EXHIBIT 4.3.3
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Fourth Amendment to Amended and Restated Credit
Agreement (this "Amendment" or the "Fourth Amendment"), dated as of May 20,
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Date"), originally made among FUNB, Wachovia, Agent, Parent, Borrower, Telecom,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, an Event of Default currently exists, namely in
respect of Borrower's non-compliance with Section 4.2(F) of the Credit
Agreement for the Fiscal Quarter ending March 31, 2002 (the "Existing
Default"); and
WHEREAS, Wachovia, as sole Lender and Agent, has agreed to
waive the Existing Default, subject, however, to certain terms and conditions
hereinafter set forth; 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 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 $9,318,000, on the Amendment Date; $9,218,000, on June 20,
2002, and $9,118,000, on July 20, 2002, in conjunction with mandatory
reductions in the Revolving Loans outstanding of not less than
$350,000, $100,000, and $100,000 being required to be made,
respectively, on each of the aforesaid dates, 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 August 15, 2002.
2
2. No More Loans. From and after the Amendment Date, the
Revolving Loan Commitment shall terminate, and no more Revolving Loans or
Letters of Credit shall be made available to Borrower.
3. EDITDA. Effective retroactive to Xxxxx 00, 0000, Xxxxxxxx, as
sole Lender and Agent, hereby waives the Existing Default; and Lender further
agrees, in connection therewith, to suspend Borrower's compliance with Section
4.2(F) of the Credit Agreement for the Fiscal Quarter ending June 30, 2002, so
long as and provided that Borrower's EBITDA for such Fiscal Quarter is at least
One Dollar ($1.00).
4. 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 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.
5. 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.
3
(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.
(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.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
4
"CURRENT AFFILIATE GUARANTORS"
O2WIRELESS SOLUTIONS, INC. (SEAL)
f/k/a CLEAR HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President, Chairman & CEO
O2 WIRELESS LIGHTING, INC.
f/k/a TWR LIGHTING, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
O2 WIRELESS SYSTEMS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
O2 WIRELESS SITE DEVELOPMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
O2 WIRELESS DEPLOYMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
5
YOUNG & ASSOCIATES, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
O2 WIRELESS NORTH CAROLINA, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
6
"LENDERS"
WACHOVIA BANK, N.A., as
Agent and sole Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
7
