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EXHIBIT 10.13
FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (the
"Amendment") is made as of this 30th day of April, 1997 by and among Metrocall,
Inc., a Delaware corporation (the "Borrower"); The Toronto-Dominion Bank,
BankBoston, N.A. (formerly known as The First National Bank of Boston), First
Union National Bank of North Carolina, Fleet National Bank, Royal Bank of
Canada, PNC Bank, National Association, NationsBank of Texas, N.A., ▇▇▇▇▇ Bank
N.A. and SunTrust Bank, Central Florida, N.A. and ▇▇▇ ▇▇▇▇▇▇ American Capital
Prime Rate Income Trust (collectively, the "Banks") and Toronto Dominion
(Texas), Inc., as administrative agent for the Banks (the "Administrative
Agent"),
W I T N E S S E T H:
WHEREAS, the Borrower; the Banks; The Toronto-Dominion Bank, as
documentation agent (in such capacity, the "Documentation Agent"); BankBoston,
N.A. (formerly known as The First National Bank of Boston), as syndication
agent (in such capacity, the "Syndication Agent"); The Toronto-Dominion Bank
and BankBoston, N.A. (formerly known as The First National Bank of Boston), as
managing agents (in such capacity, the "Managing Agents"); and the
Administrative Agent are parties to that certain Amended and Restated Loan
Agreement dated as of September 20, 1996 (the "Loan Agreement"); and
WHEREAS, AAA Answering Services, Inc., AAA Answering Service of
▇▇▇▇▇▇▇, Inc., AAA Answering Service of Birmingham, Inc., Exchange Answering
Service of Louisville, Inc. and Exchange Answering Service of Memphis, Inc. are
each wholly-owned Subsidiaries of the Borrower (collectively, the "TMS
Subsidiaries"); and
WHEREAS, the Borrower desires to dispose of all of the former A+
Network telemessaging service assets and to cause the TMS Subsidiaries to
dispose of all of their assets pursuant to that certain Asset Purchase
Agreement (the "TMS Asset Purchase Agreement") dated as of April 8, 1997 (the
"TMS Asset Disposition") and thereafter to liquidate the TMS Subsidiaries; and
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WHEREAS, the Borrower has requested, and the Administrative Agent and
the Banks have agreed, subject to the terms hereof, to consent to the
transactions described above and to amend the Loan Agreement as provided
herein;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, the parties agree that all
capitalized terms used herein which are not otherwise defined herein shall have
the meanings ascribed thereto in the Loan Agreement, and further agree as
follows:
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1. Amendments to Article 1.
(a) Article 1 of the Loan Agreement, Definitions, is
hereby amended by deleting the table and the final sentence immediately
preceding the table in the definition of "Commitment Ratio" and substituting
the following in lieu thereof:
"As of April 30, 1997, the Commitment Ratios of the Banks party to
this Agreement are as follows:
Percent of Percent of Percent
Facility A Facility A Facility B Facility B Total of Total
Banks Commitment Commitment Commitment Commitment Commitment Commitment
The Toronto-Dominion $ 38,999,625.10 17.333166712% $ 21,666,458.40 17.333166720% $ 60,666,083.50 17.333166714%
Bank
BankBoston, N.A. $ 38,999,625.11 17.333166715% $ 21,666,458.39 17.333166712% $ 60,666,083.50 17.333166714%
(formerly known as
The First National
Bank of Boston)
First Union National $ 22,285,901.73 9.904845213% 12,381,056.52 9.904845216% $ 34,666,958.25 9.904845215%
Bank of North
Carolina
Fleet National Bank $ 22,285,901.73 9.904845213% 12,381,056.52 9.904845216% $ 34,666,958.25 9.904845215%
Royal Bank of Canada $ 22,285,901.73 9.▇▇▇▇▇▇▇▇▇% 12,381,056.52 9.904845216% $ 34,666,958.25 9.904845215%
PNC Bank, National $ 16,071,428.57 7.142857142% $8,928,571.43 7.142857142% $ 25,000,000.00 7.142857142%
Association
NationsBank of Texas, $ 22,285,901.73 9.904845213% 12,381,056.52 9.904845216% $ 34,666,958.25 9.904845215%
▇.▇.
▇▇▇▇▇ Bank N.A. $ 9,642,857.15 4.285714285% $5,357,142.85 4.285714285% $ 15,000,000.00 4.285714285%
SunTrust Bank, $ 9,642,857.15 4.285714285% $5,357,142.85 4.285714285% $ 15,000,000.00 4.285714285%
Central Florida,
National Association
▇▇▇ ▇▇▇▇▇▇ American $ 22,500,000.00 10.000000000% 12,500,000.00 10.000000000% $ 35,000,000.00 10.000000000%
Prime Rate Income
Trust
TOTALS: $ 225,000,000.00 100.00% 125,000,000.00 100.00% $350,000,000.00 100.00%"
(b) Article 1 of the Loan Agreement, Definitions, is
hereby further amended by deleting the definition of "Operating Cash Flow" in
its entirety and by substituting the following therefor:
"'Operating Cash Flow' shall mean, with respect to the
Borrower and the Restricted Subsidiaries on a consolidated basis for
any fiscal quarter, the sum of (a) Net Income for such quarter (after
eliminating any extraordinary gains and losses, including
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gains and losses from the sale of assets, other than sales of pagers
and other products or services in the ordinary course of business, and
any deferred tax benefits), plus (b) to the extent deducted in
determining Net Income, the sum of the following for such period: (i)
depreciation and amortization expense, (ii) Interest Expense plus the
amount of fees paid in respect of Indebtedness for Money Borrowed
during prior periods but amortized during such period in accordance
with GAAP, (iii) tax expense, and (iv) other non-cash charges, all as
determined in accordance with GAAP. For purposes of determining the
Senior Leverage Ratio and the Total Leverage Ratio, Operating Cash
Flow attributable to any Acquisition will be included in the foregoing
calculation from the first day of the fiscal quarter during which such
Acquisition occurs to the extent that the calculation of such
Operating Cash Flow is based on audited financial statements of the
Person acquired or whose assets are acquired by the Borrower or any of
the Restricted Subsidiaries, as applicable, or other such financial
statements which are satisfactory to the Managing Agents and which are
certified by the chief financial officer of the Borrower to be true,
complete and correct and prepared in accordance with GAAP, provided
that for purposes of calculating Operating Cash Flow attributable to
an Acquisition, the Borrower may make pro forma adjustments acceptable
to the Managing Agents to reflect reductions in costs of the
Acquisition effective at or near the time of the Acquisition.
Notwithstanding the foregoing, for the period from the Agreement Date
until financial statements for the quarter ending September 30, 1996
are required to have been delivered pursuant to Section 6.1 hereof,
Operating Cash Flow shall be calculated for the Borrower and the
Restricted Subsidiaries on a consolidated basis for the three (3) most
recent consecutive months for which financial results are available to
the Borrower."
(c) Article 1 of the Loan Agreement, Definitions, is
hereby further amended by adding thereto the following definition of
"Co-Agents" in the appropriate alphabetical order:
"'Co-Agents' shall mean, collectively, First Union National
Bank of North Carolina, Fleet National Bank, Royal Bank of Canada, PNC
Bank, National Association and NationsBank of Texas, N.A."
2. Amendment to Article 2. Section 2.7 of the Loan Agreement,
Prepayments and Repayments, is hereby amended by deleting the portion of
subsection (b)(ii), Scheduled Repayments under Facility B Commitment, preceding
the table therein and by substituting the following immediately before the
table in such subsection 2.7(b)(ii):
"(ii) Scheduled Repayments under Facility B Commitment.
Commencing March 31, 2000, the principal balance then outstanding
under the Facility B Commitment shall be amortized in quarterly
installments equal to the percentage of the original principal balance
outstanding under the Facility B Commitment set forth below on the
dates set forth below:"
3. Amendment to Article 6. Subsection 6.4 of the Loan Agreement,
Copies of Other Reports, is hereby amended by deleting the existing subsection
(e) in its entirety and by
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substituting the following therefor:
"(e) Prior to January 31 of each year, an annual budget
for the Borrower and the Restricted Subsidiaries, containing
information and in a form substantially similar to that shown in the
budget delivered to the Banks in connection with the execution of this
Agreement."
4. Amendments to Article 7.
(a) Section 7.6 of the Loan Agreement, Investments and
Acquisitions, is hereby amended by (i) removing the word "and" following "7.10"
in subsection (c) thereof, (ii) inserting a comma following "7.10" in such
subsection (c) and (iii) adding "and 7.12" after "7.11" in such subsection (c).
Subsection 7.6(c) is hereby further amended by deleting the "and" at the end of
subsection (c)(iii) and by adding the following new subsection (c)(v) thereto:
"(v) Acquisition of the assets of Radio and Communication
Consultants, Inc. ("RCC"), Advanced Cellular Telephone, Inc. ("ACT"),
Leroy Faith, Sr., ▇▇▇▇▇ ▇▇▇ Faith, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Faith and Leroy
Faith, Jr. (collectively, the "Shareholders") pursuant to that
certain Agreement and Plan of Merger dated April 26, 1996 among A+
Network, Inc. ("A+ Network"), RCC, ACT and the Shareholders, as
amended by that certain Amendment to Agreement and Plan of Merger
effective December 31, 1996 among the Borrower (as successor in
interest by merger with A+ Network), Metrocall of Shreveport, Inc.,
RCC, ACT, the Shareholders and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as escrow agent; and"
(b) Section 7.8 of the Loan Agreement, Senior Leverage
Ratio, is hereby amended by deleting the phrase "at the time of any proposed
sale, exchange or other disposition of assets by the Borrower or any Restricted
Subsidiary" and substituting in lieu thereof the phrase "at the time of any
Asset Disposition by the Borrower or any Restricted Subsidiary."
(c) Section 7.9 of the Loan Agreement, Total Leverage
Ratio, is hereby amended by deleting the phrase "at the time of any proposed
sale, exchange or other disposition of assets by the Borrower or any Restricted
Subsidiary" and substituting in lieu thereof the phrase "at the time of any
Asset Disposition by the Borrower or any Restricted Subsidiary."
(d) Section 7.10 of the Loan Agreement, Annualized
Operating Cash Flow to Pro Forma Debt Service Ratio, is hereby amended by
deleting the phrase "at the time of any proposed sale, exchange or other
disposition of assets by the Borrower or any Restricted Subsidiary" and
substituting in lieu thereof the phrase "at the time of any Asset Disposition
by the Borrower or any Restricted Subsidiary."
(e) Section 7.12 of the Loan Agreement, Operating Cash
Flow to Net Cash Interest Expense Ratio, is hereby amended by deleting the
phrase "at the time of any proposed sale, exchange or other disposition of
assets by the Borrower or any Restricted Subsidiary" and substituting in lieu
thereof the phrase "at the time of any Asset Disposition by the Borrower or any
Restricted Subsidiary."
5. Amendments to Schedules to Loan Agreement. Schedules 5, 8, 9,
10 and 11 to the Loan Agreement, are hereby amended by deleting the existing
Schedules 5, 8, 9, 10 and 11 in their entireties and by substituting the
attached Schedules 5, 8, 9, 10 and 11, in lieu thereof.
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6. Consent.
(a) Notwithstanding Section 7.4(a) of the Loan Agreement,
the Banks hereby consent to the TMS Asset Disposition. On or prior to
consummation of the TMS Asset Disposition, the Borrower shall provide to the
Managing Agents, in form and substance satisfactory to the Managing Agents, (i)
evidence of receipt by the Borrower of cash consideration of at least
$10,300,000, (ii) evidence of receipt by the escrow agent of $700,000 in
accordance with the terms of the TMS Asset Purchase Agreement, (iii)
certification to the Agents and the Banks of the Borrower's compliance with
Sections 7.8, 7.9, 7.10, 7.11 and 7.12 of the Loan Agreement after giving
effect to the TMS Asset Disposition together with any calculations necessary to
demonstrate such compliance, (iv) certification to the Agents and the Banks
that a Default does not exist and will not be caused by the TMS Asset
Disposition, (v) all material information pertaining to the TMS Asset
Disposition and (vi) evidence of compliance with Sections 7.4(a)(i), 7.4(a)(ii)
and 7.4(a)(iii) of the Loan Agreement. The Banks acknowledge and agree that,
for purposes of Section 7.4(a) of the Loan Agreement, the Net Available
Proceeds from the TMS Asset Disposition shall not count against the $10,000,000
basket.
(b) Notwithstanding Section 7.4(b) of the Loan Agreement,
the Banks hereby consent to the liquidation of the TMS Subsidiaries so long as
the TMS Asset Disposition has been completed in accordance with the terms and
condition of 6(a) above.
7. Strict Compliance. Except for the amendments and consent set
forth above, the text of the Loan Agreement shall remain unchanged and in full
force and effect. The amendments and consent agreed to herein shall not
constitute a modification of the Loan Agreement or a course of dealing with the
Agents and the Banks, or any of them, at variance with the Loan Agreement such
as to require further notice by the Administrative Agent, the Banks, the
Majority Banks, or any of them, to require strict compliance with the terms of
the Loan Agreement, as amended by this Amendment, in the future.
8. Representations and Warranties. The Borrower hereby
represents and warrants to and in favor of the Administrative Agent and the
Banks as follows:
(a) Each representation and warranty set forth in Article
4 of the Loan Agreement, as amended hereby, is hereby restated and affirmed as
true and correct in all material respects as of the date hereof, except to the
extent previously fulfilled in accordance with the terms of the Loan Agreement,
as amended hereby, and to the extent relating specifically to the Agreement
Date or otherwise inapplicable;
(b) The Borrower has the corporate power and authority
(i) to enter into this Amendment, and (ii) to do all acts and things as are
required or contemplated hereunder to be done, observed and performed by it;
(c) This Amendment has been duly authorized, validly
executed and delivered by one or more Authorized Signatories of the Borrower,
and constitutes the legal, valid and
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binding obligations of the Borrower, enforceable against the Borrower in
accordance with its terms, subject, as to enforcement of remedies, to the
following qualifications: (i) an order of specific performance and an
injunction are discretionary remedies and, in particular, may not be available
where damages are considered an adequate remedy at law, and (ii) enforcement
may be limited by bankruptcy, insolvency, liquidation, reorganization,
reconstruction and other similar laws affecting enforcement of creditors'
rights generally (insofar as any such law relates to the bankruptcy, insolvency
or similar event of the Borrower); and
(d) The execution and delivery of this Amendment and
performance by the Borrower under the Loan Agreement, as amended hereby, does
not and will not require the consent or approval of any regulatory authority or
governmental authority or agency having jurisdiction over the Borrower which
has not already been obtained, nor be in contravention of or in conflict with
the Certificate of Incorporation or By-Laws of the Borrower, or any provision
of any statute, judgment, order, indenture, instrument, agreement, or
undertaking, to which the Borrower is party or by which the Borrower's assets
or properties are bound.
9. Conditions Precedent to Effectiveness of Amendment. The
effectiveness of this Amendment is subject to:
(a) all of the representations and warranties of the
Borrower under Section 8 hereof which are made as of the date hereof,
shall be true and correct in all material respects;
(b) receipt by the Administrative Agent and the Banks of
a signed legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel to the
Borrower and its Subsidiaries, in form and substance satisfactory to
the Administrative Agent and its special counsel;
(c) receipt by the Administrative Agent and the Banks of
a certificate of incumbency with respect to each Authorized Signatory
of the Borrower, in form and substance satisfactory to the
Administrative Agent and its special counsel; and
(d) receipt of any other documents that the
Administrative Agent, the Banks, or any of them, may reasonably
request, certified by an officer of the Borrower if so requested.
10. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same agreement.
11. Law of Contract. This Amendment shall be deemed to be made
pursuant to the laws of the State of New York and shall be construed,
interpreted, performed and enforced in accordance therewith.
12. Loan Document. This Amendment shall constitute a Loan
Document.
13. Effective Date. Upon satisfaction of the conditions precedent
referred to in Section 9 above, this Amendment shall be effective as of the
30th day of April, 1997.
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IN WITNESS WHEREOF, the parties hereto have caused their respective
duly authorized officers or representatives to execute, deliver and (in the
Borrower's case) seal this Amendment as of the day and year first above
written, to be effective as set forth in Section 13 hereof.
BORROWER: METROCALL, INC., a Delaware corporation
By:
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Its:
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[CORPORATE SEAL] Attest:
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Its:
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ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By:
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Title:
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BANKS: THE TORONTO-DOMINION BANK
By:
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Title:
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BANKBOSTON, N.A. (formerly known as The First
National Bank of Boston)
By:
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Title:
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BANKS FIRST UNION NATIONAL BANK OF NORTH CAROLINA
(continued)
By:
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Title:
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FLEET NATIONAL BANK
By:
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Title:
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ROYAL BANK OF CANADA
By:
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Title:
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PNC BANK, NATIONAL ASSOCIATION
By:
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Title:
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NATIONSBANK OF TEXAS, N.A.
By:
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Title:
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BANKS ▇▇▇▇▇ BANK N.A.
(continued)
By:
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Title:
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SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:
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Title:
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▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME RATE INCOME TRUST
By:
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Title:
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