EXHIBIT 4.3.2
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Third Amendment to Amended and Restated Credit Agreement (this
"Amendment" or the "Third Amendment"), dated as of March 22, 2002 (the
"Amendment Date"), but effective (unless otherwise expressly provided herein) as
of September 30, 2001 (the "Amendment Effective 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, Borrower and Wachovia, as sole Lender and Agent, have agreed
to make modifications to certain existing defined terms in the Credit Agreement,
and to evidence their agreement pursuant hereto; 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;
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 Lenders 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 Effective Date (except as otherwise set
forth hereinbelow):
(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)
Thirteen Million Dollars ($13,000,000); or (B) the Borrowing Base.
(ii) the "EBITDA" definition appearing in Section 10.1 shall be
changed, in part, by adding thereto, at the end thereof, the following,
retroactive to December 31, 2001:
Notwithstanding the foregoing, effective on December 31, 2001, there
shall be excluded from the calculation of EBITDA any write-off (or subsequent
collection of) any accounts receivable then owing by Adelphia Business Services.
(iii) the "Expiry Date" definition appearing in Section 10.1 shall be
changed, in its entirety, to read as follows:
"Expiry Date" means July 31, 2003.
2. Certain Representations And Warranties Of Loan Parties. Each Loan
Party represents and warrants to the Agent and Lenders as further inducements to
their 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
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(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 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 or defenses existing in its favor in respect of the
payment of any of the Obligations; and (g) as of the date hereof, it has no
knowledge that any Default or Event of Default exists; and (h) it owns no
Domestic Subsidiaries which are not Loan Parties.
3. 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.
(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.
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(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.
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.
Attest:: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------ ------------------------------------
Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, President and
Secretary Chief Executive Officer
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"CURRENT AFFILIATE GUARANTORS"
O2WIRELESS SOLUTIONS, INC. (SEAL)
f/k/a CLEAR HOLDINGS, INC.
Attest:: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------ ------------------------------------
Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, President and,
Secretary Chief Executive Officer
O2 WIRELESS LIGHTING, INC.
f/k/a TWR LIGHTING, INC.
Attest:: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------ ------------------------------------
Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, President and,
Secretary Chief Executive Officer
O2 WIRELESS SYSTEMS GROUP, INC.
Attest:: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------ ------------------------------------
Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, President and,
Secretary Chief Executive Officer
O2 WIRELESS SITE DEVELOPMENT, INC.
Attest:: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------ ------------------------------------
Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, President and,
Secretary Chief Executive Officer
O2 WIRELESS DEPLOYMENT, INC.
Attest:: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------ ------------------------------------
Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, President and,
Secretary Chief Executive Officer
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YOUNG & ASSOCIATES, INC.
Attest:: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------ ------------------------------------
Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, President and,
Secretary Chief Executive Officer
O2 WIRELESS NORTH CAROLINA, INC.
Attest:: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------ ------------------------------------
Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, President and,
Secretary Chief Executive Officer
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"LENDERS"
WACHOVIA BANK, N.A., as
Agent and Lender
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxx
-------------------------------
Title: Director
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