EXHIBIT 10.1
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is entered
into as of June 22, 2000 among DAVEL FINANCING COMPANY, L.L.C., a Delaware
limited liability company (the "Borrower"); DAVEL COMMUNICATIONS, INC., a
Delaware corporation (the "Parent"); the Parent and the Domestic Subsidiaries of
the Borrower, as Guarantors; the Lenders party to the "Credit Agreement"
(referred to and defined below); and BANK OF AMERICA, N.A. (formerly known as
NationsBank, N.A.), as Administrative Agent for the Lenders (the "Administrative
Agent"). Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Credit Agreement.
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders, the Administrative
Agent, BancBoston Robertson Stephens, Inc., as Syndication Agent and The Chase
Manhattan Bank, as Documentation Agent, entered into that certain Credit
Agreement, dated as of December 23, 1998 (as amended and modified by that
certain First Amendment to Credit Agreement and Consent and Waiver dated as of
April 8, 1999 among the Borrower, the Parent, the Domestic Subsidiaries of the
Borrower, the Lenders and the Administrative Agent, that certain Second
Amendment to Credit Agreement dated as of March 9, 2000 among such parties, and
as may be further amended or modified from time to time, the "Credit
Agreement");
WHEREAS, the Borrower has informed the Lenders that it anticipates being
unable to make certain principal and interest payments due under the Credit
Agreement on and after June 30, 2000, and possibly unable to comply with certain
of the financial covenants set forth in the Credit Agreement with respect to the
period ending as of June 30, 2000;
WHEREAS, the Borrower has requested that the Lenders amend certain terms
and provisions of the Credit Agreement to effect a deferral of such principal
and certain of such interest payments to September 30, 2000 and to eliminate
each of the financial covenants to the extent (and only to the extent) tested as
of, or with respect to the period ending, June 30, 2000;
WHEREAS, the Lenders have agreed to such requests, subject to the terms
and conditions set forth below.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. AMENDMENTS. Effective as of the date hereof, upon satisfaction of each
of the conditions set forth in PARAGRAPH 2 hereof, the Credit Agreement is
hereby amended as follows (section references used below refer to sections of
the Credit Agreement):
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(a) TERM LOAN A AMORTIZATION. The schedule of dates and amounts
set forth in SECTION 2.3(C) is amended to delete the references therein
to June 30, 2000 and September 30, 2000 and the amounts set forth
opposite such dates, and to replace such dates and amounts with the
following:
June 30, 2000 $0
September 30, 2000 $10,000,000
(b) TERM LOAN B AMORTIZATION. The schedule of dates and amounts
set forth in SECTION 2.4(C) is amended to delete the references therein
to June 30, 2000 and September 30, 2000 and the amounts set forth
opposite such dates, and to replace such dates and amounts with the
following:
June 30, 2000 $0
September 30, 2000 $475,000
(c) INTEREST PAYMENTS. The first sentence of SECTION 3.1(C) is
deleted in its entirety and replaced with the following sentence:
Interest on Loans shall be due and payable in arrears on each
Interest Payment Date; PROVIDED, HOWEVER, THAT (i) all interest
which would otherwise be due and payable on the Interest Payment
Date occurring on June 30, 2000 shall continue to accrue on the
applicable Loans from and after such date and shall become due
and payable in arrears on July 10, 2000, (ii) all interest
otherwise due and payable on each Interest Payment Date occurring
after June 30, 2000 and before September 30, 2000 shall continue
to accrue on the applicable Loans from and after such Interest
Payment Date and shall become due and payable in arrears on
September 30, 2000 subject to the other provisions of this
Agreement regarding payments stated as to be made on days which
are not Business Days, and (iii) notwithstanding the provisions
of the immediately foregoing CLAUSES (I) and (II) of this
subsection, in no event is any interest being forgiven with
respect to any period of accrual hereunder.
(d) FINANCIAL COVENANTS. SECTION 7.2 is amended to delete, from
each of the schedules of dates (or periods) and ratios set forth in
SUBSECTIONS (A), (B) and (C) of such section, each reference therein to
June 30, 2000 and each corresponding ratio set forth opposite such date.
2. CONDITIONS PRECEDENT. The effectiveness of this Amendment is subject to
receipt by the Administrative Agent of each of the following:
(a) counterparts to this Amendment duly executed by each of the
Credit Parties and each of the Lenders;
(b) certified copies of resolutions or similar authorizations of
each Credit Party approving and adopting this Amendment, the
transactions contemplated herein and authorizing such Credit Party's
execution and delivery hereof; and
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(c) an opinion or opinions from counsel to the Credit Parties with
respect to this Amendment, in form and substance satisfactory to the
Administrative Agent, addressed to the Administrative Agent on behalf
of the Lenders and dated as of the date hereof.
3. COMPLIANCE CERTIFICATE. Notwithstanding the amendment to SECTION 7.2 of
the Credit Agreement set forth above in PARAGRAPH 1(D) of this Amendment, the
Borrower agrees to prepare and deliver its compliance certificate pursuant to
SECTION 7.1(C) of the Credit Agreement with respect to its financial performance
for the fiscal quarter ending June 30, 2000 as if such amendment to SECTION 7.2
had not occurred, including, without limitation, providing its calculation of
each of the financial covenants which otherwise would be applicable for such
period ended, it being understood and agreed, however, that the Borrower's
failure to comply with such hypothetical financial covenants shall not
constitute a violation of the Credit Agreement or otherwise constitute an Event
of Default or Default.
4. GOOD STANDING CERTIFICATES. Within 30 days after the date hereof, the
Borrower shall deliver to the Administrative Agent copies of certificates of
good standing, existence or their equivalent with respect to each Credit Party,
certified as of a recent date by the appropriate Governmental Authorities of the
state or other jurisdiction of such Credit Party's formation.
5. RATIFICATION OF CREDIT AGREEMENT. The term "Credit Agreement" as used
in each of the Credit Documents shall hereafter mean the Credit Agreement as
amended and modified by this Amendment. Except as herein specifically agreed,
the Credit Agreement, as amended by this Amendment, is hereby ratified and
confirmed and shall remain in full force and effect according to its terms,
including, without limitation, the liens granted pursuant to the Collateral
Documents.
6. AUTHORITY/ENFORCEABILITY. Each of the Credit Parties, the
Administrative Agent and the Lenders represents and warrants as follows:
(a) It has taken all necessary action to authorize the execution,
delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by such
Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar
laws affecting creditors' rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or governmental authority
or third party is required in connection with the execution, delivery or
performance by such Person of this Amendment (other than that which may
have been previously obtained).
7. NO DEFAULT. The Credit Parties represent and warrant to the Lenders
that (a) the representations and warranties of the Credit Parties set forth in
SECTION 6 of the Credit Agreement (as amended by this Amendment) are true and
correct in all material respects as of the date hereof, (b) no event has
occurred and is continuing which constitutes a Default or an
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Event of Default and (c) they have no claims, counterclaims, offsets, credits
(other than any credit for overpayment of interest or fees under the Credit
Documents of which the Credit Parties have no knowledge as of the date hereof
(each an "Overpayment Credit")) or defenses to their obligations under the
Credit Documents or to the extent they have any (other than any Overpayment
Credit) they are hereby released in consideration of the Lenders entering into
this Amendment.
8. COUNTERPARTS/TELECOPY. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. Delivery of
executed counterparts of this Amendment by telecopy shall be effective as an
original and shall constitute a representation that an original shall be
delivered.
9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered and this Amendment shall be
effective as of the date first above written.
BORROWER: DAVEL FINANCING COMPANY, L.L.C.,
a Delaware limited liability company
By: DAVEL COMMUNICATIONS, INC.,
its sole managing member
By: _________________________________
Name: ___________________________
Title: __________________________
PARENT GUARANTOR: DAVEL COMMUNICATIONS, INC.,
a Delaware corporation
By: _________________________________
Name: ___________________________
Title: __________________________
SUBSIDIARY GUARANTORS: DAVEL COMMUNICATIONS GROUP, INC.,
an Illinois corporation
PEOPLES TELEPHONE COMPANY, INC.,
a New York corporation
PEOPLES TELEPHONE COMPANY, INC.,
a New Hampshire corporation
PEOPLES COLLECTORS, INC.,
a Delaware corporation
PTC CELLULAR, INC.,
a Delaware corporation
PTC SECURITY SYSTEMS, INC.,
a Florida corporation
TELELINK TELEPHONE SYSTEMS, INC.,
a Georgia corporation
SILVERADO COMMUNICATIONS CORP.,
a Colorado corporation
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Third Amendment to Credit Agreement
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PEOPLES ACQUISITION CORP.,
a Pennsylvania corporation
TELALEASING ENTERPRISES, INC.,
an Illinois corporation
ADTEC COMMUNICATIONS, INC.,
a Florida corporation
INTERSTATE COMMUNICATIONS, INC.,
a Georgia corporation
T.R.C.A., INC.,
an Illinois corporation
DAVELTEL, INC.,
an Illinois corporation
DAVEL MEXICO, LTD.,
an Illinois corporation
COMMUNICATIONS CENTRAL INC.,
a Georgia corporation
CENTRAL PAYPHONE SERVICES, INC.,
a Georgia corporation
COMMUNICATIONS CENTRAL
OF GEORGIA, INC.,
a Georgia corporation
INVISION TELECOM, INC.,
a Georgia corporation
By: _________________________________
Name: ___________________________
Title: __________________________
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Third Amendment to Credit Agreement
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AGENT: BANK OF AMERICA, N.A. (FORMERLY,
NATIONSBANK, N.A.),
in its capacities as the Administrative
Agent and Collateral Agent
By: _________________________________
Name: ___________________________
Title: __________________________
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LENDERS: BANK OF AMERICA, N.A. (FORMERLY,
NATIONSBANK, N.A.),
individually in its capacity as a Lender,
and in its capacity as the Issuing Lender
By: _________________________________
Name: ___________________________
Title: __________________________
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THE CHASE MANHATTAN BANK
By: _________________________________
Name: ___________________________
Title: __________________________
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THE BANK OF NEW YORK
By: _________________________________
Name: ___________________________
Title: __________________________
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FLEET BANK, N.A.
By: _________________________________
Name: ___________________________
Title: __________________________
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LASALLE BANK NATIONAL ASSOCIATION
(AS SUCCESSOR TO LASALLE NATIONAL BANK)
By: _________________________________
Name: ___________________________
Title: __________________________
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U.S. BANK NATIONAL ASSOCIATION
By: _________________________________
Name: ___________________________
Title: __________________________
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CREDIT AGRICOLE INDOSUEZ
By: _________________________________
Name: ___________________________
Title: __________________________
By: _________________________________
Name: ___________________________
Title: __________________________
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BANK ONE N.A. (AS SUCCESSOR TO THE FIRST
NATIONAL BANK OF CHICAGO)
By: _________________________________
Name: ___________________________
Title: __________________________
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PNC BANK, NATIONAL ASSOCIATION
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
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ALLSTATE LIFE INSURANCE COMPANY
By: _________________________________
Name: ___________________________
Title: __________________________
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
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HELLER FINANCIAL, INC.
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
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BNP PARIBAS
By: _________________________________
Name: ___________________________
Title: __________________________
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to
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EATON VANCE SENIOR INCOME TRUST
By: EATON VANCE MANAGEMENT,
as Investment Advisor
By: _________________________________
Name: ___________________________
Title: ____________________________
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SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT AND
RESEARCH, as Investment Advisor
By: _________________________________
Name: ___________________________
Title: ____________________________
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OXFORD STRATEGIC INCOME FUND
By: EATON VANCE MANAGEMENT,
as Investment Advisor
By: _________________________________
Name: ___________________________
Title: __________________________
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VAN KAMPEN SENIOR FLOATING
RATE FUND
By: _________________________________
Name: ___________________________
Title: __________________________
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KZH CYPRESSTREE-1 LLC
By: _________________________________
Name: ___________________________
Title: __________________________
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CYPRESSTREE INVESTMENT FUND, LLC
By: CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.,
its Managing Member
By: _________________________________
Name: ___________________________
Title: __________________________
CYPRESSTREE INSTITUTIONAL
FUND, LLC
By: CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.,
its Managing Member
By: _________________________________
Name: ___________________________
Title: __________________________
NORTH AMERICAN SENIOR FLOATING
RATE FUND
By: CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.,
as Portfolio Manager
By: _________________________________
Name: ___________________________
Title: __________________________
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MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST
By: _________________________________
Name: ___________________________
Title: __________________________
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DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: _________________________________
Name: ___________________________
Title: __________________________
By: _________________________________
Name: ___________________________
Title: __________________________
