EXHIBIT 10.2
EXECUTION COPY
FIRST AMENDMENT TO CREDIT AGREEMENT
($60,000,000)
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ($60,000,000) (this "Amendment"),
dated as of February 19, 2003, is entered into by and among METROCALL, INC., a
Delaware corporation, as the borrower (the "Borrower"), the various financial
institutions parties hereto, as lenders (collectively, the "Lenders"), and
TORONTO DOMINION (TEXAS), INC., individually and as agent (in such capacity
together with any successors thereto in such capacity, the "Agent") for the
Lenders.
W I T N E S S E T H
WHEREAS, the Borrower, the Lenders and the Agent have heretofore entered
into that certain Credit Agreement dated as of October 8, 2002 (as from time to
time amended, supplemented, restated or otherwise modified, including pursuant
to this Amendment, the "Credit Agreement"), pursuant to which the Lenders and
the Agent have agreed to make Loans to the Borrower; and
WHEREAS, Holdings, the Lenders and the Agent have heretofore entered into
that certain Credit Agreement dated as of October 8, 2002, pursuant to which the
Lenders have agreed to make Loans to Holdings (together with the Credit
Agreement, the "Credit Agreements"); and
WHEREAS, the Borrower, Holdings and the Agent have entered into an
agreement regarding administrative fees payable to the Agent in connection with
its services under the Credit Agreements; and
WHEREAS, the Borrower, the Lenders and the Agent intend to amend the
Credit Agreement to provide for, among other things, the inclusion of the
aforementioned fee agreement as a "Loan Document" under the Credit Agreement and
the other Loan Documents; and
WHEREAS, subject to the terms and conditions of this Amendment, the
parties hereto are willing to enter into this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Borrower, the Lenders and the Agent hereby agree as
follows:
1. Definitions. Except as amended hereby, terms used herein when defined
in the Credit Agreement shall have the same meanings herein unless the context
otherwise requires.
2. Amendments to Credit Agreement. The Credit Agreement is hereby amended
as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by inserting the
following definition of "Fee Letter" in the alphabetically appropriate place:
""Fee Letter" means that certain Agreement Regarding Administrative
Agent's Fees dated as of February 14, 2003, by and among the
Borrower, Holdings and the Agent, as such agreement may be amended,
restated, modified or supplemented from time to time."
(b) Section 1.1 of the Credit Agreement is hereby amended by deleting the
definition of "Loan Documents" and replacing such definition with the following:
""Loan Documents" means (a) this Agreement; (b) the Notes; (c) the
Security Documents; (d) the Senior Secured PIK Credit Agreement; (e)
the PIK Notes; (f) the Intercreditor Agreement; (g) the Fee Letter;
and (h) all instruments, certificates and agreements now or
hereafter executed or delivered to the Agent or any Lender pursuant
to or in connection with any of the foregoing, as well as all
amendments, modifications, renewals, extensions, increases and
rearrangements of, and substitutions for, any of the foregoing."
(c) The title of Article III is hereby amended in its entirety to read as
follows:
"REPAYMENTS, PREPAYMENTS, INTEREST AND FEES"
(d) A new Section 3.3 is hereby inserted to the Credit Agreement following
Section 3.3.2 thereof to read as follows:
"SECTION 3.3. Fees. Borrower agrees to pay to the Agent, for its own
account, the fees set forth in the Fee Letter, in the amounts, at
the times and on the conditions set forth therein.
3. Representations and Warranties. To induce the Lenders and the Agent to
enter into this Amendment, the Borrower hereby represents and warrants as
follows:
(a) The execution, delivery and performance by the Borrower of this
Amendment are within the Borrower's corporate powers, has been duly authorized
by all necessary action of the Borrower, and do not and will not (i) contravene
the Borrower's Organic Documents or any Material Agreement of the Borrower,
including the Licenses to which MUSA is a party or by which it or its Property
may be bound; (ii) contravene any Law binding on or affecting the Borrower; or
(iii) result in, or require the creation or imposition of, any Lien on the
Property of the Borrower, except for Permitted Liens; and
(b) This Amendment is a legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, liquidation,
reorganization or similar laws affecting the enforcement of creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law; and
(c) Upon giving effect to this Amendment, no event has occurred and is
continuing which constitutes an Event of Default or which would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both.
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4. Effectiveness. This Amendment shall be effective as of February 19,
2003, following the Agent's receipt of (i) this Amendment, duly executed by the
Borrower and at least the Required Lenders (or, in the case of any party as to
which an executed counterpart shall not have been received, telegraphic,
electronic or other written confirmation from such party of execution of a
counterpart hereof by such party) and (ii) the Fee Letter, duly executed by the
Borrower and Holdings.
5. Incorporation; Ratification of Credit Agreement. This Amendment shall
be deemed to be an amendment to the Credit Agreement, and the Credit Agreement,
as amended hereby, is hereby ratified, approved and confirmed in each and every
respect. All representations, warranties and covenants contained herein shall
constitute representations, warranties and covenants under the Credit Agreement
as if set forth in full therein. All references to the Credit Agreement in any
other document, instrument, agreement or writing shall hereafter be deemed to
refer to the Credit Agreement as amended hereby. This Amendment is a Loan
Document, and failure by the Borrower to comply with each of the terms and
conditions of this Amendment shall constitute an Event of Default under the Loan
Documents.
6. Governing Law; Entire Agreement. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER, AND GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF NEW
YORK. This Amendment constitutes the entire understanding among the parties
hereto with respect to the subject matter hereof and supersede any prior
agreements, written or oral, with respect thereto.
7. Severability. Any provision of this Amendment that is prohibited or
unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
8. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Amendment by signing one or
more counterparts. Any signature hereto delivered by a party by facsimile
transmission shall be deemed to be an original signature hereto.
9. Successors and Assigns. This Amendment shall be binding upon the
Borrower and its successors and permitted assigns and shall inure, together with
all rights and remedies of each Lender and the Agent hereunder, to the benefit
of each Lender and the Agent and the respective successors, transferees and
assigns.
[SIGNATURE PAGES FOLLOW]
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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.
METROCALL, INC.,
as the Borrower
By: ____________________________________
Name:
Title:
▇-▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇▇), INC.,
individually as the Agent and as a
Lender
By: ____________________________________
Name:
Title:
S-2
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: ____________________________________
Name:
Title:
S-3
FLEET NATIONAL BANK, as a Lender
By: ____________________________________
Name:
Title:
S-4
ENDEAVOR L.L.C., as a Lender
By: ____________________________________
Name:
Title:
S-5
COMMERCIAL LOAN FUNDING TRUST I,
as a Lender
By: ____________________________________
Name:
Title:
S-6
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as a Lender
By: ____________________________________
Name:
Title:
S-7
CAPITAL CROSSOVER PARTNERS,
as a Lender
By: ____________________________________
Name:
Title:
S-8
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ VALUE PARTNERS, L.P.,
as a Lender
By: ____________________________________
Name:
Title:
S-9
ALPINE ASSOCIATES, L.P., as a Lender
By: ____________________________________
Name:
Title:
S-10
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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2.1 Debtors Second Amended Joint Plan of Reorganization under
Chapter 11 of the Bankruptcy Code, dated June 18, 2002.(a)
2.2 Second Amended Disclosure Statement Pursuant to Section 1125
of the Bankruptcy Code with respect to Joint Plan of
Reorganization for the Debtors under Chapter 11 of the
Bankruptcy Code, dated July 18, 2002.(a)
2.3 Order Confirming Metrocall, Inc. Joint Plan of Reorganization,
excluding exhibits other than the Plan (b)
3.1 Amended and Restated Certificate of Incorporation of
Metrocall.(b)
3.2 Amended and Restated Bylaws of Metrocall.(b)
4.1 Certificate of Designation, Number, Powers, Preferences and
Relative, Participating, Optional and Other Rights of Series A
Preferred Stock of Metrocall.(b)
10.1 $60,000,000 Credit Agreement by and among Metrocall, Inc.
(f/k/a ▇▇▇▇▇ RCC Communications, Inc.), certain lenders and
Toronto Dominion (Texas), Inc. as administrative agent, dated
as of October 8, 2002 ("Loan Agreement").+
10.2 First Amendment to Loan Agreement, dated February 19, 2003.+
10.3 $20,000,000 Credit Agreement by and among Metrocall Holdings,
Inc. (f/k/a Metrocall, Inc.), certain lenders and Toronto
Dominion (Texas), Inc. as administrative agent, dated as of
October 8, 2002 ("PIK Loan Agreement").+
10.4 First Amendment to PIK Loan Agreement, dated February 19,
2003.+
10.5 Employment Agreement between Metrocall and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
III.+
10.6 Employment Agreement between Metrocall and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.+
11.1 Statement re computation of per share earnings.+
21.1 Subsidiaries of Metrocall.+
99.1 Certification pursuant to 18 U.S.C. Section 1350 (Section 906
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002)+
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+ Filed herewith.
(a) Incorporated by reference to Metrocall's Quarterly Report on Form 10-Q
filed with the Commission on August 19, 2002.
(b) Incorporated by reference to Metrocall's Registration Statement on Form
8-A filed with the Commission on October 9, 2002.
S-11
