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Exhibit 10.1
AMENDMENT NUMBER SEVEN
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TO LOAN AND SECURITY AGREEMENT
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THIS AMENDMENT NUMBER SEVEN TO LOAN AND SECURITY AGREEMENT
(this "Amendment") dated as of August 13, 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 Seventh 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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"SEVENTH AMENDMENT" means that certain Amendment Number Seven to Loan
and Security Agreement, dated as of August 13, 2001, among Borrowers,
Lenders and Agent.
"SEVENTH AMENDMENT EFFECTIVE DATE" means the date that all conditions
set forth in SECTION 4 of the Seventh Amendment have been satisfied.
2.2 SECTION 2.6 of the Loan Agreement hereby is amended by inserting the
following new subsection (l) thereof:
(l) PAYMENT IN KIND OF CERTAIN INTEREST OWING. Notwithstanding the
provisions of subsections (c), (h), (i), (j), and (k) above, (A)
interest accrued during the month of May, 2001, otherwise due and
payable on June 1, 2001, shall instead be added to principal as of
June 1, 2001, and shall thereafter accrue interest at the rate then
applicable to Advances hereunder, (B) interest accrued during the
month of June, 2001, otherwise due and payable on July 1, 2001, shall
instead be added to principal as of July 1, 2001, and shall thereafter
accrue interest at the rate then applicable to Advances hereunder, and
(C) interest accrued during the month of July, 2001, otherwise due and
payable on August 1, 2001, shall instead be added to principal as of
August 1, 2001, and shall thereafter accrue interest at the rate then
applicable to Advances hereunder.
III. WAIVER TO THE LOAN AGREEMENT. Upon the Seventh Amendment Effective Date,
the parties agree to certain waivers as follows:
3.1 WAIVER OF CERTAIN FINANCIAL COVENANTS FOR THE QUARTER ENDED JUNE 30,
2001. 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), 7.20(e), and 7.20(g), only for the period
ending June 30, 2001.
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
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(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.
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
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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.
10.1 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.
10.2 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 VP and C.C.O.
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