EXHIBIT 1
SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
THIS SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
FORBEARANCE Agreement (this "Agreement"), dated as of March 29, 2002, is by and
among NATG HOLDINGS, LLC, a Delaware limited liability company ("NATG" or the
"Borrower"), ORIUS CORP., a Florida corporation ("Holdings"), the financial
institutions party to the Credit Agreement (as defined below), in their
capacities as lenders (collectively, the "Lenders," and each individually, a
"Lender"), and Bankers Trust Company, as administrative agent (the "Agent") for
the Lenders.
W I T N E S S E T H :
WHEREAS, the Borrower, Holdings, the Lenders and the Agent are parties
to that certain Amended and Restated Credit Agreement dated as of July 5, 2000
(as heretofore and hereafter amended, restated, supplemented or otherwise
modified and in effect from time to time, the "Credit Agreement"), pursuant to
which the Lenders have provided to the Borrower credit facilities and other
financial accommodations;
WHEREAS, the Borrower has informed the Agent and the Lenders that the
Unmatured Events of Default and Events of Default described on Schedule I
attached hereto have occurred and/or will occur under the Credit Agreement
(collectively, the "Disclosed Defaults" and, individually, each a "Disclosed
Default"); and
WHEREAS, the Credit Parties have requested that the Lenders forbear
from exercising their rights under the Credit Agreement and the other Loan
Documents with respect to the Disclosed Defaults and the Lenders have agreed to
such request subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, and other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Defined Terms. Terms capitalized herein and not otherwise
defined herein are used with the meanings ascribed to such terms in the Credit
Agreement.
2. Amendments to Credit Agreement. The Credit Agreement is, as of
the Effective Date (as defined below), hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is amended by
inserting the following new defined terms in alphabetical order:
"Seventh Amendment" means that certain Seventh Amendment to
Amended and Restated Credit Agreement and Forbearance
Agreement dated as of March 29, 2002 among Holdings, the
Borrower, Agent and the Lenders.
"Seventh Amendment Effective Date" means the "Effective Date"
as defined in the Seventh Amendment.
(b) Section 1.1 of the Credit Agreement is further
amended by deleting the reference to "the Sixth Amendment to Amended and
Restated Credit Agreement and Forbearance Agreement dated as of February 26,
2002 among Holdings, Borrower, Agent and the Lenders" contained in the
definition of "Trigger Date" and inserting in lieu thereof a reference to "the
Seventh Amendment".
(c) Section 2.9(a)(i) of the Credit Agreement is amended
by deleting the first sentence of such Section and replacing it with the
following:
Subject to and upon the terms and conditions herein set forth
and such other conditions as are applicable to its customers
generally, BT agrees to issue, or cause one of its Affiliates
(including without limitation Deutsche Bank AG, New York
Branch), to issue in its own name (in such capacity, "Facing
Agent"), but for the ratable benefit of all Revolving Lenders
(including the Facing Agent) at any time and from time to time
on or after the Initial Borrowing Date and prior to the 30th
day preceding the Revolver Termination Date, one or more
Letters of Credit, each having a Stated Amount in Dollars and
each being issued at sight, for the account of Borrower in an
aggregate undrawn amount at any one time outstanding that
together with the aggregate Stated Amount of other Letters of
Credit then outstanding, does not exceed $30,000,000;
provided, however, that, prior to the Seventh Amendment
Effective Date, Facing Agent shall not be obligated to issue
any Letter of Credit if the aggregate LC Obligations at such
time would exceed $15,000,000 unless Borrower delivers cash in
an amount equal to such excess to Facing Agent to be held by
and deposited in an account in the name of Facing Agent as
cash collateral for the payment and performance of all LC
Obligations (it being acknowledged and agreed that Borrower
shall not be required to deliver cash collateral (i) to the
extent the aggregate amount of cash collateral then held by
the Facing Agent is at least equal to the amount of LC
Obligations in excess of $15,000,000 at such time or (ii)
after the Seventh Amendment Effective Date).
(d) Article VI of the Credit Agreement is amended by
inserting a new Section 6.26 at the conclusion of such Article VI to read as
follows:
Section 6.26. Deposit Accounts. Schedule 7.21 hereto sets
forth all Deposit Accounts (as defined in the Uniform
Commercial Code as in effect from time to time in the State of
New York) maintained by each Credit Party, which Schedule
shall list for each account: the account number, the financial
institution holding such account and the contact party and
contact information for inquiries regarding such account at
such financial institution.
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(e) Section 7.2 of the Credit Agreement is amended by
inserting a new Section 7.2(h) at the conclusion of such Section to read as
follows:
(h) Weekly Cash Flow Forecasts. As soon as
available and in any event within two (2) Business Days after
the end of each week after the Seventh Amendment Effective
Date, a cash flow forecast in form reasonably acceptable to
Agent that at a minimum includes (1) a four week historical
analysis of the sources and uses of cash during such period
and (2) a thirteen week cash flow forecast from the end of
such week.
(f) Article VII of the Credit Agreement is amended by
inserting a new Section 7.21 at the conclusion of such Article VII to read as
follows:
Section 7.21. Cash Management System.
(a) As soon as possible and in any event by no
later than April 15, 2002, and continuing for so long as any
of the Commitments remain in effect, or any Loan or LC
Obligation remains outstanding and unpaid or any other amount
is owing to any Lender or Agent under the Credit Agreement,
Holdings and Borrower shall, and shall cause each other Credit
Party to, (i) deposit or cause to be deposited promptly, and
in any event no later than the first Business Day after the
date of receipt thereof, all Cash, checks, drafts or other
similar items of payment into bank accounts in such Credit
Party's name (collectively, the "Credit Party Accounts") at
the banks set forth on Schedule 7.21 (each, a "Relationship
Bank") and (ii) deposit proceeds of Working Capital Loans made
to Borrower from time to time pursuant to the Credit Agreement
solely into the Credit Party Accounts.
(b) On or before the Effective Date, Borrower
shall have established a concentration account in its name
(the "Concentration Account") at the bank which shall be
designated as the Concentration Account bank for Borrower on
Schedule 7.21 (the "Concentration Account Bank") which bank
shall be satisfactory to Agent.
(c) As soon as possible and in any event by no
later than April 15, 2002, the Concentration Account Bank and
all other Relationship Banks, shall have entered into
tri-party blocked account agreements with the Collateral
Agent, for the benefit of itself and the other Secured
Creditors, and the appropriate Credit Party or Credit Parties,
in form and substance satisfactory to the Collateral Agent.
Each such blocked account agreement shall be in form and
substance satisfactory to the Collateral Agent and, without
limiting the foregoing, shall provide, among other things,
that (i) all items of payment deposited in a Credit Party
Account and proceeds thereof deposited in the Concentration
Account are held by such bank as agent or bailee-in-possession
for the Collateral Agent, on behalf of the Secured Creditors,
(ii) the bank executing such agreement
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has no rights of setoff or recoupment or any other claim
against such account, as the case may be, other than for
payment of its service fees and other charges directly related
to the administration of such account and for returned checks
and other items of payment, and (iii) after the occurrence of
an Event of Default (A) with respect to each bank at which a
Credit Party Account is located, such bank agrees to forward
immediately all amounts in each Credit Party Account to the
Concentration Account Bank and commence the process of daily
sweeps from such Credit Party Account into the Concentration
Account and (B) with respect to the Concentration Account
Bank, such bank agrees to immediately forward all amounts
received in the Concentration Account to an account designated
by the Collateral Agent (the "Collection Account") through
daily sweeps from such Concentration Account into the
Collection Account. Holdings shall not, and shall not permit
any Subsidiary thereof to, accumulate or maintain cash in
disbursement or payroll accounts as of any date of
determination in excess of checks estimated to be outstanding
against such accounts as of that date and amounts necessary to
meet minimum balance requirements.
(d) So long as no Unmatured Event of Default or
Event of Default has occurred, the Credit Parties may amend
Schedule 7.21 to add or replace a Relationship Bank or Credit
Party Account or to replace the Concentration Account;
provided, however, that (i) Agent shall have consented in
writing in advance to the opening of such account with the
relevant bank and (ii) prior to the time of the opening of
such account, the appropriate Credit Party and such bank shall
have executed and delivered to the Collateral Agent a
tri-party blocked account agreement in form and substance
satisfactory to the Collateral Agent. Holdings and Borrower
shall, and shall cause each other Credit Party to, close any
of its accounts (and establish replacement accounts in
accordance with the foregoing sentence) promptly and in any
event within fifteen (15) days of notice from Agent that the
operating performance, funds transfer and/or availability
procedures or performance with respect to accounts of a
Relationship Bank or the Collateral Agent's liability under
any tri-party blocked account agreement with such Relationship
Bank is no longer acceptable in the Collateral Agent's
reasonable judgment.
(e) The Credit Party Accounts and the
Concentration Account shall be cash collateral accounts, with
all cash, checks and other similar items of payment in such
accounts securing payment of the Loans and all other
Obligations, and in which the appropriate Credit Party shall
have granted a Lien to the Collateral Agent, pursuant to the
Security Documents. All amounts deposited in the Collection
Account shall be deemed received by Agent in accordance with
Section 7.4 of the Security Agreement. In no event shall any
amount be so applied unless and until such amount shall have
been credited in immediately available funds to the Collection
Account.
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(f) Holdings and Borrower shall, and shall cause
each Credit Party and each of its Affiliates, officers,
employees, agents, directors or other Persons acting for or in
concert with Holdings, Borrower or any other Credit Party
(each a "Related Person") to (i) hold in trust for the
Collateral Agent, all checks, cash and other items of payment
received by any Credit Party or any such Related Person, and
(ii) within three Business Days after receipt by any Credit
Party or such Related Person, of any cash, checks or other
items of payment, deposit the same into a Credit Party
Account. Each Credit Party acknowledges and agrees that all
cash, checks or items of payment constituting proceeds of
Collateral are the property of the Secured Creditors.
(g) Upon the occurrence of any Unmatured Event
of Default or Event of Default after the Effective Date and on
each anniversary thereof, Borrower agrees to pay to the
Collateral Agent, as annual non-refundable cash monitoring fee
in an amount equal to $50,000.
(g) Section 8.19 of the Credit Agreement is amended by
amending and restating such Section in its entirety as follows:
Section 8.19. Deposit Accounts. Holdings will not, and will
not permit any other Credit Party to, (i) transfer funds from
any Deposit Account (as defined in the Uniform Commercial Code
as in effect from time to time in the State of New York) in
which such funds are held on the Seventh Amendment Effective
Date into any other Deposit Account (as defined in the Uniform
Commercial Code as in effect from time to time in the State of
New York) unless such Deposit Account is subject to a blocked
account agreement as described in Section 7.21(c) or (ii) open
or establish any Deposit Account (as defined in the Uniform
Commercial Code as in effect from time to time in the State of
New York) except in compliance with Section 7.21(d).
(h) Section 10.1(c) of the Credit Agreement is amended by
amending and restating such Section in its entirety as follows:
(c) Covenants. Holdings or Borrower shall (i)
default in the performance or observance of any term,
covenant, condition or agreement on its part to be performed
or observed under Section 7.19, Section 7.21, Article VIII or
Article IX hereof, (ii) default in the performance or
observance of any term, covenant, condition or agreement on
its part to be performed or observed under Sections 7.2(h),
7.3, 7.6, 7.8, 7.9, 7.10, 7.12 or 7.17 and such default shall
remain unremedied for a period of five (5) Business Days or
(iii) default in the due performance or observance by it of
any other term, covenant or agreement contained in this
Agreement and such default shall continue unremedied for a
period of thirty (30) days after written notice to Borrower by
Agent or any Lender.
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(i) Article XII of the Credit Agreement is amended by
inserting a new Section 12.19 at the conclusion thereof to read as follows:
Section 12.19. Priming Lien for Certain LC Obligations.
Notwithstanding anything to the contrary contained in the
Credit Agreement, the Security Documents or any other Loan
Document, Holdings, the Borrower, Agent and the Lenders agree
that all moneys collected by the Collateral Agent (and the
Pledgee or Mortgagee of any Security Document if such Pledgee
or Mortgagee is not the Collateral Agent) upon any sale or
disposition of any Collateral shall be applied to LC
Obligations with respect to Letters of Credit issued on or
after the Seventh Amendment Effective Date (the "Priming LCs")
until such LC Obligations with respect to Priming LCs have
been paid in full or cash collateralized in full prior to any
such moneys being applied to any other Obligations (other than
amounts owing the Collateral Agent or Agent of the types
described in clauses (iii) and (iv) of the definition of
"Obligations").
3. Forbearance. (a) During the Forbearance Period (as defined
below), the Agent, the Collateral Agent, the Facing Agent and the Lenders will
not exercise any of their rights or remedies (including, without limitation,
under Section 7.21 of the Credit Agreement and the documents executed pursuant
thereto) under the Credit Agreement, the Loan Documents or applicable law with
respect to the Disclosed Defaults other than delivery of a Payment Blockage
Notice, as defined in and pursuant to the terms and conditions of, the Senior
Subordinated Note Indenture, and the enforcement of any rights with respect to
such Payment Blockage Notice and any other actions reasonably related to the
enforcement of such rights. For purposes of this Agreement, "Forbearance Period"
means the period commencing on the Effective Date and terminating on the earlier
of (i) April 30, 2002; (ii) the occurrence of an Additional Default (as defined
below) under the Credit Agreement; (iii) any payment is made by Borrower or any
Credit Party under or in respect to the Senior Subordinated Note Indenture, the
Senior Subordinated Notes, or any other Senior Subordinated Document, or the
Trustee or any Holder (as such terms are defined in the Senior Subordinated Note
Indenture) exercises any rights or remedies under the Senior Subordinated
Documents or under applicable law; (iv) notification by Agent to Borrower in
writing that the Required Lenders have elected to terminate the Forbearance
Period following an acceleration of the indebtedness evidenced by the Senior
Subordinated Documents; (v) any representation or warranty made by any of the
Credit Parties under this Agreement or any agreement, instrument or other
document executed or delivered by any of the Credit Parties in connection with
this Agreement is incorrect or misleading in any material respect when made or
deemed made; and (vi) the occurrence of (or the Lenders' awareness of any facts
or conditions previously unknown with respect to) any adverse change which has,
or is reasonably likely to have, a material adverse effect on (A) the business,
financial condition, assets, liabilities, prospects or results of operations of
Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit
Party to perform its respective obligations under any Loan Document to which it
is a party, or (C) the validity or enforceability (other than in accordance with
its terms) of the Credit Agreement or any of the Loan Documents or the rights or
remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders
thereunder. The forbearance provisions set forth in this Section 3(a) shall, as
of the Effective Date, supersede in their entirety the forbearance provisions
set forth in Section 3(a) of the Sixth Amendment to
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Amended and Restated Credit Agreement and Forbearance Agreement dated as of
February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by
the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings,
Borrower, Agent and the Lenders.
(b) Upon the termination of the Forbearance Period as
provided above, the Agent, the Lenders, the Collateral Agent and the Facing
Agent shall be fully entitled to exercise any rights or remedies they may have
under the Credit Agreement, the Loan Documents or applicable law. Nothing herein
shall limit or restrict in any way the rights and remedies of the Agent, any
Lender, the Collateral Agent or the Facing Agent with respect to any Unmatured
Event of Default or Event of Default other than a Disclosed Default
(collectively, the "Additional Defaults" and, individually, each an "Additional
Default").
(c) Provided that no Additional Default has occurred, the
Agent, the Lenders and the Facing Agent hereby acknowledge that during the
Forbearance Period the Revolving Lenders shall continue to make Revolving Loans
that are Base Rate Loans and the Facing Agent shall continue to issue Letters of
Credit under, and pursuant to the terms and conditions of, the Credit Agreement
notwithstanding the existence of the Disclosed Defaults and the inability to
satisfy the conditions precedent set forth in Section 5.2 of the Credit
Agreement due solely to the Disclosed Defaults (it being understood that the
existence of the Disclosed Defaults may be excepted from any Notice of Borrowing
or Letter of Credit Request).
(d) THE BORROWER AND HOLDINGS EXPRESSLY ACKNOWLEDGE AND
AGREE THAT THE FORBEARANCE PROVISION SET FORTH IN THIS SECTION 3 IS EFFECTIVE
ONLY DURING THE FORBEARANCE PERIOD AND THAT, AFTER THE TERMINATION OF THE
FORBEARANCE PERIOD, THE CREDIT AGREEMENT WILL BE IN MATERIAL DEFAULT AND THE
AGENT, THE LENDERS, THE COLLATERAL AGENT AND THE FACING AGENT WILL BE FULLY
ENTITLED IMMEDIATELY TO EXERCISE THEIR RIGHTS AND REMEDIES UNDER THE CREDIT
AGREEMENT, THE LOAN DOCUMENTS OR APPLICABLE LAW WITHOUT REGARD TO ANY MATTERS
TRANSPIRING DURING THE FORBEARANCE PERIOD OR THE FINANCIAL CONDITION OR
PROSPECTS OF HOLDINGS, THE BORROWER AND THEIR RESPECTIVE SUBSIDIARIES. THE
BORROWER AND HOLDINGS UNDERSTAND THAT THE AGENT AND THE LENDERS ARE EXPRESSLY
RELYING ON THE TERMS OF THIS SECTION 3 AND WOULD NOT HAVE ENTERED INTO THIS
AGREEMENT BUT FOR THE BORROWER'S AND HOLDINGS' ACKNOWLEDGMENT AND AGREEMENT IN
THIS SECTION 3.
4. No Waiver. Nothing in this Agreement shall in any way be
deemed to be (i) a waiver of any Unmatured Event of Default or Event of Default,
including a Disclosed Default, or (ii) an agreement to forbear from exercising
any rights or remedies with respect to any Unmatured Event of Default or Event
of Default except as specifically set forth in Section 3 hereof.
5. Representations and Warranties. In order to induce the Agent
and the Lenders to enter into this Agreement, each of the Borrower and Holdings
hereby represents and warrants to the Agent and the Lenders, in each case after
giving effect to this Agreement, as follows:
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(a) Each of the Borrower and Holdings has the right,
power and capacity and has been duly authorized and empowered by all requisite
corporate or limited liability company and shareholder or member action to enter
into, execute, deliver and perform this Agreement and all agreements, documents
and instruments executed and delivered pursuant to this Agreement.
(b) This Agreement constitutes each of the Borrower's and
Holdings' legal, valid and binding obligation, enforceable against it, except as
enforcement thereof may be subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law or otherwise).
(c) Except for any representation or warranty relating to
any Disclosed Default, the representations and warranties contained in the
Credit Agreement and the other Loan Documents are true and correct in all
material respects at and as of the Effective Date as though made on and as of
the Effective Date (except to the extent specifically made with regard to a
particular date, in which case such representation and warranty is true and
correct in all material respects as of such earlier date).
(d) Each of the Borrower's and Holdings' execution,
delivery and performance of this Agreement do not and will not violate its
Articles or Certificate of Incorporation, By-laws or other Organizational
Documents, any law, rule, regulation, order, writ, judgment, decree or award
applicable to it or any contractual provision to which it is a party or to which
it or any of its property is subject.
(e) No authorization or approval or other action by, and
no notice to or filing or registration with, any governmental authority or
regulatory body (other than those which have been obtained and are in force and
effect) is required in connection with the execution, delivery and performance
by the Borrower, Holdings or any other Credit Party of this Agreement and all
agreements, documents and instruments executed and delivered pursuant to this
Agreement.
(f) Except for the Disclosed Defaults, no Event of
Default or Unmatured Event of Default exists under the Credit Agreement.
6. Conditions to Effectiveness of Agreement. This Agreement shall
become effective as on the date (the "Effective Date") each of the following
conditions precedent is satisfied:
(a) Execution and Delivery of Amendment. The Borrower,
Holdings, the Agent and the Required Lenders shall have executed and delivered
this Agreement.
(b) Execution and Delivery of Loan Documents. The Agent
shall have received each of the following documents, all of which shall be
satisfactory in form and substance to the Agent and its counsel:
(1) a certificate of an officer of Holdings and the
Borrower in the form of Exhibit A attached hereto, duly executed and
delivered by Holdings and the Borrower; and
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(2) a Reaffirmation of Guaranty in the form of Exhibit B
attached hereto, duly executed and delivered by Holdings and the
Subsidiary Guarantors.
(c) No Defaults. Except for the Disclosed Defaults, no
Event of Default or Unmatured Event of Default under the Credit Agreement shall
have occurred and be continuing.
(d) Representations and Warranties. Except for any
representation or warranty relating to any Disclosed Default, after giving
effect to this Agreement, the representations and warranties of the Borrower,
Holdings and the other Credit Parties contained in this Agreement, the Credit
Agreement and the other Loan Documents shall be true and correct in all material
respects as of the Effective Date, with the same effect as though made on such
date, except to the extent that any such representation or warranty relates to
an earlier date, in which case such representation or warranty shall be true and
correct in all material respects as of such earlier date.
(e) Fees. Borrower shall have paid all reasonable costs,
fees and expenses (including, without limitation, reasonable legal fees and
expenses of Winston & Xxxxxx and the costs, fees and expenses referred to in
Section 7(a) hereof and Section 12.4 of the Credit Agreement) of the Agent.
(f) Other Matters. Agent shall have received such other
instruments and documents as Agent or the Required Lenders may reasonably
request in connection with the execution of this Agreement, and all such
instruments and documents shall be reasonably satisfactory in form and substance
to Agent.
7. Miscellaneous. The parties hereto hereby further agree as
follows:
(a) Costs, Expenses and Taxes. The Borrower hereby agrees
to pay all reasonable fees, costs and expenses of the Agent incurred in
connection with the negotiation, preparation and execution of this Agreement and
the transactions contemplated hereby, including, without limitation, the
reasonable fees and expenses of Winston & Xxxxxx, counsel to the Agent.
(b) Counterparts. This Agreement may be executed in one
or more counterparts, each of which, when executed and delivered, shall be
deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same document with the same force and effect as if
the signatures of all of the parties were on a single counterpart, and it shall
not be necessary in making proof of this Agreement to produce more than one (1)
such counterpart.
(c) Headings. Headings used in this Agreement are for
convenience of reference only and shall not affect the construction of this
Agreement.
(d) Integration. This Agreement, the other agreements and
documents executed and delivered pursuant to this Agreement and the Credit
Agreement constitute the entire agreement among the parties hereto with respect
to the subject matter hereof.
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(e) Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS AND DECISIONS OF SAID STATE,
INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW BUT
EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAWS RULES.
(f) Binding Effect. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the Borrower, Holdings, the
Agent and the Lenders and their respective successors and assigns. Except as
expressly set forth to the contrary herein, this Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
Borrower, Holdings, the Agent and the Lenders and their respective successors
and permitted assigns.
(g) Amendment; Waiver. The parties hereto agree and
acknowledge that nothing contained in this Agreement in any manner or respect
limits or terminates any of the provisions of the Credit Agreement or any of the
other Loan Documents other than as expressly set forth herein and further agree
and acknowledge that the Credit Agreement (as amended hereby) and each of the
other Loan Documents remain and continue in full force and effect and are hereby
ratified and confirmed. Except to the extent expressly set forth herein, the
execution, delivery and effectiveness of this Agreement shall not operate as an
amendment of any rights, power or remedy of the Lenders or the Agent under the
Credit Agreement or any other Loan Document, nor constitute an amendment of any
provision of the Credit Agreement or any other Loan Document. No delay on the
part of any Lender or the Agent in exercising any of their respective rights,
remedies, powers and privileges under the Credit Agreement or any of the Loan
Documents or partial or single exercise thereof, shall constitute an amendment
thereof. On and after the Effective Date each reference in the Credit Agreement
to "this Agreement," "hereunder," "hereof," "herein" or words of like import,
and each reference to the Credit Agreement in the Loan Documents and all other
documents delivered in connection with the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended hereby. The Borrower and Holdings
acknowledge and agree that this Agreement constitutes a "Loan Document" for
purposes of the Credit Agreement, including, without limitation, Section 10.1 of
the Credit Agreement. None of the terms and conditions of this Agreement may be
changed, waived, modified or varied in any manner, whatsoever, except in
accordance with Section 12.1 of the Credit Agreement.
(h) Tolling. Any and all statutes of limitations, repose
or similar legal constraints on the time by which a claim must be filed, a
person given notice thereof, or asserted, that expire, run or lapse during the
Forbearance Period on any claims that any Lender may have against the Credit
Parties or any other persons relating to any Credit Party (collectively, the
"Forbearance Period Statutes of Limitation") will be tolled during the
Forbearance Period. The Credit Parties waive any defense they may have against
the Lenders under the Forbearance Period Statutes of Limitation, applicable law
or otherwise solely as to the expiration, running or lapsing of the Forbearance
Period Statutes of Limitation during the Forbearance Period.
(i) Release. Each of the Borrower and Holdings hereby
knowingly and voluntarily releases and forever discharges the Agent, the
Collateral Agent, the Facing Agent and
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the Lenders and all present and former directors, officers, agents,
representatives, employees, successors and assigns of the Agent, the Collateral
Agent, the Facing Agent and each Lender and their direct and indirect owners
(collectively, the "Released Parties") from any and all claims, controversies,
actions, causes of action, cross-claims, counter-claims, demands, debts,
compensatory damages, liquidated damages, punitive or exemplary damages, other
damages, claims for costs and attorneys' fees, or liabilities of any nature
whatsoever in law and in equity, both past and present and whether known or
unknown, suspected, or claimed against any Released Party which Holdings, the
Borrower or any of their respective Affiliates or Subsidiaries may have as of
the date of this Agreement.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
ORIUS CORP.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: President and CEO
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NATG HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: President and CEO
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BANKERS TRUST COMPANY,
individually and as Agent
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Managing Director
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BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Principal
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FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx X. Xxxxxx
-----------------------------------
Title: Director
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UNION PLANTERS BANK NA
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
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WACHOVIA BANK, N.A.
By: /s/ Xxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx X. Xxxxxx
-----------------------------------
Title: Director
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XXXXXX FINANCIAL, INC.
By: /s/ Xxx Xxxxxx
-------------------------------------
Name: Xxx Xxxxxx
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Title: Senior Vice President
----------------------------------
PPM SPYGLASS FUNDING TRUST
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
WINGED FOOT FUNDING TRUST
By: /s/ Xxx X. Xxxxxx
-------------------------------------
Name: Xxx X. Xxxxxx
-----------------------------------
Title: Authorized Agent
----------------------------------
LIBERTY-XXXXX XXX ADVISOR FLOATING
RATE ADVANTAGE FUND
By: Xxxxx Xxx & Farnham Incorporated,
As Advisor
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Sr. VP & Portofolio Manager
----------------------------------
SRF TRADING, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------------------
Name: Xxx X. Xxxxxx
------------------------------------
Title: Asst. Vice President
----------------------------------
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
----------------------------------
Title: Senior Vice President
----------------------------------
Xxxxx Xxx & Farnham Incorporated,
As Advisor to the Xxxxx Xxx
Floating Rate Limited Liability
Company
Xxxxx Xxx & Farnham Incorporated
as Agent for KEYPORT LIFE INSURANCE
COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Sr. VP & Portofolio Manager
------------------------------
XXXXX XXX & XXXXXXX CLO I LTD.
By: Xxxxx Xxx & Farnham Incorporated
as Portfolio Manager
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Sr. VP & Portofolio Manager
----------------------------------
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: RBC Leveraged Capital as Portfolio
Advisor
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
-----------------------------------
Title: Director
----------------------------------
CARLYLE HIGH YIELD FUND, L.P.
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
-----------------------------------
Title: Principal
----------------------------------
CARLYLE HIGH YIELD PARTNERS II, LTD.
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
-----------------------------------
Title: Principal
----------------------------------
MAPLEWOOD (CAYMAN) LIMITED
By: Xxxxx X. Xxxxxx & Company Inc.
under delegated authority from
Massachusetts Mutual Life Insurance
Company as Investment Manager
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: Xxxxx X. Xxxxxx & Company Inc.
as Investment Advisor
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
PERSEUS CDO, I LIMITED
By: Massachusetts Mutual Life Insurance
Company as Portfolio Manager
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Second VP & Assoc. GC
----------------------------------
SAAR HOLDINGS CDO LIMITED
By: Massachusetts Mutual Life Insurance
Company as Collateral Manager
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Second VP & Assoc. GC
----------------------------------
SIMSBURY CLO, LIMITED
By: Xxxxx X. Xxxxxx & Company Inc.
under delegated authority from
Massachusetts Mutual Life Insurance
Company as Investment Manager
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
SUFFIELD CLO LTD
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
FIRST DOMINION FUNDING II
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Authorized Signatory
----------------------------------
FIRST DOMINION FUNDING III
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Authorized Signatory
----------------------------------
KATONAH I, LTD.
By: /s/ Xxxxx Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx Xxxxx
-----------------------------------
Title: Authorized Officer
----------------------------------
KATONAH II, LTD.
By: /s/ Xxxxx Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx Xxxxx
-----------------------------------
Title: Authorized Officer
---------------------------------
KZH CNC LLC
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
-----------------------------------
Title: Authorized Agent
----------------------------------
KZH STERLING LLC
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
-----------------------------------
Title: Authorized Agent
----------------------------------
GREAT POINT CLO 1999-1 LTD.,
as Term Lender
By: Sankaty Advisors, Inc., as
Collateral Manager
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
-----------------------------------
Title: Senior Vice President
----------------------------------
SANKATY HIGH YIELD PARTNERS II, L.P.
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
-----------------------------------
Title: Senior Vice President
----------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------
Title: Its Duly Authorized Signatory
----------------------------------
SCHEDULE I
DISCLOSED DEFAULTS
1. The failure to comply with Sections 9.2, 9.3 and 9.4 of the Credit
Agreement for the Test Periods ending September 30, 2001 and December
31, 2001 and March 31, 2002.
2. Any Event of Default or Unmatured Event of Default resulting from any
breach of the representation and warranty set forth in the last
sentence of Section 6.5(a) of the Credit Agreement based upon the
financial statements of Holdings delivered to the Lenders prior to the
Effective Date for the months of July, August, September, October and
November 2001, the projections delivered to the Agent on September 21,
2001 and other written information delivered to the Agent and
distributed by the Agent to the Lenders prior to the Effective Date.
3. An Unmatured Event of Default or Event of Default under Section 10.1(g)
of the Credit Agreement or any breach of Section 7.4 of the Credit
Agreement resulting from the Borrower's failure to make the payment of
interest under the Senior Subordinated Notes due on February 1, 2002.
4. The failure, prior to January 15, 2002, to deliver copies of all Form
8-Ks within 10 days after filing with the SEC in accordance with
Section 7.2(f) of the Credit Agreement.
5. The failure, prior to January 15, 2002, to notify Agent prior to
opening new Deposit Accounts in accordance with Section 8.19 of the
Credit Agreement.
6. An Event of Default under Section 10.1(n) of the Credit Agreement due
to the failure by WSP III to satisfy its obligations under Section
2(ii) of the Equity Call Agreement to make a $15,000,000 Capital
Infusion pursuant to the February 22, 2002 "Borrower Request" under
Section 2 of the Equity Call Agreement and the resulting failure by
Holdings to make a similar capital contribution in the Borrower.
7. Any Event of Default under Section 10.1(a)(i) of the Credit Agreement
due to the failure of the Borrower to make the scheduled principal
payments due March 31, 2002.
8. An Event of Default resulting from the pledge of in excess of
$3,000,000 in cash to secure a bond line with Acstar in contravention
of Section 8.1 of the Credit Agreement; provided, that such cash is
returned to the Borrower by not later than Tuesday, April 9, 2002.
9. Any Event of Default or Unmatured Event of Default resulting from the
breach of any representation and warranty related to any of the
Disclosed Defaults set forth in items 1-8 above.
EXHIBIT A
CERTIFICATE OF OFFICER
I, the undersigned, Chief Executive Officer of NATG Holdings,
LLC, a Delaware limited liability company (the "Borrower"), and Orius Corp., a
Florida corporation ("Holdings"), in accordance with Section 6(b) of that
certain Seventh Amendment to Amended and Restated Credit Agreement and
Forbearance Agreement dated as of March 29, 2002 (the "Agreement") among
Holdings, the Borrower, Bankers Trust Company, as Agent, and the financial
institutions party to the Credit Agreement (as defined in the Agreement), do
hereby certify on behalf of the Borrower and Holdings and not in my individual
capacity, the following:
1. The representations and warranties set forth in
Section 5 of the Agreement are true and correct in all
material respects as of the date hereof except to the extent
such representations and warranties are expressly made as of a
specified date in which event such representations and
warranties were true and correct in all material respects as
of such specified date;
2. Except for the Disclosed Defaults, no Event of
Default or Unmatured Event of Default has occurred and is
continuing after giving effect to the Agreement; and
3. The conditions of Section 6 of the Agreement have
been fully satisfied.
Unless otherwise defined herein, capitalized terms used herein
shall have the meanings set forth in the Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered on behalf of the Borrower and Holdings this Certificate of Officer on
this 29th day of March, 2002.
ORIUS CORP. NATG HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: President and CEO Title: President and CEO
------------------------------ ------------------------------
EXHIBIT B
REAFFIRMATION OF GUARANTEE
Each of the undersigned acknowledges receipt of a copy of the Seventh
Amendment to Amended and Restated Credit Agreement and Forbearance Agreement
(the "Agreement"; capitalized terms used herein shall, unless otherwise defined
herein, have the meanings provided in the Agreement) dated as of March 29, 2002,
by and among Orius Corp., a Florida corporation, NATG Holdings, LLC, a Delaware
limited liability company, Bankers Trust Company, as administrative agent, and
the financial institutions party to the Credit Agreement (as defined in the
Agreement) as Lenders, consents to such Agreement and each of the transactions
referenced in the Agreement and hereby reaffirms its obligations under the
Holdings Guaranty or Subsidiary Guaranty, as applicable.
Dated as of March 29, 2002.
ORIUS CORP.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------
Title: President and CEO
------------------------------
CATV SUBSCRIBER SERVICES, INC. CABLEMASTERS CORP.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
CHANNEL COMMUNICATIONS, INC. EXCEL CABLE CONSTRUCTION, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
DAS-CO OF IDAHO, INC. ORIUS INFORMATION TECHNOLOGIES, LLC
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
U.S. CABLE, INC. NETWORK CABLING SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
COPENHAGEN UTILITIES & CONSTRUCTION, INC. XXXXXX UNDERGROUND CABLE, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
TEXEL CORPORATION FENIX TELECOMMUNICATIONS SERVICES,
INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
FENIX TELECOM SERVICES LIMITED FENIX HOLDINGS, INC.
PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
XXXXX TELECOM SERVICES, X.X. XXXXX TELECOM HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
XXXXX TELECOM SERVICES, INC. MIDWEST SPLICING & ACTIVATION, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
HATTECH, INC. ORIUS CAPITAL CORP.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
LISN COMPANY LISN, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
ARION SUB, INC. NETWORK CABLING HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
NETWORK COMPREHENSIVE TELECOM, L.P. QMW COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
ORIUS TELECOM SERVICES, INC. ORIUS HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
ORIUS CENTRAL OFFICE SERVICES, INC. ORIUS TELECOMMUNICATION SERVICES,
INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
ORIUS INTEGRATED PREMISE SERVICES, INC. ORIUS TELECOM PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
ORIUS TELECOMMUNICATION SERVICES ORIUS TELECOMMUNICATION HOLDINGS
(WI), LP (WI), INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Director Title: Director
------------------------------ ------------------------------
ORIUS TELECOMMUNICATION SERVICES
(WI), INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------
Title: Director
------------------------------
