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EXHIBIT 10.15
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AMENDMENT NUMBER FOUR
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TO LOAN AND SECURITY AGREEMENT
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THIS AMENDMENT NUMBER FOUR TO LOAN AND SECURITY AGREEMENT (this
"Amendment") dated as of March 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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WHEREAS, Borrowers have requested that the Lenders amend the Loan
Agreement; and
WHEREAS, 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:
AGREEMENT
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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 Fourth Amendment Effective
Date, the parties agree to amend the Loan Agreement as follows:
2.1 SECTION 1.1 of the Loan Agreement hereby is amended by inserting the
following new defined terms in the proper alphanumerical order:
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"FOURTH AMENDMENT" means that certain Amendment Number Four to Loan
and Security Agreement, dated as of March 1, 2001, among Borrowers,
Lenders and Agent.
"FOURTH AMENDMENT EFFECTIVE DATE" means the date that all conditions
set forth in SECTION 3 of the Fourth Amendment have been satisfied.
2.2 SECTION 2.5 of the Loan Agreement hereby is amended and restated in
its entirety to read as follows:
2.5 OVERADVANCES. If, at any time or for any reason, the amount of
Obligations owed by Borrower to the Lender Group pursuant to SECTIONS
2.1 AND 2.12 exceeds the limitations set forth in SECTIONS 2.1 OR 2.12
by an amount in excess of $2,410,000 (an "OVERADVANCE"), Borrower
immediately shall pay to Agent, in cash, the amount of such excess,
which amount shall be used by Agent to reduce the Obligations in
accordance with the priority set forth in SECTION 2.4(b). In addition,
Borrower hereby promises to pay the Obligations (including principal,
interest, fees, costs, and expenses) in Dollars (except to the extent
that Borrower has exercised its option to make payment in kind of
certain interest and fees under the terms of this Agreement) in full
to the Lender Group as and when due and payable under the terms of
this Agreement and the other Loan Documents.
2.3 SECTION 2.6 of the Loan Agreement hereby is amended by inserting the
following new subsection (i) thereof:
(i) PAYMENT IN KIND OF CERTAIN INTEREST OWING. Notwithstanding the
provisions of subsections (c) and (h) above, interest accrued during
the month of February, 2001, otherwise due and payable on March 1,
2001, shall instead be added to principal as of March 1, 2001, and
shall thereafter accrue interest at the rate then applicable to
Advances hereunder.
2.3 SECTION 7.20(f) of the Loan Agreement hereby is amended and restated
in its entirety to read as follows:
(f) MINIMUM NUMBER OF OPERATING TELEPHONES. Borrower will not permit
the number of revenue producing operating Telephones which Agent has
approved as Eligible Pay Telephones at any time to be less than 33,500
such Telephones from the Closing Date through the Maturity Date.
III. WAIVER TO THE LOAN AGREEMENT. Upon the Fourth Amendment Effective Date,
the parties agree to certain waivers as follows:
3.1 WAIVER OF SECTION 7.20(f) OF THE LOAN AGREEMENT. The parties hereby
agree to waive Borrower's compliance with SECTION 7.20(f) of the Loan
Agreement with respect to time periods before the Fourth Amendment
Effective Date.
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3.2 WAIVER OF CERTAIN FINANCIAL COVENANTS FOR THE QUARTER ENDED
DECEMBER 31, 2000. Agent hereby waives any Default or Event of Default
solely with respect to Borrower's failure to comply with SECTIONS
7.20(a), 7.20(b), 7.20(c), 7.20(d), and 7.20(e), only for the period
ending December 31, 2000.
IV. 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:
4.1 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;
4.2 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);
4.3 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
4.4 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.
V. 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 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.
VI. 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.
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VII. 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.
VIII. 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.
IX. 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 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.
X. 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.
[signature page follows]
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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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