Exhibit 4.4
THIRD AMENDMENT TO THE FOURTH AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO THE FOURTH AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment")is made and entered into as of this 26th day of
March, 1997, by and among PEOPLES TELEPHONE COMPANY, INC., a New York
corporation ("Borrower"), each of the Lenders signatory hereto (hereinafter
referred to individually as a "Lender" and collectively as the "Lenders"), and
CREDITANSTALT- BANKVEREIN, an Austrian banking corporation, as agent for the
Lenders (in such capacity, together with its successors and assigns in such
capacity, hereinafter referred to as the "Agent");
W I T N E S S E T H:
WHEREAS, on March 12, 1990, Borrower entered into a certain Loan and
Security Agreement, dated as of March 12, 1990, as amended (as so amended, the
"Original Loan Agreement"), among Borrower, the banks party thereto and the
Agent, pursuant to which such banks made available to Borrower a revolving
credit facility; and
WHEREAS, the Original Loan Agreement was superseded by that certain Amended
and Restated Loan and Security Agreement, dated as of May 4, 1992 (the "First
Restated Agreement") among the Borrower, the banks party thereto and the Agent;
and
WHEREAS, the First Restated Agreement was superseded by that certain Second
Amended and Restated Loan and Security Agreement, dated as of March 29, 1993
(the "Second Restated Agreement") among Borrower and PTC Cellular, Inc., a
Delaware corporation, as borrowers, the banks party thereto and the Agent; and
WHEREAS, the Second Restated Agreement was superseded by that certain Third
Amended and Restated Loan and Security Agreement, dated as of February 17, 1994
(the "Third Restated Agreement") among the Borrower, the lenders party thereto
and the Agent; and
WHEREAS, the Third Restated Agreement was superseded by that certain Fourth
Amended and Restated Loan and Security Agreement, dated as of July 19, 1995 (the
"Fourth Restated Agreement") among the Borrower, the lenders party thereto (the
"Lenders") and the Agent; and
WHEREAS, the Fourth Restated Agreement was amended on November 29, 1995
pursuant to that certain Waiver and First Amendment to Fourth Amended and
Restated Loan and Security Agreement and on April 4, 1996 pursuant to that
certain Second Amendment to Fourth Amended and Restated Loan and Security
Agreement;
WHEREAS, Borrower has requested that the Lenders and the Agent increase the
Commitment (as defined in the Fourth Restated Agreement) from Ten Million
Dollars ($10,000,000) to Twenty Million Dollars ($20,000,000);
WHEREAS, the Lenders and the Agent are willing to increase the Commitment
as requested on the condition that the Fourth Restated Agreement is amended as
set forth herein;
NOW, THEREFORE, for and in consideration of the foregoing premises, the
mutual promises, covenants and agreements contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. All capitalized terms used herein and not expressly
defined herein shall have the same respective meanings given to such terms
in the Fourth Restated Agreement.
2. Definitions.
2.1. Section 1.1 of the Fourth Restated Agreement is hereby
amended by adding the following definition of "Applicable Margin" to
read as follows:
"Applicable Margin" shall mean (a) with respect to Eurodollar
Loans, three and one half percent (31/2%) per annum and (b) with
respect to Base Rate Loans, one and one-half percent (11/2%) per
annum; provided, however, that if on the last day of any fiscal
quarter Borrower's Leverage Ratio shall fall within any of the
ranges set forth below, then, subject to delivery by a senior
financial officer of Borrower of financial statements for that
quarter, together with a Compliance Certificate of the chief
financial officer of Borrower certifying as to Borrower's
Leverage Ratio, in each case as required pursuant to Section
6.2(a) hereof, the Applicable Margin payable on the Loans shall
be adjusted, from the date of Agent's receipt of such financial
statements and Compliance Certificate until the date on which the
next following quarterly financial statements are required to be
delivered to the Agent, to the rate, calculated daily on the
basis of a 360-day year and actual days elapsed, for the
applicable type of Loan set forth opposite such range in the
schedule below:
Leverage Ratio Base Rate Loans Eurodollar Rate Loans
----------------------------- ---------- ---------------------
Greater than 3.00:1.00 1.50% 3.50%
Less than or equal to 3.00:1.00 1.00% 3.00%
Less than or equal to 2.50:1.00 .50% 2.50%
If Borrower does not qualify for an adjustment in interest rates
as set forth above for any given fiscal quarter of Borrower or if
no Compliance Certificate and quarterly financial statements are
delivered by the required date, the Applicable Margin shall be
those set forth in clauses (a) and (b) above.
2.2. Section 1.1 of the Fourth Restated Agreement is hereby
amended by deleting the definition of "Base Lending Rate" in its
entirety and substituting in lieu thereof a new definition of "Base
Lending Rate" to read as follows:
"Base Lending Rate" shall mean an interest rate per annum,
fluctuating daily, equal to the higher of (a) a rate announced by
Creditanstalt from time to time at its principal office in
Greenwich, Connecticut, as its prime date for domestic (United
States) commercial loans in effect on such date; and (b) the
Federal Funds Rate in effect on such date plus one-half percent
(1/2%). The Base Lending Rate is not necessarily intended to be
the lowest rate of interest charge by Creditanstalt in connection
with extensions of credit. Each change in the Base Lending Rate
shall result in the corresponding change in the interest rates
hereunder with respect to a Base Rate Loan and such change shall
be effective on the effective date of such change in the Base
Lending Rate.
2.3. Section 1.1 of the Fourth Restated Agreement is hereby
further amended by deleting the definition of "Business Day" in its
entirety and substituting in lieu thereof a new definition of
"Business Day" to read as follows:
"Business Day" shall mean a day on which banks are not required
or authorized to close in New York, New York or Greenwich,
Connecticut and, if such day relates to a borrowing of, a payment
or prepayment of principal or interest on a Continuation or
Conversion of or into, or an Interest Period for a Eurodollar
Loan or a notice by Borrower with respect to any such borrowing,
payment, prepayment, Continuation, Conversion or Interest Period,
which is also a day on which dealings by and between banks in
U.S. dollar deposits are carried out in the interbank Eurodollar
market.
2.4. Section 1.1 of the Fourth Restated Agreement is hereby
further amended by deleting the definition of "Commitment" in its
entirety and substituting in lieu thereof a new definition of
"Commitment" to read as follows:
"Commitment" shall mean the aggregate obligation of the Lenders
to make Loans to Borrower, subject to the terms and conditions
hereof, up to an aggregate principal amount not to exceed at any
one time outstanding as to all the Lenders equal to Twenty
Million Dollars ($20,000,000), subject to reduction as set forth
in Section 2.10 hereof.
2.5. Section 1.1 of the Fourth Restated Agreement is hereby
further amended by deleting the definition of "Creditanstalt" in its
entirety and substituting in lieu thereof a new definition of
"Creditanstalt" to read as follows:
"Creditanstalt" shall mean Creditanstalt-Bankverin, an Austrian
Banking
corporation, having offices at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and its successors and assigns.
2.6. Section 1.1 of the Fourth Restated Agreement is hereby
amended by deleting the defined term "Leverage Ratio" in its entirety
and by substituting therefor a new definition of "Leverage Ratio" to
read as follows:
"Leverage Ratio" shall mean, as of the last day of any fiscal
quarter of Borrower, the ratio of (a) the aggregate principal
amount of Borrower's Indebtedness outstanding on such date, to
(b) an amount equal to (i) in the case of the fiscal quarter
ending March 31, 1997, the product of the Borrower's Operating
Cash Flow for the fiscal quarter ending on such date multiplied
by four (4); (ii) in the case of the fiscal quarter ending June
30, 1997, the product of the Borrower's Operating Cash Flow for
the two fiscal quarter period ending on such date multiplied by
two (2); (iii) in the case of the fiscal quarter ending September
30, 1997, the product of the Borrower's Operating Cash Flow for
the three fiscal quarter period ending on such date multiplied by
four-thirds (4/3); and (iv) for any fiscal quarter thereafter,
the Borrower's Operating Cash Flow for the four fiscal quarter
period then ending; in each case computed on a consolidated basis
for the Borrower and its Subsidiaries in accordance with GAAP.
2.7. Section 1.1 of the Fourth Restated Agreement is hereby
further amended by deleting the definition of "Maturity Date" in its
entirety and substituting in lieu thereof a new definition of
"Maturity Date" to read as follows:
"Maturity Date" shall mean March 26, 2000.
2.8. Section 1.1 of the Fourth Restated Agreement is hereby
amended by adding the following phrase to the last sentence of the
defined term "Permitted Liens" to read as follows: (f) liens permitted
under Section 7.2 (e) hereof.
2.9. Section 1.1 of the Fourth Restated Agreement is hereby
further amended by deleting the definition of "Quoted Rate" in its
entirety and substituting in lieu thereof a new definition of "Quoted
Rate" to read as follows:
"Quoted Rate" shall mean, when used with respect to an Interest
Period for a Eurodollar Loan, the quotient of (i) the offered
rate quoted by Creditanstalt in the interbank Eurodollar market
in Greenwich, Connecticut or London, England on or about 11:00
a.m. (prevailing Eastern or London time, as the case may be) two
Business Days prior to such Interest Period for U.S. dollar
deposits in an aggregate
amount comparable to the principal amount of the Eurodollar Loan
to which the Quoted Rate is to be applicable and for a period
comparable to such Interest Period, divided by (ii) one minus the
Reserve Percentage. For purposes of this definition, (a) "Reserve
Percentage" shall mean with respect to any Interest Period, the
percentage which is in effect on the first day of such Interest
Period under Regulation D as the maximum reserve requirement from
member banks of the Federal Reserve System in Greenwich,
Connecticut with deposits comparable in amount to those of
Creditanstalt against Eurocurrency Liabilities (b) "Eurocurrency
Liabilities" has the meaning assigned to that term in Regulation
D, as in effect from time to time. The Quoted Rate for the
applicable period shall be adjusted automatically on as of the
effective date of any change in the applicable Reserved
Percentage.
3. Borrowing Procedures. The Fourth Restated Agreement is hereby further
amended by deleting Section 2.2 thereof in its entirety and by substituting
therefor a new Section 2.2 to read as follows:
2.2 Borrowing Procedures.
(a) Borrower shall give Agent a Notice of Borrowing in
connection with each request for a Loan hereunder in accordance
with Section 2.12 hereof. The Agent shall promptly notify each
Lender of any Notice of Borrowing received hereunder. Not later
than 11:00 a.m (prevailing Eastern time), on the date specified
for each borrowing hereunder, each Lender shall make available to
the Agent the amount of the Loan to be made by such Lender in
accordance with such Lender's Commitment Percentage, in
immediately available funds at an account with Creditanstalt
designated by the Agent. The Agent shall, subject to the terms
and conditions of this Agreement, not later than 1:00 p.m.
(prevailing Eastern time) on the Business Day specified for such
borrowing, make such amount available to Borrower at the Agent's
office in Greenwich, Connecticut.
(b) Unless the Agent shall have been notified by any Lender
at least one Business Day prior to the date on which any
Eurodollar Loan is to be made to Borrower and not later than
11:00 a.m. (prevailing Eastern time) on the date any Base Rate
Loan is to be made, that such Lender does not intend to make
available to the Agent such Lender's Commitment Percentage of
such Loan, the Agent may assume that such Lender has made such
amount available to the Agent on the date of such Loan and the
Agent may, in reliance upon such assumption, make available to
Borrower a corresponding amount. If such corresponding amount is
not in fact made available to Agent by such Lender, the Agent
shall be entitled to recover such corresponding amount on demand
from such Lender, which demand shall be made in a reasonably
prompt manner. If such Lender does not pay such a corresponding
amount forthwith upon the Agent's demand therefor, the Agent
shall promptly
notify Borrower and Borrower shall pay such corresponding amount
to the Agent. The Agent shall also be entitled to recover from
such Lender interest on such corresponding amount in respect of
each day from the date such corresponding amount was made
available by the Agent to Borrower to the date such corresponding
amount as recovered by the Agent at a rate per annum equal to the
Federal Funds Rate, for the first two Business Days, and then
thereafter at the rate per annum then in effect with respect to
Base Rate Loans. Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its Commitment Percentage
of the Commitment hereunder or to prejudice any rights which the
Agent or Borrower may have against any Lender as a result of any
Default by such Lender hereunder.
4. Payments. The Fourth Restated Agreement is hereby further amended by
deleting Subsection 2.8(a) thereof in its entirety and by substituting therefor
a new Subsection 2.8(a) to read as follows:
(a) Each payment by the Borrower pursuant to this Agreement
or the Notes shall be made prior to 1:00 p.m. (prevailing Eastern
time) on the date due and shall be made without set-off or
counterclaim to the Agent at its principal U.S. office located at
Two Greenwich Plaza, 4th Floor, Greenwich, Connecticut or at such
other place or places as Agent may designate from time to time in
writing to Borrower. Each such payment shall be in lawful
currency of the United States of America and in immediately
available funds. The Agent shall promptly remit to each Lender
such Lender's share of any payment received by the Agent from
Borrower.
5. Certain Notices. The Fourth Restated Agreement is hereby further amended
by deleting Section 2.12 thereof in its entirety and by substituting therefor a
new Section 2.12 to read as follows:
2.12 Certain Notices. All notices given by Borrower to the Agent
of terminations or reductions of the Commitment, or of borrowings, or
prepayments of Loans hereunder shall either be oral, with prompt
written confirmation by telecopy, or in writing, with such written
confirmation or writing, in the case of a borrowing, to be
substantially in the form of Exhibit B attached hereto (a "Notice of
Borrowing"); shall be irrevocable; shall be effective only if received
by Agent prior to 10:00 a.m. (Eastern time) on a Business Day which
is: (a) at least fifteen (15) days prior to such termination or
reduction of the Commitment; (b) not later than the date such Loan is
to be made as, Converted to or Continued as a Base Rate Loan; (c) at
least three (3) Business Days prior to the date such Loan is to be
made as, Converted to or Continued as a Eurodollar Loan; (d) at least
five (5) days prior to any such prepayment, in the case of a
prepayment of a Base Rate
Loan; or (e) not later than the date of any such prepayment, in the
case of a prepayment of a Base Rate Loan. Each such notice to reduce
the Commitment or to prepay the Loans shall specify the amount of the
Commitment to be reduced or of the Loans to be prepaid and the date of
such reduction or prepayment. Each such notice of borrowing,
Conversion or Continuation shall specify: (i) the amount of such
borrowing, Conversion or Continuation (which shall be an integral
multiple of $100,000 and, if a Eurodollar Loan, shall be in a minimum
principal amount of $1,000,000); (ii) that the amount of the Loan to
be made, Converted or Continued when aggregated with all other Loans
to be outstanding following the funding of such Loan, does not exceed
the Borrowing Base; (iii) whether such Loan will be made, Converted or
Continued as a Eurodollar Loan or as a Base Rate Loan; (iv) the date
such Loan is to be made, Converted or Continued (which shall be a
Business Day and, if such Loan is to Convert or Continue a Eurodollar
Loan then outstanding, shall not be prior to the then current Interest
Period for such outstanding Loan); and (v) if such Loan is a
Eurodollar Loan, the duration of the Interest Period with respect
thereto. If Borrower fails to specify the duration of the Interest
Period for any Eurodollar Loan, Borrower shall instead be deemed to
have requested that such Loan be made as, Converted to or Continued as
a Base Rate Loan. Each request for a borrowing, Conversion or
Continuation of a Loan or for any other financial accommodation by
Borrower pursuant to this Agreement or the other Loan Documents shall
constitute (x) an automatic warranty and representation by Borrower to
each Lender that there does not then exist a Default or Event of
Default or any event or condition which, with the making of such Loan,
would constitute a Default or Event of Default and (y) an affirmation
that as of the date of such request all of the representations and
warranties of Borrower contained in this Agreement and the other Loan
Documents are true and correct in all material respects, both before
and after giving effect to the application of the proceeds of the Loan
except for such changes in such representations and warranties which
do not constitute a Default or Event of Default hereunder, which do
not, individually or in the aggregate, have a Material Adverse Effect
and which have, to the extent required, been disclosed to the Agent
and the Lenders pursuant to Section 6.2 hereof or otherwise. If on the
last day of the Interest Period of any Eurodollar Loan hereunder,
Agent has not received a timely notice hereunder to Convert, Continue
or prepay such Loan, Borrower shall be deemed to have submitted a
notice to Convert such Loan to a Base Rate Loan.
6. Interest. The Fourth Restated Agreement is hereby further amended by
deleting Sections 3.1, 3.2 and 3.3 thereof in their entirety and by substituting
therefor new Sections 3.1, 3.2 and 3.3 to read as follows:
3.1 Interest.
(a) Subject to modification pursuant to Section 10.1 hereof, the
average daily outstanding principal amount of the Loans and all other
sums payable by Borrower hereunder shall bear interest from the date
thereof until paid in full at the following rates:
(i) the outstanding principal amount of each Eurodollar Loan
shall bear interest at a fixed rate of interest per annum equal
to the Quoted Rate for the then- current Interest Period for such
Loan plus the Applicable Margin, calculated on the basis of a
360-day year and actual days elapsed; and
(ii) the outstanding principal amount of each Base Rate Loan
and all other sums payable by Borrower hereunder shall bear
interest at a fluctuating rate per annum equal to the Base
Lending Rate plus the Applicable Margin, calculated daily on the
basis of a 360-day year and actual days elapsed.
(b) Accrued interest shall be payable (i) in the case of Base
Rate Loans, monthly on the first day of each month hereafter for the
previous month, commencing with the first such day following the
Effective Date; (ii) in the case of a Eurodollar Loan, on the last day
of each Interest Period, provided, however, that if any Interest
Period in respect of a Eurodollar Loan is longer than three (3)
months, such interest prior to maturity shall be paid on the last
Business Day of each three (3) month interval within such Interest
Period as well as on the last day of such Interest Period; (iii) in
the case of any Loan, upon the payment or prepayment thereof; (iv) in
the case of any other sum payable hereunder as set forth elsewhere in
this Agreement or, if not so set forth, on demand; and (v) in the case
of interest payable at the Default Rate, on demand.
3.2 Limitations on Interest Periods. Borrower may not select any
Interest Period which extends beyond the Maturity Date. Borrower shall not
have more than three (3) different Interest Periods for Eurodollar Loans
outstanding at any given time during the term of this Agreement; provided,
however, that so long as no Base Rate Loans are outstanding, Borrower may
have up to four (4) different Interest Periods for Eurodollar Loans
outstanding.
3.3 Conversions and Continuations. So long as there then exists no
Default or Event of Default, Borrower shall have the right, from time to
time, to Convert Loans of one type to Loans of the other type and to
Continue Loans of one type as Loans of the same type; provided, however,
that Eurodollar Loans may not be Continued or Converted prior to the end of
the Interest Period applicable thereto.
7. Capiatlization. The Fourth Restated Agreement is hereby further amended
by deleting Section 5.28 thereof in its entirety and by substituting therefor a
new Section 5.28 to read as follows:
5.28 Capitalization. Borrower has authorized capital stock consisting of
75,000,000 shares of Common Stock, par value $.01 per share, of which as of
March 21, 1997, 16,194,684 shares were issued and outstanding, and 5,000,000
shares of Preferred Stock, $.01 par value per share, of which (a) 600,000 shares
are designated as Series B Preferred Stock, of which as of March 21, 1997, none
were issued and outstanding, and (b) 160,000 shares are designated as Series C
Cumulative Convertible Preferred Stock of which as of March 21, 1997, 150,000
shares were issued and outstanding.
8. Reporting Requirements. The Fourth Restated Agreement is hereby further
amended by deleting Subsection 6.2(a)(v) thereof in its entirety and by
substituting therefor a new Subsection 6.2(a)(v) to read as follows:
(v) Together with the annual or interim financial statements
referred to in clauses (i) and (ii) above, a compliance certificate of
the chief executive officer or the chief financial officer of
Borrower, in substantially the forms of Exhibit C hereto (the
"Compliance Certificate"), certifying that, to the best of his or her
knowledge, no Default or Event of Default has occurred and is
continuing or, if a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof and the action which
is proposed to be taken with respect thereto, and that the
calculations for determining the Applicable Margin and compliance with
the financial covenants set forth in Article 8 hereof are true and
accurate;
9. Insurance. The Fourth Restated Agreement is hereby further amended by
deleting Subsection 6.9(c) thereof in its entirety and by substituting therefor
a new Subsection 6.9(c) to read as follows:
(c) Deliver certificates of insurance for such policy or policies
to Agent, containing endorsements, in form satisfactory to the
Majority Lenders , providing that the insurance shall not be
cancelable, except upon thirty (30) days' prior written notice to
Agent. In the event of any termination or notice of non-payment by any
insurer with respect to any policy or any lapse in the coverage
thereunder, Borrower shall cause such insurer to give prompt written
notice to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President, Creditanstalt-
Bankverein, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ of
the occurrence of such termination, nonpayment or lapse.
10. Indebtedness. The Fourth Restated Agreement is hereby further amended
by deleting Section 7.2 thereof in its entirety and by substituting therefor a
new Section 7.2 to read as follows:
7.2 Indebtedness. Borrower shall not, and shall not permit any of its
Subsidiaries to, incur, assume, or suffer to exist any Indebtedness other
than (a) the Obligations; (b) Subordinated Debt; (c) Indebtedness of
Borrower evidenced by the Senior Notes; (d) Indebtedness in a principal
amount of not more than $3,500,000 secured by a mortgage on the real estate
owned by Borrower located at ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇; and (e) other Indebtedness of Borrower in a principal amount not
in excess of Five Million Dollars ($5,000,000) at any one time outstanding
provided that not more than Two Million Five Hundred Thousand Dollars
($2,500,000) of Indebtedness permitted by this clause (e) may be secured by
any assets of Borrower or its Subsidiaries.
11. Asset Sales. The Fourth Restated Agreement is hereby further amended by
deleting Section 7.3 thereof in its entirety and by substituting therefor a new
Section 7.3 to read as follows:
7.3 Asset Sales. Borrower shall not, and shall not permit any of its
Subsidiaries to, sell, lease or otherwise dispose of any of the Collateral
or any interest therein or any of its other assets except for (a) the sale
of Inventory in the ordinary course of business; (b) the sale of assets no
longer used or useful in the business of Borrower or its Subsidiaries and
having an aggregate value of not more than Two Million Five Hundred
Thousand Dollars ($2,500,000) during any fiscal year.
12. Investments. The Fourth Restated Agreement is hereby further amended by
deleting Section 7.5 thereof in its entirety and by substituting therefor a new
Section 7.5 to read as follows:
7.5 Investments. Borrower shall not, and shall not permit any of its
Subsidiaries to make any Investment in any Person except for (i)
Acquisition of any Person engaged in the Pay Telephone business for which
the aggregate purchase price payable other than in shares of Common Stock
(whether payable in cash, notes, property, assumption of liabilities or
otherwise, with property being valued at the fair market value thereof and
notes and assumed liabilities being valued at the face amount thereof) is
not in excess of Two Million Dollars ($2,000,000.00) for any single
Acquisition or related series of Acquisitions; provided, however, that at
the time of such Acquisition, and giving effect thereto, there does not
exist a Default or Event of Default hereunder; and (ii) investments in
(a) certificates of deposit issued by commercial banks located in the
United States (including foreign banks with a United States Federal Branch)
having combined capital and surplus in excess of Five Hundred Million
Dollars ($500,000,000), and having a maturity date within one year after
the date such investment is made; (b) readily marketable commercial paper
of a domestic issuer rated at least "A-1" by Standard & Poor's Corporation
or "P-1" by ▇▇▇▇▇'▇ Investors Service, Inc.; and (c) direct obligations of
the United States of America or agencies thereof or obligations fully
guaranteed by the United States of America.
13. Financial Covenants. The Fourth Restated Agreement is hereby further
amended by deleting Sections 8.1 and 8.2 thereof in their entirety and by
substituting therefor new Sections 8.1 and 8.2 to read as follows:
8.1 Operating Cash Flow. Borrower shall maintain (i) as of the last day of
the fiscal quarter of Borrower ending March 31, 1997, Operating Cash Flow for
the fiscal quarter then ending of not less than $4,500,000, (ii) as of the last
day of the fiscal quarter of Borrower ending June 30, 1997, Operating Cash Flow
for the two fiscal quarters then ending of not less than $10,500,000, (iii) as
of the last day of the fiscal quarter of Borrower ending September 30, 1997,
Operating Cash Flow for the three fiscal quarters then ending of not less than
$16,500,000, and (v) as of the last day of each fiscal quarter of Borrower
ending after September 30, 1997, Operating Cash Flow for the four fiscal quarter
period then ending of not less than the amount set forth below opposite each
such applicable period: Applicable Period Amount
10/01/97 - 12/31/97 $22,500,000
01/01/98 - 03/31/98 $24,500,000
04/01/98 - 6/30/98 $26,000,000
07/01/98 - 09/30/98 $27,500,000
10/01/98 - 12/31/98 $29,000,000
01/01/99 - 03/31/99 $30,500,000
04/01/99 - 06/30/99 $31,000,000
07/01/99 - 09/30/99 $31,500,000
Each Fiscal Quarter Thereafter $32,000,000
8.2 Interest Coverage Ratio. Borrower shall maintain (i) as of the last day
of the fiscal quarter of Borrower ending March 31, 1997, an Interest Coverage
Ratio for the fiscal quarter then ending of not less than 1.30:1.00, (ii) as of
the last day of the fiscal quarter of Borrower ending June 30, 1997, Interest
Coverage Ratio for the two fiscal quarters then ending of not less than
1.50:1.00, (iii) as of the last day of the fiscal quarter of Borrower ending
September 30, 1997, Interest Coverage Ratio for the three fiscal quarters then
ending of not less than 1.50:1.00, and (v) as of the last day of each fiscal
quarter of Borrower ending after September 30, 1997, Interest Coverage Ratio for
the four fiscal quarter period then ending of not less than the ratio set forth
below opposite each such applicable period:
Applicable Period Ratio
10/01/97 - 12/31/97 1.50:1.00
01/01/98 - 03/31/98 1.75:1.00
04/01/98 - 12/31/98 2.00:1.00
Each Fiscal Quarter thereafter 2.25:1.00
14. Schedules. The Fourth Restated Agreement is hereby further amended by
supplementing each of the schedules thereof with the information attached hereto
as Exhibit A and incorporated herein by reference.
15. Note. The Fourth Restated Agreement is hereby further amended by
deleting Exhibit A thereof in its entirety and by substituting therefor new
Exhibit A attached hereto as Exhibit B and incorporated herein by reference.
16. Compliance Certificate. The Fourth Restated Agreement is hereby further
amended by deleting Exhibit C thereof in its entirety and by substituting
therefor new Exhibit C attached hereto as Exhibit C and incorporated herein by
reference.
17. Conditions Precedent. This Amendment shall not become effective unless
and until the following conditions have been met, to the sole and complete
satisfaction of the Lenders, the Agent and their respective counsel:
(a) No Material Adverse Change. Since November 30, 1996, there shall
not have occurred any material adverse change in the assets, liabilities,
business, operations or condition (financial or otherwise) of the Borrower,
or any event, condition, or state of facts which would be expected to have
a Material Adverse Effect subsequent to the date hereof;
(b) Fee. All fees due on or prior to the date hereof pursuant to that
certain letter agreement dated of even date herewith between Borrower and
Creditanstalt shall have been paid;
(c) Documentation. The Agent and the Lenders shall have received the
following documents, each duly executed and delivered to the Agent and the
Lenders, and each to be satisfactory in form and substance to Agent and its
counsel:
(i) this Amendment;
(ii) the Note;
(iii) the Compliance Certificate;
(iv) a certificate of the Secretary of Borrower certifying (i)
that attached thereto is a true and correct copy of the resolutions
adopted by its Board of Directors, authorizing the execution, delivery
and performance of this Amendment, the Note and the other documents
contemplated hereby, and (ii) as the incumbency and genuineness of its
officers executing this Amendment, the Note and the other documents
contemplated hereby;
(v) the written opinion of Steel, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to
Borrower, in the form and substance satisfactory to Lenders and Agent;
(vi) such other documents, instruments and agreements with
respect to the transactions contemplated by this Amendment, in each
case in such form and containing such additional terms and conditions
as may be reasonably satisfactory to the Majority Lenders, and
containing, without limitation, representations and warranties which
are customary and usual in such documents.
18. Representations and Warranties; No Default. Borrower hereby represents
and warrants to the Agent and the Lenders that giving effect to this Amendment,
(a) all of Borrower's representations and warranties contained in the Fourth
Restated Agreement and the other Loan Documents are true and correct as of the
date hereof in all material respects with the same force and effect as if made
on and as the date hereof except for such changes in such representations and
warranties which do not constitute a Default or Event of Default, which do not,
individually or in the aggregate, have a Material Adverse Effect and which have,
to the extent required, been disclosed to the Agent and the Lenders pursuant to
Section 6.2 or 6.8 of the Fourth Restated Agreement or otherwise; (b) no Default
or Event of Default has occurred and is continuing as of such date under any
Loan Document; (c) Borrower has the power and authority to enter into this
Agreement and to perform all of its obligations hereunder; (d) the execution,
delivery and performance of this Agreement have been duly authorized by all
necessary corporate action on the part of Borrower; and (e) the execution and
delivery of this Agreement and performance thereof by Borrower does not and will
not violate the Articles of Incorporation, By-laws or other organizational
documents of the Borrower and does not and will not violate or conflict with any
law, order, writ, injunction, or decree of any court, administrative agency or
other governmental authority applicable to Borrower or its properties.
19. Expenses. Borrower agrees to pay, immediately upon demand by the Agent,
all costs, expenses, attorneys' fees and other charges and expenses actually
incurred by the Agent in connection with the negotiation, preparation, execution
and delivery of this Agreement and any other instrument, document, agreement or
amendment executed in connection with this Agreement.
20. Defaults Hereunder. The breach of any representation, warranty or
covenant contained herein or in any document executed in connection herewith, or
the failure to observe or comply with any term or agreement contained herein
shall constitute a Default or Event of Default under the Fourth Restated
Agreement and the Agent and the Lenders shall be entitled to exercise all rights
and remedies they may have under the Fourth Restated Agreement, any other
documents executed in connection therewith and applicable law.
21. References. All references in the Fourth Restated Agreement and the
Loan Documents to the Fourth Restated Agreement shall hereafter be deemed to be
references to the Fourth Restated Agreement as amended hereby and as the same
may hereafter be amended from time to time.
22. Limitation of Agreement. Except as especially set forth herein, this
Agreement shall not be deemed to waive, amend or modify any term or condition of
the Fourth Restated Agreement, each of which is hereby ratified and reaffirmed
and which shall remain in full force and effect, nor to serve as a consent to
any matter prohibited by the terms and conditions thereof.
23. Counterparts. This Agreement may be executed in any number of
counterparts, and any party hereto may execute any counterpart, each of which,
when executed and delivered, will be deemed to be an original and all of which,
taken together will be deemed to be but one and the same agreement.
24. Further Assurances. Borrower agrees to take such further action as the
Agent or the Majority Lenders shall reasonably request in connection herewith to
evidence the amendments herein contained to the Fourth Restated Agreement.
25. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the successors and permitted assigns of the parties hereto.
26. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of law.
27. No Claim. Borrower hereby represents, warrants, acknowledges and agrees
to end with the Lenders and Agent that (a) Borrower neither holds nor claims any
right of action, claim, cause of action or damages, either at law or in equity,
against the Lenders and Agent which arises from, may arise from, allegedly arise
from, are based upon or are related in any manner whatsoever to the Fourth
Restated Agreement and the Loan Documents or which are based upon acts or
omissions of the Lenders or Agent in connection therewith and (b) the
Obligations are absolutely owed to the Lenders and Agent, without offset,
deduction or counterclaim.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment under
seal as of the date first written above.
"BORROWER"
PEOPLES TELEPHONE COMPANY, INC.
By: /s/ Bonnis S. Biummi
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
Attest: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Secretary
[CORPORATE SEAL]
"AGENT"
CREDITANSTALT-BANKVEREIN
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
[Signatures Continued On Next Page]
[Signatures Continued From Previous Page]
"LENDER"
CREDITANSTALT-BANKVEREIN
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Eecutive Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President