
Agreement.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the successors and permitted assigns of the parties
hereto.
12. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of law.
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13. NO CLAIM. Borrower hereby represents, warrants, acknowledges and
agrees to and with the Lenders and Agent that (a) Borrower neither holds nor
claims any right of action, claim, cause of action or damages, either at law or
in equity, against the Lenders and Agent which arises from, may arise from,
allegedly arise from, are based upon or are related in any manner whatsoever to
the Fourth Restated Agreement and the Loan Documents or which are based upon
acts or omissions of the Lenders or Agent in connection therewith and (b) the
Obligations are absolutely owed to the Lenders and Agent, without offset,
deduction or counterclaim.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
under seal as of the date first written above.
"BORROWER"
PEOPLES TELEPHONE COMPANY, INC.
By: /s/ WILLIAM A. BAUM
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William A. Baum
Senior Vice President and Chief Financial Officer
Attest: /s/ BRUCE W. RENARD
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Bruce W. Renard
Secretary
[CORPORATE SEAL]
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"AGENT"
CREDITANSTALT CORPORATE FINANCE, INC.
By: /s/ ROBERT M. BIRINGER
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Robert M. Biringer
Executive Vice President
By: /s/ WILLIAM E. MCCOLLUM, JR
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Name: William E. McCollum
Title: Senior Associate
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[Signatures Continued From Previous Page]
"LENDER"
CREDITANSTALT CORPORATE FINANCE, INC.
By: /s/ ROBERT M. BIRINGER
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Robert M. Biringer
Executive Vice President
By: /s/ WILLIAM E. MCCOLLUM, JR
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Name: William E. McCollum, Jr
Title: Senior Associate
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