EXHIBIT 10.1
FIRST AMENDMENT
TO THE CREDIT AGREEMENT
-----------------------
FIRST AMENDMENT, dated as of May 14, 2002 (this "AMENDMENT"), to the
Credit Agreement, dated as of February 19, 2002 (as amended, restated,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"),
by and among Davel Financing Company, L.L.C., a Delaware limited liability
company (the "Davel Borrower"), PhoneTel Technologies, Inc., an Ohio corporation
("PhoneTel"), Cherokee Communications, Inc., a Texas corporation ("Cherokee",
and together with PhoneTel, collectively the "PhoneTel Borrowers" and
individually a "PhoneTel Borrower"), Davel Communications, Inc., a Delaware
corporation (the "Davel Parent"), each of the Domestic Subsidiaries (as defined
herein) of any Borrower or the Davel Parent, ▇▇▇▇▇▇▇▇▇ L.L.C., a Delaware
limited liability company ("▇▇▇▇▇▇▇▇▇") and ARK CLO 2000-1, Limited, a Cayman
Islands entity ("ARK" and together with ▇▇▇▇▇▇▇▇▇ and each of their respective
successors and permitted assigns, the "Lenders").
PREAMBLE
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The Borrowers and Guarantors have requested an amendment to the
Minimum EBITDA and the Minimum Adjusted EBITDA covenants set forth in Section
6.01(b) of the Credit Agreement. Accordingly, the parties hereto hereby agree as
follows:
1. INCORPORATED DEFINITIONS. Any capitalized term used herein which is
defined in the Credit Agreement and not otherwise defined herein shall have the
meaning assigned to it in the Credit Agreement.
2. AMENDMENTS. (a) Section 6.01(b)(ii) of the Credit Agreement is hereby
amended by (i) deleting the Minimum EBITDA amounts for the months of January
2002 through June 2002 and (ii) inserting the following Minimum EBITDA amounts
for the appropriate months as indicated below:
PERIOD ENDING EBITDA
------------- ------
January, 2002 $ (1,199,964)
February, 2002 (1,702,410)
▇▇▇▇▇, ▇▇▇▇ (2,845,458)
April, 2002 (1,638,191)
May, 2002 (1,297,609)
June, 2002 (983,789)
(b) Section 6.01(b)(iii) of the Credit Agreement is hereby amended by (i)
deleting the Minimum Adjusted EBITDA amounts for the months of January 2002
through June 2002 and (ii) inserting the following Minimum Adjusted EBITDA
amounts for the appropriate months as indicated below:
PERIOD ENDING EBITDA
------------- ------
January, 2002 $ (1,199,964)
February, 2002 (1,702,410)
▇▇▇▇▇, ▇▇▇▇ (2,845,458)
April, 2002 (2,488,191)
May, 2002 (2,147,609)
June, 2002 (2,683,789)
3. CONDITIONS. This Amendment shall become effective only upon
satisfaction in full of the following conditions precedent; PROVIDED HOWEVER,
that the first date upon which all such conditions have been satisfied shall be
retroactively applied as of February 19, 2002 (such date being herein called the
"Amendment Effective Date").
a) The representations and warranties contained in this Amendment
and in Article V of the Credit Agreement and each other Loan Document shall be
correct in all material respects on and as of the Amendment Effective Date as
though made on and as of such date (except where such representations and
warranties relate to an earlier date in which case such representations and
warranties shall be true and correct as of such earlier date).
b) No Default or Event of Default or, shall have occurred and be
continuing on the Amendment Effective Date or result from this Amendment
becoming effective in accordance with its terms.
c) The Lenders shall have received counterparts of this Amendment
which bear the signatures of the Borrowers and the Guarantors.
d) All legal matters incident to this Amendment shall be
satisfactory to the Lenders and their counsel.
4. REPRESENTATIONS AND WARRANTIES. To induce the Lenders to enter into
this Amendment, each Credit Party hereby represents and warrants to the Lenders
as follows:
(a) ORGANIZATION, GOOD STANDING, ETC. Each Credit Party (i) is a
corporation, limited liability company or limited partnership duly organized,
validly existing and in good standing under the laws of the state or
jurisdiction of its organization, (ii) has all requisite power and authority to
conduct its business as now conducted and as presently contemplated, and to
execute and deliver this Amendment, and to consummate the transactions
contemplated hereby and by the Credit Agreement, as amended hereby, and (iii) is
duly qualified to do business and is in good standing in each jurisdiction in
which the character of the properties owned or leased by it or in which the
transaction of its business makes such qualification necessary, except in the
case of clause (iii) where the failure to be so qualified would not reasonably
be expected to have a Material Adverse Effect.
(b) AUTHORIZATION, ETC. The execution, delivery and performance of
this Amendment and each other Loan Document being executed in connection with
this Amendment by each Credit Party that is a party thereto, and the performance
of the Credit Agreement as
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amended hereby (i) have been duly authorized by all necessary action, (ii) do
not and will not contravene such Credit Party's charter or by-laws, its limited
liability company or operating agreement or its certificate of partnership or
partnership agreement, as applicable, or any applicable law or any material
contractual restriction binding on or otherwise affecting it or any of its
properties, (iii) do not and will not result in or require the creation of any
Lien (other than pursuant to any Loan Document) upon or with respect to any of
its properties, and (iv) do not and will not result in any default,
noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of
any material permit, license, authorization or approval applicable to its
operations or any of its properties.
(c) GOVERNMENTAL APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or other
regulatory body is required in connection with the due execution, delivery and
performance by such Credit Party of this Amendment or any other Loan Document to
which it is a party being executed in connection with this Amendment, or for the
performance of the Credit Agreement, as amended hereby.
(d) ENFORCEABILITY OF LOAN DOCUMENTS. Each of this Amendment, the
Credit Agreement, as amended hereby, and each other Loan Document to which such
Credit Party is a party is a legal, valid and binding obligation of such Credit
Party, enforceable against such Credit Party in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws of general
application relating to the enforcement of creditor's rights and by general
equitable principles.
(e) REPRESENTATIONS AND WARRANTIES; NO EVENT OF DEFAULT. The
representations and warranties herein, in Article V of the Credit Agreement and
in each other Loan Document, certificate or other writing delivered on or on
behalf of any Credit Party to the Collateral Agent or any Lender pursuant to the
Credit Agreement or any other Loan Document on or prior to the Amendment
Effective Date are true and correct on and as of the Amendment Effective Date as
though made on and as of such date (except where such representations and
warranties relate to an earlier date in which case such representations and
warranties shall be true and correct as of such earlier date), and no Default or
Event of Default has occurred and is continuing as of the Amendment Effective
Date or would result from this Amendment becoming effective in accordance with
its terms.
5. COSTS AND EXPENSES. The Credit Parties agree to pay upon demand all
reasonable expenses, including reasonable attorneys' and legal assistants' fees,
all recording fees and charges, or other fees or charges incurred by the Lenders
in connection with the preparation, negotiation and execution of this Amendment
and all documents related thereto and any document required to be furnished
herewith.
6. CONTINUED EFFECTIVENESS OF THE CREDIT AGREEMENT AND LOAN DOCUMENTS.
Each Credit Party hereby (a) acknowledges and consents to this Amendment, (b)
confirms and agrees that each Loan Document to which it is a party is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects except that on and after the date hereof all references in any such
Loan Document to "the Credit Agreement", "thereto", "thereof", "thereunder" or
words of like import referring to the Credit Agreement shall mean the Credit
Agreement as amended by this Amendment, and (c) confirms and agrees that to the
extent that
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any such Loan Document purports to assign or pledge to the Collateral Agent, or
to grant a security interest in or lien on, any collateral as security for the
obligations of the Borrowers from time to time existing in respect of the Credit
Agreement, such pledge, assignment or grant of the security interest or lien is
hereby ratified and confirmed in all respects.
7. MISCELLANEOUS.
(a) This Amendment may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart by telefacsimile
shall be equally effective as delivery of an original executed counterpart of
this Amendment. Any party delivering an executed counterpart of this Amendment
also shall deliver an original executed counterpart of this Amendment, but the
failure to deliver an original executed counterpart shall not affect the
validity, enforceability and binding effect of this Amendment.
(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PREPARED IN THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
(d) Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered as of the date set forth on the first page hereof.
BORROWERS: DAVEL FINANCING COMPANY, L.L.C.,
--------- a Delaware limited liability company
By: DAVEL COMMUNICATIONS, INC.,
its sole managing member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
PHONETEL TECHNOLOGIES, INC.,
an Ohio corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
CHEROKEE COMMUNICATIONS, INC.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
DAVEL PARENT GUARANTOR: DAVEL COMMUNICATIONS, INC.,
---------------------- a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
SUBSIDIARY GUARANTORS: DAVEL COMMUNICATIONS GROUP, INC.,
--------------------- an Illinois corporation
ADTEC COMMUNICATIONS, INC.,
a Florida corporation
CENTRAL PAYPHONE SERVICES, INC.,
a Georgia corporation
COMMUNICATIONS CENTRAL INC.,
a Georgia corporation
COMMUNICATIONS CENTRAL OF GEORGIA, INC.,
a Georgia corporation
DAVEL COMMUNICATIONS GROUP, INC.,
an Illinois corporation
DAVEL MEDIA, INC.,
a Delaware corporation
DAVEL MEXICO, LTD.,
an Illinois corporation
DAVELTEL, INC.,
An Illinois corporation
DF MERGER CORP.,
a Delaware corporation
INTERSTATE COMMUNICATIONS, INC.,
a Georgia corporation
INVISION TELECOM, INC.,
a Georgia corporation
PEOPLES ACQUISITION CORPORATION,
a Pennsylvania corporation
PEOPLES COLLECTORS, INC.,
a Delaware corporation
PEOPLES TELEPHONE COMPANY, INC.,
a New York corporation
PEOPLES TELEPHONE COMPANY, INC.,
a New Hampshire corporation
PT MERGER CORP.,
an Ohio corporation
PTC CELLULAR, INC.,
a Delaware corporation
PTC SECURITY SYSTEMS, INC.,
a Florida corporation
SILVERADO COMMUNICATIONS CORP.,
a Colorado corporation
TELALEASING ENTERPRISES, INC.,
an Illinois corporation
T.R.C.A., INC.
an Illinois corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
By ______________________________
Name:
Title:
LENDERS: ▇▇▇▇▇▇▇▇▇ L.L.C.
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By: /s/ ▇▇▇▇▇ ▇. Genda
Name: ▇▇▇▇▇ ▇. Genda
Title: Vice President
ARK CLO 2000-1, LIMITED
BY: PATRIARCH PARTNERS, LLC
ITS COLLATERAL MANAGER
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
ARK INVESTMENT PARTNERS II, L.P.
BY: PATRIARCH PARTNERS III, LLC
ITS INVESTMENT ADVISOR
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title Authorized Signatory
