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EXHIBIT 10.14
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AMENDMENT NUMBER THREE
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TO LOAN AND SECURITY AGREEMENT
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THIS AMENDMENT NUMBER THREE TO LOAN AND SECURITY AGREEMENT (this
"Amendment") dated as of February 1, 2001, is entered into among PHONETEL
TECHNOLOGIES, INC., an Ohio corporation ("Phonetel"), CHEROKEE COMMUNICATIONS,
INC., a Texas corporation ("Cherokee," and together with Phonetel, each a
"Borrower" and collectively, jointly and severally, the "Borrowers"), on the one
hand, and, on the other hand, Agent (as hereinafter defined) and the financial
institutions (collectively, the "Lenders" and individually, a "Lender") 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,
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
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A. Borrowers have requested that the Lenders amend the Loan Agreement.
B. 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:
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 Third Amendment Effective Date,
the parties agree to amend the Loan Agreement as follows:
2.1 A. SECTION 1.1 of the Loan Agreement hereby is amended by inserting
the following new defined terms in the proper alphanumerical order:
"THIRD AMENDMENT" means that certain Amendment Number Three to Loan
and Security Agreement, dated as of February 1, 2001, among Borrowers, Lenders
and Agent.
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2.2 SECTION 2.11(e) of the Loan Agreement hereby is amended by deleting
the text "January 1, 2001" appearing in said Section and inserting the text
"April 1, 2001" in lieu thereof.
2.3 SECTION 2.6 of the Loan Agreement hereby is amended by inserting the
following new subsection (h) thereof:
(h) PAYMENT IN KIND OF CERTAIN INTEREST OWING. Notwithstanding the
provisions of subsection (c) above, interest accrued during the month of
January, 2001, otherwise due and payable on February 1, 2001, shall instead by
added to principal as of February 1, 2001, and shall thereafter accrue interest
at the rate then applicable to Advances hereunder.
III. CONDITIONS PRECEDENT TO AMENDMENT. THE SATISFACTION OF EACH OF THE
FOLLOWING UNLESS WAIVED OR DEFERRED BY 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
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 either 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
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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, 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 AND 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 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, AND TAKE ALL ACTIONS AS AGENT MAY REASONABLY REQUEST FROM TIME
TO TIME, TO PERFECT AND MAINTAIN THE PERFECTION AND PRIORITY
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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.
A. 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.
B. 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 Lenders.
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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/ John D. Chichester
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Name: John D. Chichester
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Title: Chief Executive Officer
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CHEROKEE COMMUNICATIONS, INC.,
a Texas corporation
By /s/ John D. Chichester
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Name: John D. Chichester
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Title: Chief Executive Officer
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FOOTHILL CAPITAL CORPORATION, a
California corporation, as Agent and a Lender
By /s/ Amy Lam
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Name: Amy Lam
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Title: Vice President
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FOOTHILL PARTNERS III, L.P.,
a Delaware limited partnership, as a Lender
By /s/ Dennis R. Ascher
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Name: Dennis R. Ascher
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Title: Managing General Partner
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ABLECO FINANCE LLC,
a Delaware limited liability company,
as a Lender and as agent for its successors
and assigns
By /s/ Kevin P. Genda
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Name: Kevin P. Genda
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Title: Senior Vice President and
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Chief Credit Officer
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