EXHIBIT 4.3.4
FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Fifth Amendment to Amended and Restated Credit Agreement
(this "Amendment" or the "Fifth Amendment"), dated as of June 5, 2002 (the
"Amendment Date"), is made by and among: (i) O2wireless Solutions, Inc., a
Georgia corporation, f/k/a Clear Holdings, Inc. ("Parent"); (ii) O2wireless,
Inc., a Georgia corporation, f/k/a Clear Communications Group, Inc.
("Borrower"), individually and as successor-by-merger to TWR Telecom, Inc., a
Texas corporation ("Telecom"); (iii) O2wireless Lighting, Inc., a Texas
corporation, f/k/a TWR Lighting, Inc. ("Lighting"); (iv) O2wireless Systems
Group, Inc., an Illinois corporation, f/k/a Communications Consulting Services,
Inc. ("Systems Group"), individually and as successor-by-merger to Cellular
Technology, Inc., a Missouri corporation ("CTI"); (v) O2wireless Deployment,
Inc., a Georgia corporation ("Deployment"), individually and as
successor-by-merger to (A) ISDC, Inc., a Georgia corporation ("ISDC"), (B)
Communications Development Systems, Inc., ("CDS"), and (C) Specialty Drilling,
Inc., a Texas corporation ("SDI"); (vi) O2wireless Site Development, Inc., a
Georgia corporation ("Site Development"), individually and as
successor-by-merger to (A) Clear Program Management, Inc., a Georgia
corporation ("CPM"); and (B) Clear Tower Corporation, a Georgia corporation
("CTC"); (vii) Young & Associates, Inc., a Nevada corporation ("Young"); (viii)
O2wireless North Carolina, Inc., a North Carolina corporation, f/k/a Cardinal
Engineering, Inc. ("North Carolina") (Parent, Lighting, Systems Group,
Deployment, Site Development, Young and North Carolina hereinafter sometimes
called, collectively, "Current Affiliate Guarantors" or, individually a
"Current Affiliate Guarantor"); and (ix) Wachovia Bank, N.A. a national banking
association (in its individual capacity, "Wachovia"), (A) as a Lender (as
hereinafter defined), (B) as successor-in-interest to First Union National
Bank, a national bank ("FUNB"), and (C) as agent for itself and each other
Lender from time to time party to the Credit Agreement defined below (Wachovia,
acting in such capacity, hereinafter sometimes called "Agent"), for the purpose
of amending that certain Amended and Restated Credit Agreement (as amended to
date, the "Credit Agreement"), dated as of September 29, 2000 (the "Closing
Date"), originally made among FUNB, Wachovia, Agent, Parent, Borrower, Telecom,
Lighting, CTI, CPM, CTC, ISDC, CDS, SDI and Xxxxxx Tower Company, a Tennessee
corporation ("Xxxxxx"). Capitalized terms used in this Amendment, and not
otherwise expressly defined herein, shall have the meanings given to such terms
the Credit Agreement, as amended hereby. Subsequent to the Closing Date, (i)
Xxxxxx was dissolved and its assets were contributed to Borrower, (ii) Systems
Group became an Affiliate Guarantor pursuant to a Joinder Agreement, dated as
of June 30, 2000, made by Systems Group in favor of Agent and Lenders; (iii)
Young became an Affiliate Guarantor pursuant to a Joinder Agreement, dated as
of December 20, 2000, made by Young in favor of Agent and Lenders; (iii) Site
Development became an Affiliate Guarantor by virtue of its merger with each of
CPM and CTC, effective on December 29, 2000; (iv) Deployment became an
Affiliate Guarantor by virtue of its merger with each of ISDC, CDS and SDI,
effective on December 29, 2000; and (v) North Carolina became an Affiliate
Guarantor pursuant to a Joinder Agreement, dated as of January 24, 2001, made
by North Carolina in favor of Agent and Lenders.
RECITALS:
WHEREAS, Wachovia, as sole Lender and Agent, has agreed with
Borrower to modify certain terms and conditions of the Credit Agreement; and
WHEREAS, all Current Affiliate Guarantors will obtain direct
and material economic benefits from this Amendment being made, and have agreed
to join with Borrower in executing this Amendment in order to confirm their
continuing credit support to Borrower in respect thereof; and
NOW, THEREFORE, in consideration of the foregoing recitals
and the agreements, provisions and covenants herein contained, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Current Affiliate
Guarantors (sometimes hereinafter called, collectively, the "Loan Parties" and,
individually a "Loan Party"), together with Wachovia, as sole Lender and Agent,
each intending to be legally bound, hereby acknowledge, covenant and agree as
follows:
1. Definitions. In addition to terms defined in the Credit
Agreement and used in this Amendment as defined therein, and terms elsewhere
defined in this Amendment, the following terms, as and when used in the Credit
Agreement, henceforth shall have the meanings assigned to such terms
hereinbelow (and such terms, together with all other terms elsewhere defined in
this Amendment, shall be deemed expressly incorporated by reference into
Section 10.1 of the Credit Agreement and made an integral part thereof in the
appropriate alphabetical order) effective as of the Amendment Date:
(i) the "Borrowing Limitation" definition appearing in Section
10.1 shall be changed in its entirety to read as follows:
"Borrowing Limitation" shall mean an amount equal to the
lesser of (A) the Borrowing Base; or (B) $9,668,000, reducing,
however, to (i) $9,318,000, on May 20, 2002, (ii) $9,068,000, on July
1, 2002, and (iii) subsequent to July 1, 2002, to $9,068,000 minus the
sum of $250,000 per month, effective on the first day of each
succeeding calendar month; e.g., said amount shall reduce to
$8,818,000 effective on August 1, 2002; the foregoing to be
accompanied by mandatory reductions in the Revolving Loans then
outstanding of not less than $350,000, to be made on May 20, 2002, and
not less than $250,000 per month, to be made beginning on the first
day of July, 2002, and continuing on the first day of each succeeding
calendar month thereafter; and reducing to zero (0) on the Expiry
Date.
(ii) the "Expiry Date" definition appearing in Section 10.1 shall
be changed, in its entirety, to read as follows:
"Expiry Date" means November 15, 2002.
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(iii) there shall be deemed added to Section 10.1 of the Credit
Agreement, in the appropriate alphabetical order, a new definition, to read as
follows:
"Fourth Amendment" shall mean the Fourth Amendment, dated as
of May 20, 2002, amending this Agreement.
2. No More Loans. The terms of Section 2 of the Fourth
Amendment, pertaining to the termination of the Revolving Loan Commitment, are
incorporated by reference herein and made an integral part hereof, as a
restatement thereof for clarity.
3. EBITDA. In reference to Section 3 of the Fourth Amendment,
the terms of which are likewise incorporated by reference herein and made an
integral part hereof, the suspension of Borrower's compliance with Section
4.2(F) of the Credit Agreement referenced therein shall be permitted by Lenders
to be continued through the Fiscal Quarter ending September 30, 2002, in
addition to the Fiscal Quarter ending June 30, 2002, so long as Borrower's
EBITDA for each such Fiscal Quarter, adjusted as reflected in the last sentence
of this Section 3, is at least $1.00; provided, however, that, in the event
that EBITDA for a Fiscal Quarter, as so adjusted, is less than $1.00, the
suspension of Borrower's compliance with Section 4.2(f) of the Credit Agreement
referenced therein shall be permitted by Lenders to be continued through the
Fiscal Quarter ending September 30, 2002, so long as and provided that Xxxxx
makes cash available to Borrower, either in the form of an equity contribution
or one or more subsequent disbursements of the Xxxxx Loan, as that term is
defined in Section 5 below (separate and apart, however, from the initial
disbursement of the Xxxxx Loan), in an amount equal to the amount necessary to
cause EBITDA for such Fiscal Quarter to be at least $1.00 or, solely for the
Fiscal Quarter ending June 30, 2002, the sum of $3,000,000, if the lesser
amount (but no such limitation shall apply in respect of the Fiscal Quarter
ending September 30, 2002), with such cash to be made available to Borrower as
soon as practicable after, but not later than thirty (30) days after, the end
of such Fiscal Quarter; and provided, further, that Borrower provides
documentary evidence to such effect to the Agent coincident with such cash
being made available to Borrower. For purposes of determining Borrower's
compliance herewith, there shall be added back to EBITDA for the Fiscal
Quarters ended June 30, 2002 and September 30, 2002 any non-cash restructuring
expenses incurred during such period and any accrued, but unpaid fees payable
to Xxxxx (as that term is hereinafter defined) during such period, in each
case, to the extent deducted in computing net income for such period; but, any
cash restructuring expenses incurred during such period and any cash fees paid
to Xxxxx during such period (including, but not limited to, those permitted to
be paid pursuant to Section 4 below) shall not be added back to EBITDA.
4. Merger. Lender acknowledges receipt of notice from Borrower
that, effective not later than the Amendment Date, Borrower intends to enter
into a merger agreement (herein, together with all material documents to be
executed in connection therewith, the "Xxxxx Merger Agreement") with Xxxxx
Acquisition Sub, Inc., a Georgia corporation ("Xxxxx"), pursuant to which as
soon as practicable but in any event on or prior to December 31, 2002, Borrower
intends to merge with and into Xxxxx (the "Xxxxx Merger") resulting in, among
other things, a change of control of Borrower under the terms of Section 6.1(O)
of the Credit Agreement, constituting an Event of Default. Lender has agreed
with Borrower to forbear from taking action in respect of the Default
occasioned by Borrower's entry into the Xxxxx Merger Agreement and to waive the
Event of Default caused by the Merger actually occurring so long as and
provided
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that (i) Lender shall have had an opportunity to review and approve the terms
of the Xxxxx Merger Agreement prior to its becoming effective (which approval
shall be evidenced by Lender's execution hereof) and (ii) the Credit Agreement
is terminated and all Obligations are fully paid and satisfied before, or
simultaneously with (but not later than the effective date of) the Xxxxx
Merger being consummated. Lender further consents to and agrees that, during
the period between the Amendment Date and the date on which the Xxxxx Merger is
consummated, Borrower may pay, and Xxxxx may receive, cash consulting fees not
to exceed $40,000 per month, so long as and provided that no Event of Default
or Default then exists or otherwise would be caused by any such payment being
made.
5. Subordinated Indebtedness. Lender further acknowledges
receipt of notice from Borrower that, effective on the Amendment Date, Borrower
intends to enter into a note purchase agreement, loan agreement or similar
agreement with Xxxxx (herein, together with all material documents to be
executed in connection therewith, the "Xxxxx Loan Agreement"), pursuant to
which Borrower intends to borrow initially from Xxxxx on the date hereof the
principal sum, in cash, of $5,000,000 (such initial amount, plus any other,
subsequent amounts that Borrower may borrow from Xxxxx pursuant thereto, herein
called, collectively, the "Xxxxx Loan"), the entire amount of which Xxxxx Loan
shall be secured by a Lien (subordinate to Agent's Lien) to be granted on all
or certain assets of Borrower and the Affiliate Guarantors (the "Xxxxx Xxxx").
Lender hereby consents to the borrowing by Borrower of the Xxxxx Loan and the
granting by Borrower and the Affiliate Guarantors to Xxxxx of the Xxxxx Xxxx so
long as and provided that (i) Agent shall have had the opportunity to review
and approve all terms of the Xxxxx Loan Agreement prior to its becoming
effective, which approval shall be evidenced by Lender's execution of the
subordination agreement with Xxxxx referenced in clause (iii) below; (ii) the
entire proceeds of the initial disbursement ($5,000,000) of the Xxxxx Loan are
made and disbursed to Borrower, in full, on the Amendment Date, thereafter to
be used by Borrower for its working capital needs and, as may be required under
Section 1 above, in respect of the Borrowing Limitation, to repay Revolving
Loans; and (iii) Xxxxx shall have executed a subordination agreement with Agent
on the Amendment Date, in form and content acceptable to Agent in its sole
discretion, pursuant to which Xxxxx shall subordinate its rights, Liens and
claims against Borrower and the Affiliate Guarantors arising under the Xxxxx
Loan Agreement and the Xxxxx Merger Agreement to those of Agent and Lenders
against Borrower and the Affiliate Guarantors arising under the Credit
Agreement.
6. Certain Representations And Warranties Of Loan Parties. Each
Loan Party represents and warrants to Wachovia as the Agent and sole Lender as
further inducements to its entry into this Amendment that: (a) it has the power
and authority to enter into, deliver and to perform this Amendment and any Loan
Documents to be executed and delivered in connection herewith (herein,
"Amendment Documents"), and to incur any obligations provided for in this
Amendment and any Amendment Documents, all of which have been duly authorized
and approved in accordance with its corporate documents; (b) it has obtained
all consents or approvals from any Person necessary to permit it to enter into
and perform under the amendment Documents without its being in violation of any
material agreements with such Persons; (c) this Amendment, together with all
Amendment Documents, shall constitute, when executed, its valid and legally
binding obligations in accordance with their respective terms; (d) except with
respect to events or circumstances occurring subsequent to the date thereof and
known to the Agent and the Lenders, all representations and warranties made by
it in the Credit Agreement remain true
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and correct in all material respects as of the date hereof, with the same force
and effect as if all such representations and warranties were fully set forth
herein; (e) its obligations under the Credit Agreement and the other Loan
Documents remain valid and enforceable obligations, and the execution and
delivery of the Amendment and the other Amendment Documents shall not be
construed as a novation of the Credit Agreement or any of the other Loan
Documents; (f) as of the date hereof, it has no knowledge of any offsets,
counterclaims or defenses existing in its favor in respect of the payment of
any of the Obligations; and (g) as of the date hereof, after giving effect
hereto, it has no knowledge that any Default or Event of Default exists; and
(h) it owns no Domestic Subsidiaries which are not Loan Parties. Each Loan
Party further relieves and releases Wachovia, as Agent and sole Lender, and
Wachovia's directors, officers, agents and other representatives, from any
liability for any action taken (or omitted to be taken) by any thereof in
respect of, pursuant to, or in connection with, this Amendment, the Credit
Agreement or any Loan Document.
7. Miscellaneous.
(a) Reference to Agreement and Note. This Amendment
shall become effective upon its execution and all other Amendment Documents (if
any) by all parties hereto and thereto. Upon the effectiveness of this
Amendment, each reference in the Credit Agreement to "this Agreement" and each
reference in the other Loan Documents to the Credit Agreement, shall mean and
be a reference to the Credit Agreement as amended hereby.
(b) Effect on Loan Documents. Except as specifically
amended above, the Credit Agreement and all other Loan Documents shall remain
in full force and effect and are hereby ratified and confirmed.
(c) No Waiver. The execution, delivery and effectiveness
of this Amendment shall not operate as a waiver of any right, power, or remedy
of the Agent or Lenders under any of the Loan Documents, nor constitute a
waiver of any provision of any of the Loan Documents, except as otherwise
expressly provided herein.
(d) Costs and Expenses. The Borrower agrees to pay on
demand all reasonable costs and expenses of the Agent in connection with the
preparation, reproduction, execution, and delivery of this Amendment and the
other instruments and documents to be delivered hereunder, including (A) the
costs and expenses incurred by the Agent in conducting and completing its field
audit, as contemplated in the First Amendment, and (B) the reasonable fees and
out-of-pocket expenses of counsel for the Agent with respect hereto. All such
fees and charges, if not paid promptly when due, may be charged directly as
Revolving Loans.
(e) No Novation. Nothing contained herein is intended,
or shall be construed, to constitute a novation of the Credit Agreement or any
Loan Document.
(f) Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of Georgia, without
giving effect to conflict of law provisions.
(g) Loan Document. This Amendment constitutes a Loan
Document.
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IN WITNESS WHEREOF, the undersigned have caused their duly
authorized officers to execute this Amendment as of the date first above
written.
"BORROWER"
O2 WIRELESS, INC.
f/k/a CLEAR COMMUNICATIONS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
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"CURRENT AFFILIATE GUARANTORS"
O2WIRELESS SOLUTIONS, INC.
f/k/a CLEAR HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
President, Chairman & CEO
O2 WIRELESS LIGHTING, INC.
f/k/a TWR LIGHTING, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
President & CEO
O2 WIRELESS SYSTEMS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
President & CEO
O2 WIRELESS SITE DEVELOPMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
President & CEO
O2 WIRELESS DEPLOYMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx
President & CEO
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YOUNG & ASSOCIATES, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
President & CEO
O2 WIRELESS NORTH CAROLINA, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
President & CEO
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"LENDERS" AND "AGENT"
WACHOVIA BANK, N.A., as
Agent and sole Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
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