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EXHIBIT (c) 3.
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SECOND AMENDMENT TO CREDIT AGREEMENT
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THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "AMENDMENT"), dated as
of June ___, 1996, among PHONETEL TECHNOLOGIES, INC., an Ohio corporation (the
"BORROWER"), INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, a Delaware
corporation ("ING") and CERBERUS PARTNERS, L.P., a Delaware limited partnership
("CERBERUS"), constituting all of the Lenders under the Credit Agreement
referenced below, and ING in its capacity as Agent for the Lenders.
W I T N E S S E T H:
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RECITALS:
A. The Borrower, the Lenders and the Agent have entered into a certain
Credit Agreement, dated as of March 15, 1996, as amended by that certain First
Amendment to Credit Agreement entered into among Borrower, the Lenders and the
Agent, dated as of April 11, 1996, as amended to the date hereof (the "CREDIT
AGREEMENT"). Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to such terms in the Credit Agreement.
B. The Borrower has requested an amendment to the Credit Agreement to
authorize and finance the purchase of substantially all of the assets of ACI-HDT
Supply Company, Amtel Communications Services, Inc., Amtel Communications
Correctional Facilities, Inc., Amtel Communications, Inc. and Amtel
Communications Payphones, Inc.
C. The Lenders are agreeable to amending the Credit Agreement on the
terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. AMENDMENT TO SECTION 1.1. Section 1.1 of the Credit
Agreement is hereby amended by inserting the following definitions in the
appropriate alphabetical order:
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"AMTEL" means, collectively, all of the following: ACI-HDT
Supply Company, a California corporation, Amtel Communication Services,
Inc., a California corporation, Amtel Communications Correctional
Facilities, Inc., a California corporation, Amtel Communications, Inc.,
a California corporation, and Amtel Communications Payphones, Inc., a
California corporation.
"AMTEL CLOSING DATE" means the earlier of (x) the consummation
of the Amtel Purchase or (y) the termination of the Amtel Purchase
Agreement or (z) December 31, 1996.
"AMTEL PURCHASE" means the purchase by Borrower of the
"Payphone Operating Assets" (as such term is defined in the Amtel
Purchase Agreement) of Amtel for the "Consideration" (as such term is
defined in the Amtel Purchase Agreement) pursuant to the terms and
conditions of the Amtel Purchase Agreement, the form of which is
attached as Exhibit A to the Second Amendment.
"AMTEL PURCHASE AGREEMENT" means that certain Asset Purchase
Agreement, dated June ___, 1996, among the Borrower and Amtel.
"SECOND AMENDMENT" means the Second Amendment to Credit
Agreement dated as of June __, 1996, among the Borrower, ING, Cerberus
and ING in its capacity as Agent.
SECTION 2. AMENDMENT TO SECTION 1.1. Section 1.1 of the Credit
Agreement is hereby further amended by deleting the existing definition of
"REVOLVING A LOAN AVAILABILITY" and substituting in lieu thereof the following:
"REVOLVING A LOAN AVAILABILITY" means, (a) at all times prior to
the Amtel Closing Date, the excess of (i) the lesser of (A) the
Revolving A Loan Commitment Amount or (B) the Borrowing Base for
Revolving A Loans MINUS (ii) the then aggregate principal amount of all
outstanding Revolving A Loans less $1,352,500 and (b) at all times on or
after the Amtel Closing Date, the excess of (i) the lesser of (A) the
Revolving A Loan Commitment Amount or (B) the Borrowing Base for
Revolving A Loans MINUS (ii) the then aggregate principal amount of all
outstanding Revolving A Loans.
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SECTION 3. AMENDMENT TO SECTION 2.1.4.(a). Section 2.1.4.(a) of the
Credit Agreement is hereby amended by deleting said section in its entirety and
substituting in lieu thereof the following:
"SECTION 2.1.4. AGENT AND LENDERS NOT REQUIRED TO EXTEND CREDIT
UNDER REVOLVING LOAN COMMITMENT.
(a) At all times prior to the Amtel Closing Date, no Lender
shall be required to make any Revolving Loan, if after giving effect to
thereto:
(1) the then aggregate outstanding principal amount of
all Revolving A Loans, PLUS the then aggregate outstanding
principal amount of the Term Loan, MINUS $1,352,500, would
exceed the Borrowing Base for Revolving A Loans and the Term
Loan; or
(2) the then aggregate outstanding principal amount of
all Revolving B Loans would exceed the Borrowing Base for
Revolving B Loans; or
(3) the then aggregate outstanding principal amount of
all Revolving A Loans or all Revolving B Loans would exceed the
Revolving A Loan Commitment Amount or the Revolving B Loan
Commitment Amount, respectively; or
(4) the then aggregate outstanding principal amount of
such Lender's Revolving Loans would exceed its Revolving
Percentage of the Revolving Loan Commitment Amount; or
(5) the then aggregate outstanding principal amount of
such Lender's Revolving A Loans or Revolving B Loans would
exceed its Revolving Percentage of the Revolving A Loan
Commitment Amount or the Revolving B Loan Commitment Amount,
respectively.
(b) At all times on or after the Amtel Closing Date, no Lender
shall be required to make any Revolving Loan, if after giving effect
thereto:
(1) the then aggregate outstanding principal amount of
all Revolving A Loans PLUS the then aggregate outstanding
principal amount of the Term Loan would exceed the Borrowing
Base for Revolving A Loans and the Term Loan; or
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(2) the then aggregate outstanding principal amount of
all Revolving B Loans would exceed the Borrowing Base for
Revolving B Loans; or
(3) the then aggregate outstanding principal amount of
all Revolving A Loans or all Revolving B Loans would exceed the
Revolving A Loan Commitment Amount or the Revolving B Loan
Commitment Amount, respectively; or
(4) the then aggregate outstanding principal amount of
such Lender's Revolving Loans would exceed its Revolving
Percentage of the Revolving Loan Commitment Amount; or
(5) the then aggregate outstanding principal amount of
such Lender's Revolving A Loans or Revolving B Loans would
exceed its Revolving Percentage of the Revolving A Loan
Commitment Amount or the Revolving B Loan Commitment Amount,
respectively.
Subject to the terms hereof, the Borrower may from time to time borrow,
repay, and reborrow Revolving A Loans and Revolving B Loans, in all
cases pursuant to the Revolving A Loan Commitment or the Revolving B
Loan Commitment, respectively. The Term Loan or any portion thereof
once repaid may not be reborrowed."
SECTION 4. AMENDMENT TO SECTION 3.3.1(b)(i). Section 3.3.1(b)(i) of
the Credit Agreement is hereby amended by deleting said section in its entirety
and substituting in lieu thereof the following:
"(b) (i) shall, (A) on any Business Day prior to the Amtel
Closing Date on which the aggregate outstanding principal amount of all
Revolving A Loans PLUS the aggregate outstanding principal amount of
the Term Loan MINUS $1,352,500 exceeds the Borrowing Base for Revolving
A Loans and the Term Loan, make a mandatory prepayment of the
outstanding principal amount of Revolving A Loans and the Term Loan in
an amount equal to such excess amount (such prepayment to be applied
first to all of the Revolving A Loans until paid in full and then to
the Term Loan), and (B) on any Business Day on or after the Amtel
Closing Date on which the aggregate outstanding principal amount of all
Revolving A Loans PLUS the aggregate outstanding principal amount of
the Term Loan exceeds the Borrowing Base for Revolving A Loans and Term
Loan, the Borrower shall make a mandatory prepayment of the outstanding
principal amount of Revolving A Loans and the Term Loan in an amount
equal to such excess
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amount (such prepayment to be applied first to all of the Revolving A
Loans until paid in full and then to the Term Loan);"
SECTION 5. AMENDMENT TO SECTION 3.9(b). Section 3.9(b) of the Credit
Agreement is hereby amended by deleting said section in its entirety and
substituting in lieu thereof the following:
"(b) Borrower shall use the proceeds of (i) Revolving A Loans
made after the Closing Date and prior to or on the Amtel Closing Date
only for the purpose of paying the consideration required under the
Amtel Purchase Agreement and for the payment of the Amendment Fee
payable pursuant to the Second Amendment, (ii) Revolving A Loans made
after the Amtel Closing Date to finance other acquisitions (PROVIDED,
HOWEVER, that this clause (ii) shall not be construed to permit any
acquisitions which are otherwise prohibited by the terms of this
Agreement or the other Loan Documents), and (iii) the Revolving B Loans
made after the Closing Date to finance its continuing working capital
needs; PROVIDED, HOWEVER, that the Revolving B Loans shall not be used
to repay any other outstanding Loan."
SECTION 6. AMENDMENT TO ARTICLE 5. Article 5 of the Credit Agreement is
hereby amended by inserting the following Section 5.33 at the end of such
article:
"SECTION 5.33. AMTEL PURCHASE AGREEMENT. Borrower shall not
execute and deliver any agreement relating to the purchase of assets of
Amtel except in the form attached as Exhibit A to the Second Amendment.
A true and complete copy of the Amtel Purchase Agreement (including all
exhibits, schedules and amendments thereto) has been delivered to the
Agent. Borrower shall not amend, modify or supplement any term or
provision of the Amtel Purchase Agreement and shall not waive any
condition set forth therein, without prior written consent of the
Required Lenders."
SECTION 7. AMENDMENT TO SECTION 6.2.7. Section 6.2.7 of the Credit
Agreement is hereby amended by deleting the "and" immediately following clause
(f) thereof, deleting the period immediately following clause (g) thereof and
inserting in lieu thereof "; and" and by inserting the following clause at the
end of such section:
"(h) the Non-Refundable Deposit (as such term is defined in
the Amtel Purchase Agreement)."
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SECTION 8. AMENDMENT TO SECTION 6.2.10. Section 6.2.10(a) of the Credit
Agreement is hereby amended by inserting the following proviso immediately prior
to the semicolon appearing at the end of such section:
", PROVIDED FURTHER HOWEVER, that the Borrower may purchase or
otherwise acquire substantially all of the assets of Amtel pursuant to
and on the terms and conditions set forth in the Amtel Purchase
Agreement;"
SECTION 9. CONTINUING EFFECTIVENESS OF CREDIT AGREEMENT. The Credit
Agreement and each of the other Loan Documents shall remain in full force and
effect in accordance with their respective terms, except as expressly amended or
modified by this Amendment.
SECTION 10. AMENDMENT FEE. The Borrower agrees to pay to the Agent for
the ratable account of each Lender, an amendment fee in an amount equal to
$52,500 (the "Amendment Fee"). The Amendment Fee shall be payable by the
Borrower upon the execution of this Amendment, and the Borrower hereby
irrevocably authorizes the Agent to deduct from the proceeds of a Borrowing of
Revolving A Loans to be made on the date of this Agreement in the amount of
$1,352,500, the sum of $52,500 for the ratable account of each Lender as payment
in full of the Amendment Fee.
SECTION 11. COST AND EXPENSES. The Borrower agrees to pay all
reasonable out-of-pocket expenses of the Agent and each of the Lenders party to
this Amendment for the negotiation, preparation, execution and delivery of this
Amendment (including reasonable fees and expenses of counsel to the Agent and
such Lenders).
SECTION 12. EFFECTIVENESS. This Amendment shall become effective upon
receipt by the Agent of a copy of this Amendment, duly executed by each of the
Borrower, the Lenders and the Agent, and duly acknowledged and consented to by
the Subsidiaries of the Borrower in the form attached to this Amendment.
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SECTION 13. HEADINGS. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provision hereof.
SECTION 15. COUNTERPARTS. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be executed by the Borrower,
the Lenders and the Agent and shall be deemed to be an original and all of which
shall constitute together but one and the same agreement.
SECTION 16. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 17. SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; PROVIDED, HOWEVER, that the Borrower may not assign or
transfer its rights or obligations hereunder or under the Credit Agreement
except in accordance with the terms of the Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
PHONETEL TECHNOLOGIES, INC.
By:_______________________________
Name:
Title:
[CORPORATE SEAL]
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION, in its
capacity as Agent and Lender
By:_______________________________
Steve G. Fleenor
Vice President
CERBERUS PARTNERS, L.P.
By: ___________________________
Seth P. Plattus
Managing Director
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ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledge receipt of a copy of the foregoing
amendment, consent to the terms and provisions set forth therein, and agree that
the Subsidiary Guaranty dated as of March 15, 1996 (the "SUBSIDIARY GUARANTY")
made by each of the undersigned, jointly and severally, in favor of
Internationale Nederlanden (U.S.) Capital Corporation ("ING") and such other
Lenders as are, or may from time to time become, parties to the Credit
Agreement, and ING as Agent for such Lenders, will continue in full force and
effect without diminution or impairment notwithstanding the execution and
delivery of the amendment. The undersigned further acknowledge and agree that,
upon effectiveness of the amendment and from and after the date thereof, each
reference to the Credit Agreement in the Subsidiary Guaranty and each other Loan
Document (as such term is defined in the Credit Agreement) to which any of the
undersigned is a party shall mean and be a reference to the Credit Agreement as
amended by the foregoing amendment.
PUBLIC TELEPHONE CORPORATION
By:_______________________________
Name:
Title:
[CORPORATE SEAL]
WORLD COMMUNICATIONS, INC.
By:_______________________________
Name:
Title:
[CORPORATE SEAL]
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NORTH FLORIDA TELEPHONE CORPORATION
By:_______________________________
Name:
Title:
[CORPORATE SEAL]
PARAMOUNT COMMUNICATIONS SYSTEMS, INC.
By:_______________________________
Name:
Title:
[CORPORATE SEAL]
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EXHIBIT A
[Form of Amtel Purchase Agreement]