exv10w4



 






Exhibit 10.4




AMENDMENT NO. 1




          AMENDMENT NO. 1 (this “Amendment”), dated as of December 8, 2004, to
the credit agreement, dated as of November 16, 2004 (the “Credit Agreement”; capitalized
terms used herein and not defined herein shall have the meaning assigned to such terms in the
Credit Agreement), among Metrocall, Inc., a Delaware corporation and Arch Wireless Operating
Company, Inc., a Delaware corporation, as borrowers (together, “Borrowers”), UBS AG,
Stamford Brach, as administrative agent (the “Administrative Agent”) and the Required
Lenders.




W I T N E S S E T H:



          WHEREAS, Section 10.02(b) of the Credit Agreement permits the Credit
Agreement to be waived, amended, supplemented or modified from time to time with the
written consent of the Required Lenders;




          NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:




          SECTION ONE Amendments.




          (a) Section 1.01 of the Credit Agreement shall be amended by adding
thereto the following: “First Amendment Effective Date” shall mean the Effective Date (as
such term is defined in Amendment No. 1 to this Agreement).




          (b) The text and heading of Section 5.14 shall be replaced in its entirety
with the following: “Authorization of Collateral Agent to Terminate Concentration Account.
On or after the First Amendment Effective Date, the Collateral Agent shall be authorized
to terminate the Concentration Account (which is entitled “Account Control Agreement”),
dated as of the Closing Date, among Metrocall, the Collateral Agent and UBS Financial
Services Inc. in accordance with the terms thereof; provided that (i) all securities in the
Concentration Account shall have been converted to cash such that at the time of such termination,
no asset other than cash shall be contained in the Concentration Account and (ii) upon
such termination, all of the cash in the Concentration Account shall be used to make prepayments
pursuant to Section 2.10(a).”




          (c) Section 8.01 shall be amended by: (i) deleting the reference to “5.14” in
clause (d) thereof, (ii) adding, in clause (g)(i) thereof, the word “United States” immediately
prior to the word “Code” and (iii) in the parenthetical phrase contained in Section 8.01(i),
deleting (1) the entire text of clause (y) appearing therein and (2) the reference to the character
“(x)” appearing therein.




 









 





-2-





          SECTION TWO Conditions to Effectiveness. This Amendment shall become
effective as of the date (the “Effective Date”) when, and only when the Administrative Agent
shall have received counterparts of this Amendment executed by each Borrower, the Administrative
Agent and a number of Lenders sufficient to constitute the Required Lenders. The effectiveness
of this Amendment (other than Sections Five, Six and Seven hereof) is conditioned
upon the accuracy of the representations and warranties set forth in Section Three
hereof.




          SECTION THREE Representations and Warranties. In order to induce the
Required Lenders to enter into this Amendment, Borrowers, jointly and severally, represent
and warrant to each of the Lenders and the Administrative Agent that, before and after giving
effect to this Amendment, (a) no Default or Event of Default has occurred and is continuing,
(b) all of the representations and warranties in the Credit Agreement are true and complete in
all material respects on and as of the date hereof as if made on the date hereof (or, if any such
representation or warranty is expressly stated to have been made as of a specific date, as of
such specific date) and (c) each stockholder of Metrocall Public that shall have demanded appraisal
rights in respect of any of its shares of Metrocall Public has irrevocably withdrawn
such demand for appraisal rights in the manner required by applicable law for all of such
stockholder’s shares of Metrocall Public.




          SECTION FOUR Reference to and Effect on the Credit Agreement. On and
after the Effective Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,”
“hereof” or words of like import referring the Credit Agreement, and each reference
in each Loan Document to “the Credit Agreement,” “thereunder,” “thereof” or words of like
import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement,
as amended by this Amendment. The Credit Agreement and each of the other Loan
Documents, as specifically amended by this Amendment, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed. The execution, delivery
and effectiveness of this Amendment shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of any Lender or any Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan Documents.




          SECTION FIVE Costs and Expenses. Borrowers agree to pay all reasonable
costs and expenses of the Administrative Agent in connection with the preparation, execution
and delivery of this Amendment and the other instruments and documents to be delivered
hereunder, if any (including, without limitation, the reasonable fees and expenses of Cahill
Gordon & Reindel LLP, counsel to the Administrative Agent) in accordance with the terms of
Section 10.03(a)(i) of the Credit Agreement.




          SECTION SIX Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken together
shall constitute but one and the same agreement. Delivery of an executed counterpart of a





 









 





-3-




signature page to this Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment.




          SECTION SEVEN Governing Law. This Amendment shall be construed in
accordance with and governed by the law of the State of New York, without regard to conflicts
of law principles that would require the application of the laws of another jurisdiction.




[Signature Pages Follow]




 









 





-4-



	 	 	 	 	 
	 	METROCALL, INC.

 	 
	 	By:  	/s/ George Moratis
 	 
	 	 	Name:  	George Moratis 	 
	 	 	Title:  	Treasurer 	 



	 	 	 	 	 
	 	ARCH WIRELESS OPERATING COMPANY, INC.

 	 
	 	By:  	/s/ George Moratis
 	 
	 	 	Name:  	George Moratis 	 
	 	 	Title:  	Treasurer 	 




 









 





-5-




	 	 	 	 	 
	 	UBS AG, STAMFORD BRANCH, as Administrative Agent
	 
	 	By:  	/s/ Wilifred V. Saint
 	 
	 	 	Name:  	Director 	 
	 	 	Title:  	Banking Products Services, US 	 



	 	 	 	 	 
	 	By:  	/s/ Doris Mesa
 	 
	 	 	Name:  	Associate Director 	 
	 	 	Title:  	Banking Products Services, US