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EXHIBIT 1
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO Amended and Restated Credit Agreement (this
"AGREEMENT"), dated as of July 27, 2001, 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;
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. SUPERSESSION OF SECOND AMENDMENT AND WAIVER. SECTION 2 of the Second
Amendment and Waiver to Amended and Restated Credit Agreement dated as of July
13, 2001 by and among the Borrower, Holdings, the Lenders and the Agent is, as
of the Effective Date (as defined below), hereby superseded in its entirety by
this Agreement and shall be of no further force and effect.
3. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is, as of the
Effective Date, or such later date as expressly set forth below, hereby amended
as follows:
(a) SECTION 1.1 of the Credit Agreement is amended by
inserting the following new definitions in the appropriate alphabetical order:
""EQUITY CALL AGREEMENT" means that certain Equity Call
Agreement by and among Holdings, Borrower, WSPIII and Agent dated as of the
Third Amendment Effective Date, as amended, restated, supplemented or otherwise
modified from time to time.
"MONTHLY PAYMENT DATE" means, subject to SECTION 4.6, the
fifteenth (15th) day of each month, commencing August 15, 2001.
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"THIRD AMENDMENT" shall mean that certain Third Amendment to
Amended and Restated Credit Agreement entered into July 27, 2001, by and among
Borrower, Holdings, Lenders and Agent.
"THIRD AMENDMENT EFFECTIVE DATE" shall mean the Effective Date
as defined in the Third Amendment.
"WSP EQUITY INFUSION" has the meaning set forth in SECTION
8(J) of the Third Amendment.
"WSPIII" means, collectively, Xxxxxx Xxxxx & Partners III,
L.P., a Delaware limited partnership, Xxxxxx Xxxxx & Partners Dutch III-A, L.P.,
a Delaware limited partnership, Xxxxxx Xxxxx & Partners Dutch III-B, L.P., a
Delaware limited partnership, and Xxxxxx Xxxxx & Partners III-C, L.P., a
Delaware limited partnership."
(b) SECTION 1.1 of the Credit Agreement is further amended by
amending and restating the following definitions in their entirety as follows:
""ACQUISITION REVOLVER CONVERSION DATE" shall mean the Third
Amendment Effective Date.
"APPLICABLE BASE RATE MARGIN" means at any date, with respect
to Acquisition Loans, Revolving Loans, Term A Loans, Term B Loans, and Term C
Loans, the applicable percentage set forth in the following table under the
column Applicable Base Rate Margin opposite the Most Recent Ratio of Total Debt
to EBITDA as of such date:
=====================================================================================================================
Applicable Base Rate Margin Applicable Base Applicable Base
for Rate Margin Rate Margin
Most Recent Ratio of Total Debt Acquisition Loans, Revolving Loans for For
to EBITDA and Term A Loans Term B Loans Term C Loans
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Less than 3.25 to 1.00 2.25% 2.75% 3.00%
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Equal to or greater than 3.25 2.50% 3.00% 3.25%
to 1.00 but less than 4.25 to
1.00
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Greater than or equal to 4.25 2.75% 3.25% 3.50%
to 1.00
=====================================================================================================================
"APPLICABLE COMMITMENT FEE PERCENTAGE" means at any date,
0.75%.
"APPLICABLE EURODOLLAR RATE MARGIN" means at any date, with
respect to Acquisition Loans, Revolving Loans, Term A Loans, Term B Loans, and
Term C Loans, the applicable percentage set forth in the following table under
the column Applicable Eurodollar Rate Margin opposite the Most Recent Ratio of
Total Debt to EBITDA as of such date:
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=====================================================================================================================
Applicable Base Rate Margin Applicable Eurodollar Applicable Eurodollar
for Rate Margin Rate Margin
Most Recent Ratio of Total Debt Acquisition Loans, Revolving Loans for For
to EBITDA and Term A Loans Term B Loans Term C Loans
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Less than 3.25 to 1.00 3.25% 3.75% 4.00%
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Equal to or greater than 3.25 3.50% 4.00% 4.25%
to 1.00 but less than 4.25 to
1.00
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Greater than or equal to 4.25 3.75% 4.25% 4.50%
to 1.00
=====================================================================================================================
"PERMITTED ACQUISITION" means an acquisition permitted
pursuant to SECTION 8.4(K) as in effect prior to giving effect to the Third
Amendment and consummated prior to July 5, 2001.
"REVOLVING COMMITMENT" means, with respect to any Lender, the
obligation of such Lender to make Revolving Loans and to participate in Letters
of Credit (other than Rollover Letters of Credit), as such commitment may be
reduced from time to time pursuant to this Agreement, which commitment as of the
date hereof is the amount set forth opposite such lender's name on SCHEDULE
1.1(A) hereto under the caption "Amount of Revolving Commitment" as the same may
be adjusted from time to time pursuant to the terms hereof and "REVOLVING
COMMITMENTS" means such commitments collectively, which commitments equal
$49,246,638 in the aggregate as of the Third Amendment Effective Date.
"SECURITY DOCUMENTS" means, collectively, the Equity Call
Agreement, the Security Agreement, the Holdings Guaranty, the Subsidiary
Guaranty, the Pledge Agreement, the Mortgages, the Control Agreement, the
Perfection Certificates, the Collateral Assignment of Leases, and all other
agreements, assignments, security agreements, instruments and documents executed
in connection therewith, including, without limitation, all Additional Security
Documents, in each case as the same may at any time be amended, supplemented,
restated or otherwise modified and in effect. For purposes of this Agreement,
"Security Documents" shall also include all guaranties, security agreements,
mortgages, pledge agreements, collateral assignments, subordination agreements
and other collateral documents in the nature of any thereof entered into by any
Credit Party or any Subsidiary of any Credit Party after the date of this
Agreement in favor of Agent or Collateral Agent for the benefit of the Lenders
in satisfaction of the requirements of this Agreement.
"WORKING CAPITAL SUBLIMIT" means, at any time, $49,246,638."
(c) SECTION 1.1 of the Credit Agreement is further amended by
amending and restating the following definitions in their entirety as follows:
""CASH EQUIVALENTS" means (i) any evidence of any evidence of
indebtedness, maturing not more than thirty (30) days after the date of issue,
issued by the United States of America or any instrumentality or agency thereof,
the principal, interest and premium, if any, of which is guaranteed fully by, or
backed by the full faith and credit of, the United States of America, (ii)
Dollar denominated time deposits, certificates of deposit and bankers
acceptances maturing not more than thirty (30) days after the date of purchase,
issued by (x) any Lender or (y) a commercial banking institution having, or
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which is the principal banking subsidiary of a bank holding company having,
combined capital and surplus and undivided profits of not less than $200,000,000
and a commercial paper rating of "P-1" (or higher) according to Xxxxx'x, "A-1"
(or higher) according to S&P or the equivalent rating by any other nationally
recognized rating agency (any such bank, an "APPROVED BANK"), or (z) a
non-United States commercial banking institution which is either currently
ranked among the 100 largest banks in the world (by assets, according to the
AMERICAN BANKER), has combined capital and surplus and undivided profits of not
less than $500,000,000 or whose commercial paper (or the commercial paper of
such bank's holding company) has a rating of "P-1" (or higher) according to
Xxxxx'x, "A-1" (or higher) according to S&P or the equivalent rating by any
other nationally recognized rating agency, (iii) commercial paper, maturing not
more than thirty (30) days after the date of purchase, issued or guaranteed by a
corporation (other than Borrower or any Subsidiary of Borrower or any of their
respective Affiliates) organized and existing under the laws of any state within
the United States of America with a rating, at the time as of which any
determination thereof is to be made, of "P-1" (or higher) according to Xxxxx'x,
or "A-1" (or higher) according to S&P, (iv) demand deposits with any bank or
trust company maintained in the ordinary course of business, (v) repurchase or
reverse repurchase agreements covering obligations of the type specified in
clause (i) with a term of not more than seven (7) days with any Approved Bank
and (vi) shares of any money market mutual fund rated at least AAA or the
equivalent thereof by S&P or at least AAA or the equivalent thereof by Xxxxx'x,
including, without limitation, any such mutual fund managed or advised by any
Lender or Agent.
"INTEREST PAYMENT DATE" means (i) as to any Base Rate Loan,
each Monthly Payment Date to occur while such Loan is outstanding and (ii) as to
any Eurodollar Loan, each Monthly Payment Date to occur while such Loan is
outstanding and the last day of the Interest Period applicable thereto;
PROVIDED, HOWEVER, that, in addition to the foregoing, each of (A) the date upon
which the Revolving Commitments have been terminated, and the Loans have been
paid in full and (B) each of the Term A Loan Maturity Date, the Term B Loan
Maturity Date and the Term C Loan Maturity Date shall be deemed to be an
"Interest Payment Date" with respect to any interest which is then accrued
hereunder."
(d) SECTION 1.1 of the Credit Agreement is further amended by
amending and restating the second sentence of the definition of "Consolidated
EBITDA" in its entirety as follows:
"For purposes of computing Consolidated Net Income or
Consolidated Net Loss in determining Consolidated EBITDA of Holdings
and its Subsidiaries, there shall be excluded from the computation
thereof, without duplication and to the extent not otherwise excluded
from the computation thereof, (i) non-recurring fees and expenses
incurred in connection with the consummation of the Transactions (other
than the issuance of the Senior Subordinated Notes) in an aggregate
amount not to exceed $16,000,000, (ii) non-recurring fees and expenses
incurred in connection with the issuance of the Senior Subordinated
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Notes in an aggregate amount not to exceed $7,000,000 (iii)
non-recurring fees and expenses incurred in connection with the
consummation of any Permitted Acquisition in an aggregate amount not to
exceed five percent (5.0%) of the total Acquisition Consideration for
such Permitted Acquisition, (iv) non-cash charges not to exceed
$5,000,000 in the aggregate in the second fiscal quarter of 2001 in
connection with the consolidation of warehousing facilities,
termination of certain employees and one-time write downs of certain
inventory due to elimination of a turn-key contract and (v) non-cash
charges not to exceed $10,000,000 in the aggregate in the third and
fourth fiscal quarters of 2001 and/or the first fiscal quarter of 2002
in connection with the consolidation of existing facilities and
workforce reductions."
(e) SECTION 1.1 of the Credit Agreement is further amended by
deleting therefrom the definition of "Permitted Acquisition Capex Amount".
(f) The Credit Agreement is further amended by replacing each
reference therein to "Quarterly Payment Date" with a reference to "Monthly
Payment Date".
(g) SECTION 4.2(A) of the Credit Agreement is amended by
deleting the second sentence thereof in its entirety.
(h) SECTION 4.4(C) of the Credit Agreement is amended by
deleting such Section in its entirety and substituting the following therefor:
"(c) MANDATORY PREPAYMENT UPON ASSET DISPOSITION. On the first
Business Day after the date of receipt thereof by Holdings, Borrower
and/or any of their Subsidiaries of Net Sale Proceeds from any Asset
Disposition, an amount equal to 100% of the Net Sale Proceeds from such
Asset Disposition shall be applied as a mandatory repayment of
principal of the Loans as provided in SECTION 4.5, in each case subject
to modification of such application as set forth in SECTION 4.5(D),
PROVIDED, that with respect to no more than $2,500,000 in the aggregate
of such Net Sale Proceeds in any Fiscal Year of Holdings, the Net Sale
Proceeds therefrom shall not be required to be so applied on such date
to the extent that no Event of Default or Unmatured Event of Default
then exists at the time of receipt of such proceeds and (x) Borrower
delivers a certificate to Agent on or prior to such date stating that
such Net Sale Proceeds shall be used or contractually committed to be
used to purchase assets used or to be used in the businesses referred
to in SECTION 8.12 within 180 days following the date of such Asset
Disposition (which certificate shall set forth the estimates of the
proceeds to be so expended) and (y) such proceeds are deposited in an
escrow account with Agent for the benefit of the Secured Creditors,
from which escrow account amounts may be withdrawn only to repay the
Loans or to be used for the purposes described in clause (x) above;
PROVIDED, FURTHER, that (1) if all or any portion of such Net Sale
Proceeds not so applied to the repayment of Loans are not so used (or
contractually committed to be used) within such 180 day period, such
remaining portion shall be applied on the last day of such 180 day
period as a mandatory repayment of principal of outstanding Loans as
provided above in this SECTION 4.4(C) and (2) if all or any portion of
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such Net Sale Proceeds are not required to be applied on the 180th day
referred to above because such amount is contractually committed to be
used and subsequent to such date such contract is terminated or expires
without such portion being so used, then such remaining portion shall
be applied on the date of such termination or expiration as a mandatory
repayment of principal of outstanding Term Loans as provided in this
SECTION 4.4(C)."
(i) SECTION 4.4(D) of the Credit Agreement is amended by
deleting the reference to "50%" contained therein and substituting "100%"
therefor.
(j) SECTION 4.4(E) of the Credit Agreement is amended by
deleting such Section in its entirety and substituting the following therefor:
"(e) MANDATORY PAYMENT WITH PROCEEDS OF CAPITAL STOCK. On the
first Business Day after receipt thereof by Holdings and/or any of its
Subsidiaries after the Initial Borrowing Date, an amount equal to 100%
of the Net Offering Proceeds of the sale or issuance of Capital Stock
or Junior Subordinated Notes of (or cash capital contributions to)
Holdings or any of its Subsidiaries shall be applied as a mandatory
repayment of principal of the Term Loans as provided in SECTION 4.5 in
each case subject to modification of such application as set forth in
SECTION 4.5(D); PROVIDED, HOWEVER, that the following Net Offering
Proceeds shall not be required to be so applied: (i) equity
contributions permitted under SECTION 8.8 to any Subsidiary Guarantor
made by Borrower or any of its Subsidiaries; (ii) equity contributions
pursuant to the WSP Equity Infusion; (iii) equity contributions
pursuant to the Equity Call Agreement; (iv) Net Offering Proceeds
received as a result of any Capital Stock or Junior Subordinated Notes
issued to any existing shareholder (other than a director, officer, or
employee of Holdings or any of its subsidiaries) of Holdings as of the
Original Closing Date (and any Affiliate of such shareholder) and (v)
Net Offering Proceeds received (a) from Xxxxxx X. Xxxxx, Xxxxxx X.
Xxxxxxxxx and Xxxxxx X. Xxxxxxxx pursuant to investments in Holdings
Common Stock and/or Permitted Preferred Stock at or about the time of
the WSP Equity Infusion to the extent such Net Offering Proceeds do not
exceed $400,000 and (b) as a result of the exercise of preemptive
rights by shareholders pursuant to rights arising due to the
contributions described in clauses (ii), (iii), (iv) and (v)(a) above."
(k) SECTION 4.4(G) of the Credit Agreement is amended by
deleting such Section in its entirety and substituting the following therefor:
"(g) MANDATORY PREPAYMENT UPON RECOVERY EVENT. Within ten (10)
days following each date on which Holdings or any of its Subsidiaries
receives any cash proceeds from any Recovery Event, an amount equal to
100% of the proceeds of such Recovery Event (net of reasonable costs
and taxes incurred in connection with such Recovery Event) shall be
applied as a mandatory repayment of principal of the Loans as provided
in SECTION 4.5 in each case subject to modification of such application
as set forth in SECTION 4.5(D), PROVIDED that (1) so long as no Event
of Default or Unmatured Event of Default then exists, if the net
proceeds from any Recovery Event are less than $200,000, then no
prepayment shall be required pursuant to this SECTION 4.4(G), and (2)
so long as no Event of Default or Unmatured Event of Default then
exists, with respect to any single or series of related Recovery Events
the net proceeds therefrom which are equal to or greater than $200,000
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but less than $1,000,000, such proceeds shall not be required to be so
applied on such date to the extent that (x) Borrower has delivered a
certificate to the Agent on or prior to such date stating that such
proceeds shall be used to replace or restore any properties or assets
in respect of which such proceeds were paid within 180 days following
the date of the receipt of such proceeds (which certificate shall set
forth the estimates of the proceeds to be so expended) and (y) such
proceeds are deposited in an escrow account with Agent for the benefit
of the Secured Creditors (the "RECOVERY EVENT ESCROW ACCOUNT"), from
which escrow account amounts may be withdrawn only to repay the Loans
or to be used for the purposes described in clause (x) above, PROVIDED,
FURTHER, that (i) if the amount of such proceeds from any single or
series of related Recovery Events exceeds $200,000, then the entire
amount and not just the portion in excess of $200,000 shall be applied
as a mandatory repayment of Loans as provided above in this SECTION
4.4(G), (ii) if all or any portion of such proceeds not required to be
applied to the repayment of Loans pursuant to the first proviso of this
SECTION 4.4(G) are not so used (or contractually committed to be used)
within 180 days after the day of the receipt of such proceeds, such
remaining portion shall be applied on the last day of such period as a
mandatory repayment of principal of the Loans as provided in this
SECTION 4.4(G) and (iii) if all or any portion of such proceeds are not
required to be applied on the 180th day referred to in clause (ii)
above because such amount is contractually committed to be used and
subsequent to such date such contract is terminated or expires without
such portion being so used, then such remaining portion shall be
applied on the date of such termination or expiration as a mandatory
repayment of principal of outstanding Loans as provided in this SECTION
4.4(G)."
(l) SECTION 7.15 of the Credit Agreement is amended by
deleting such Section in its entirety and substituting therefor the following:
"Section 7.15. CASH FLOW AND AGING REPORTS. Holdings and/or
Borrower shall deliver to Agent (which will furnish copies to each
Lender with reasonable promptness), as soon as available, but in any
event (a) no later than the last day of each month, or, at any time
upon the Agent's request, summary accounts payable and accounts
receivable aging reports (including the names and, if reasonably
requested from time to time by Agent, addresses of all account debtors,
and with such accounts receivable and accounts payable divided into
such time intervals as Agent may reasonably request) of Borrower and
its Subsidiaries and (b) no later than the last day of each month, a
cash flow forecast on a rolling six month basis in a form reasonably
acceptable to Agent."
(m) SECTION 7.17 of the Credit Agreement is amended by
deleting such Section in its entirety and substituting therefor the following:
"Section 7.17. DAILY LIQUIDITY REPORTS. Holdings and/or the
Borrower shall deliver to Agent on each Business Day a report in the
form of EXHIBIT 7.17 attached hereto to Agent of the Cash and Cash
Equivalents balances held by Holdings and each of its Subsidiaries and
the Total Available Revolving Commitment as of the close of business on
the immediately preceding Business Day."
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(n) SECTION 8.1(F) of the Credit Agreement is amended by
deleting the reference to "$3,000,000" contained therein and substituting
therefor "$1,500,000" therefor.
(o) SECTION 8.2(C) of the Credit Agreement is amended by
inserting the following proviso at the end thereof:
"PROVIDED, HOWEVER, that in no event shall any additional
Junior Subordinated Notes be issued pursuant to this clause (c) from
and after July 5, 2001;"
(p) SECTION 8.2(I) of the Credit Agreement is amended by
deleting the reference to "$10,000,000" contained therein and substituting
"$5,000,000" therefor.
(q) SECTION 8.2(K) of the Credit Agreement is amended by
inserting the following proviso at the end thereof:
"PROVIDED, HOWEVER, that in no event shall any additional
Junior Subordinated Notes be issued pursuant to this clause (k) from
and after July 5, 2001;"
(r) SECTION 8.2(L) of the Credit Agreement is amended by
deleting such Section in its entirety and substituting "Intentionally Omitted;"
therefor.
(s) SECTION 8.2(P) of the Credit Agreement is amended by
deleting the reference to "$5,000,000" contained therein and substituting
"$1,000,000" therefor.
(t) SECTION 8.3(E) of the Credit Agreement is amended by
inserting the following clause at the end thereof:
"and guaranties by Holdings or any Subsidiary thereof"
(u) SECTION 8.3(F) of the Credit Agreement is amended by
deleting the first reference to "Borrower" contained therein and substituting
"Holdings" therefor.
(v) SECTION 8.4(B) of the Credit Agreement is amended by
deleting the reference to "$5,000,000" contained therein and substituting
"$2,500,000" therefor.
(w) SECTION 8.4(K) of the Credit Agreement is amended by
deleting such Section in its entirety and substituting "Intentionally Omitted;"
therefor.
(x) SECTION 8.5(B) of the Credit Agreement is amended by
deleting such Section in its entirety and substituting therefor the following:
"(b) Holdings may repurchase Holdings Common Stock or Holdings
Preferred Stock (or options with respect thereto) and Junior
Subordinated Notes held by Xxxxxxx Xxxxxxxx solely through the
cancellation in full or in part of Indebtedness owing by Xxxxxxx
Xxxxxxxx to Holdings pursuant to that certain Promissory Note dated
January 16, 2000 in the principal amount of $252,633.44."
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(y) SECTION 8.5(C) of the Credit Agreement is amended by
deleting such Section in its entirety and substituting "Intentionally Omitted;"
therefor.
(z) SECTION 8.5(E) of the Credit Agreement is amended by
deleting such Section in its entirety and substituting "Intentionally Omitted."
therefor.
(aa) SECTION 8.8(M) of the Credit Agreement is amended by
deleting the reference to "$5,000,000" contained therein and substituting
"$2,000,000" therefor.
(bb) SECTION 8.14(A)(IV) of the Credit Agreement is amended by
deleting such Section in its entirety and substituting therefor the following:
"(iv) the repurchase of Junior Subordinated Notes (1) as
permitted by SECTION 8.5(B) and (2) to the extent the sole
consideration therefor is Holdings Common Stock and/or Permitted
Holdings Preferred Stock."
(cc) SECTION 8.14(C) of the Credit Agreement is amended by
adding the following proviso at the end thereof:
"; PROVIDED, that the Junior Subordinated Notes may be
amended on or about the Third Amendment Effective Date to remove the
obligation of Holdings to make cash interest payments and to provide
for the conversion of the Junior Subordinated Notes into Permitted
Holdings Preferred Stock."
(dd) SECTION 9.1 of the Credit Agreement is amended by
deleting such Section in its entirety and substituting the following therefor:
"Section 9.1. CAPITAL EXPENDITURES. (a) Permit it or any of
its Subsidiaries to, make any Capital Expenditures, except that during
any Fiscal Year set forth below Borrower and its Subsidiaries may make
Capital Expenditures so long as the aggregate amount so made by
Borrower and its Subsidiaries (on a consolidated basis) after the
Original Closing Date during any such Fiscal Year does not exceed the
amount set forth opposite such Fiscal Year below;
FISCAL YEAR ENDING AMOUNT
------------------ ------
December 31, 2001 $17,000,000
December 31, 2002 $20,000,000
and each Fiscal Year thereafter
(b) Notwithstanding the foregoing, in the event that the
amount of Capital Expenditures permitted to be made by Borrower and its
Subsidiaries pursuant to clause (a) above in any fiscal year (before
giving effect to any increase in such permitted expenditure amount
pursuant to this clause (b)) is greater than the amount of such Capital
Expenditures made by Borrower and its Subsidiaries during such fiscal
year, 50% of such excess (the "ROLLOVER AMOUNT") may be carried forward
and utilized to make Capital Expenditures in the next succeeding fiscal
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year; PROVIDED, HOWEVER, that in no event shall the aggregate amount of
Capital Expenditures made by Borrower and its Subsidiaries during any
fiscal year pursuant to SECTION 9.1(A) exceed 125% of the amount set
forth in such SECTION 9.1(A).
(c) Notwithstanding the foregoing, Borrower and its
Subsidiaries may make additional Capital Expenditures (which Capital
Expenditures will not be included in any determination under the
foregoing clause (a)) as follows: (i) Capital Expenditures with the
insurance or condemnation proceeds received by Borrower or any of its
Subsidiaries from any Recovery Event so long as such Capital
Expenditures are to replace or restore any properties or assets in
respect to which such proceeds were paid within 180 days (or committed
to be paid within such 180 days so long as such replacement or
restoration is made within 180 days after the end of such 180 day
period) following the date of the receipt of such insurance proceeds to
the extent such insurance proceeds are not required to be applied to
repay Term Loans pursuant to SECTION 4.4(G); (ii) Capital Expenditures
constituting Permitted Acquisitions and the Transactions; (iii) Capital
Expenditures resulting, if any, from the Vanke Redemption; (iv) Capital
Expenditures resulting from the payment of earn-out obligations as set
forth on SCHEDULE 8.2(N); and (v) proceeds of Asset Dispositions which
are used or contractually committed to be used to purchase any
properties or assets used or useful in the business of Borrower and its
Subsidiaries within 180 days of receipt by Borrower and its
Subsidiaries."
(ee) SECTION 9.2 of the Credit Agreement is amended by
deleting such Section in its entirety and substituting the following therefor:
"Section 9.2. INTEREST COVERAGE RATIO. Permit the Interest
Coverage Ratio of Holdings for the applicable Test Period ending on (or
a date closest to) a date set forth below to be less than the ratio set
forth opposite such date:
DATE RATIO
---- -----
June 30, 2001 1.85 to 1.00
September 30, 2001 1.55 to 1.00
December 31, 2001 1.15 to 1.00
March 31, 2002 1.30 to 1.00
June 30, 2002 1.40 to 1.00
September 30, 2002 2.60 to 1.00
December 31, 2002 2.85 to 1.00
March 31, 2003 2.85 to 1.00
June 30, 2003 3.10 to 1.00
September 30, 2003 3.10 to 1.00
December 31, 2003 3.35 to 1.00
March 31, 2004 3.35 to 1.00
June 30, 2004 3.85 to 1.00
September 30, 2004 3.85 to 1.00
December 31, 2004 and
each Fiscal Quarter thereafter 4.35 to 1.00"
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(ff) Effective as of July 22, 2002, SECTION 9.2 of the Credit
Agreement is amended by deleting the ratio appearing opposite June 30, 2002 and
substituting "2.60 to 1.00" therefor.
(gg) SECTION 9.3 of the Credit Agreement is amended by
deleting such Section in its entirety and substituting the following therefor:
"Section 9.3. LEVERAGE RATIO. Permit the Leverage Ratio of
Holdings for the applicable Test Period ending on (or a date closest
to) a date set forth below to be more than the ratio set forth opposite
such date:
DATE RATIO
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June 30, 2001 5.40 to 1.00
September 30, 2001 6.00 to 1.00
December 31, 2001 7.75 to 1.00
March 31, 2002 7.00 to 1.00
June 30, 2002 6.80 to 1.00
September 30, 2002 3.25 to 1.00
December 31, 2002 2.90 to 1.00
March 31, 2003 2.90 to 1.00
June 30, 2003 2.65 to 1.00
September 30, 2003 2.65 to 1.00
December 31, 2003 2.40 to 1.00
March 31, 2004 2.40 to 1.00
June 30, 2004 2.20 to 1.00
September 30, 2004 2.20 to 1.00
December 31, 2004 and
each Fiscal Quarter thereafter 2.00 to 1.00"
(hh) Effective as of July 22, 2002, SECTION 9.3 of the Credit
Agreement is amended by deleting the ratio appearing opposite June 30, 2002 and
substituting "3.25 to 1.00" therefor.
(ii) SECTION 9.4 of the Credit Agreement is amended by
deleting such Section in its entirety and substituting the following therefor:
"Section 9.4. ADJUSTED FIXED CHARGE COVERAGE RATIO. Permit the
Adjusted Fixed Charge Coverage Ratio of Holdings for the applicable
Test Period ending on (or a date closet to) a date set forth below to
be less than the ratio set forth opposite such date:
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DATE RATIO
---- -----
June 30, 2001 1.20 to 1.00
September 30, 2001 0.95 to 1.00
December 31, 2001 0.65 to 1.00
March 31, 2002 0.75 to 1.00
June 30, 2002 0.75 to 1.00
September 30, 2002 1.275 to 1.00
December 31, 2002 1.300 to 1.00
March 31, 2003 1.300 to 1.00
June 30, 2003 1.350 to 1.00
September 30, 2003 1.350 to 1.00
December 31, 2003 1.400 to 1.00
March 31, 2004 1.400 to 1.00
June 30, 2004 1.450 to 1.00
September 30, 2004 1.450 to 1.00
December 31, 2004 and
each Fiscal Quarter thereafter 1.500 to 1.00"
(jj) Effective as of July 22, 2002, SECTION 9.4 of the Credit
Agreement is amended by deleting the ratio appearing opposite June 30, 2002 and
substituting "1.275 to 1.00" therefor.
(kk) SECTION 10.1(E) of the Credit Agreement is amended by
inserting a new clause at the introduction thereof to read as follows:
"WSPIII, (on or prior to the Equity Call Termination Date (as
defined in the Equity Call Agreement)) or"
(ll) SECTION 10.1(F) of the Credit Agreement is amended by
deleting such Section in its entirety and substituting the following therefor:
"(f) INVOLUNTARY INSOLVENCY, ETC. Involuntary proceedings or
an involuntary petition shall be commenced or filed against WSPIII (on
or prior to the Equity Call Termination Date (as defined in the Equity
Call Agreement)) or Holdings or any of its Subsidiaries under any
bankruptcy, insolvency or similar law or seeking the dissolution or
reorganization of it or the appointment of a receiver, trustee,
custodian or liquidator for it or of a substantial part of its
property, assets or business, or any writ, judgment, warrant of
attachment, execution or similar process shall be issued or levied
against a substantial part of its property, assets or business, and
such proceedings or petition shall not be dismissed, or such writ,
judgment, warrant of attachment, execution or similar process shall not
be released, vacated or fully bonded, within sixty (60) days after
commencement, filing or levy, as the case may be, or any order for
relief shall be entered in any such proceeding; or"
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(mm) SECTION 10.1(M) of the Credit Agreement is amended by
deleting the period at the end thereof and inserting "; or" therefor.
(nn) SECTION 10.1 of the Credit Agreement is amended by
inserting a new SECTION 10.1(N) to read as follows:
"(n) EQUITY CALL AGREEMENT. The Equity Call Agreement shall
cease to be in full force and effect other than in accordance with the
terms thereof or WSPIII, Holdings or Borrower shall default in the due
performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to the Equity Call Agreement;
or"
(oo) SECTION 10.1 of the Credit Agreement is further amended
by inserting a new SECTION 10.1(O) to read as follows:
"(o) WSP EQUITY INFUSION. Holdings shall fail to receive
$10,000,000 in immediately available funds from WSPIII pursuant to
documentation satisfactory to the Agent on or before the tenth Business
Day following the Third Amendment Effective Date or Holdings shall fail
to immediately contribute such amount to Borrower."
(pp) The Credit Agreement is further amended by attaching a
new EXHIBIT 7.17 thereto in the form of EXHIBIT 7.17 attached hereto.
(qq) SCHEDULE 1.1(A) to the Credit Agreement is amended by
deleting such Schedule in its entirety and substituting SCHEDULE 1.1(A) attached
hereto.
(rr) Article VIII of the Credit Agreement is amended by
inserting a new SECTION 8.18 at the end thereof as follows:
"Section 8.18. ONE TIME REPORTING REQUIREMENT. On or before
July 22, 2002, Holdings shall furnish to Agent a certificate of the
chief financial officer of Holdings setting forth detailed computations
of each of the financial covenants set forth in Article IX for the
period ended June 30, 2002 and stating that, to the best of such
officer's knowledge based on the most recently available preliminary
internal financial statements, such computations present fairly in all
material respects the results of operations of Holdings and its
Subsidiaries."
4. NULLIFICATION OF CERTAIN AMENDMENTS. Upon the delivery of an
officer's certificate pursuant to SECTION 7.2(B) of the Credit Agreement for any
Fiscal Quarter or Fiscal Year ending after the Effective Date which certifies to
the Agent's satisfaction compliance with all of the covenants set forth in
Article IX of the Credit Agreement as such covenants existed on the Restatement
Date without giving effect to any subsequent amendments to such covenants and
which specifically references the resulting change from Monthly Payment Dates to
Quarterly Payment Dates, the following amendments to the Credit Agreement shall
be of no further force and effect and the applicable Sections to the Credit
Agreement that are amended by SECTION 3 of this Agreement shall revert back to
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the form in which such Sections existed prior to giving effect to SECTION 3 of
this Agreement (but subject to giving effect to SECTION 2 of this Agreement):
(a) SECTION 3(C) (amending the definitions of "Cash
Equivalents" and "Interest Payment Date");
(b) SECTION 3(F) (amending payment dates to monthly from
quarterly);
(c) SECTION 3(H) (amending SECTION 4.4(C) of the Credit
Agreement);
(d) SECTION 3(I) (amending SECTION 4.4(D) of the Credit
Agreement);
(e) SECTION 3(J) (amending SECTION 4.4(E) of the Credit
Agreement);
(f) SECTION 3(K) (amending SECTION 4.4(G) of the Credit
Agreement);
(g) SECTION 3(N) (amending SECTION 8.1(F) of the Credit
Agreement);
(h) SECTION 3(O) (amending SECTION 8.2(C) of the Credit
Agreement);
(i) SECTION 3(P) (amending SECTION 8.2(I) of the Credit
Agreement);
(j) SECTION 3(Q) (amending SECTION 8.2(K) of the Credit
Agreement);
(k) SECTION 3(R) (amending SECTION 8.2(L) of the Credit
Agreement);
(l) SECTION 3(S) (amending SECTION 8.2(P) of the Credit
Agreement);
(m) SECTION 3(V) (amending SECTION 8.4(B) of the Credit
Agreement);
(n) SECTION 3(X) (amending SECTION 8.5(B) of the Credit
Agreement); and
(o) SECTION 3(AA) (amending SECTION 8.8(M) of the Credit
Agreement).
5. CHANGES IN INTEREST RATES AND FEES. Borrower, Holdings, the Lenders
and the Agent acknowledge and agree that notwithstanding any provision in the
Credit Agreement to the contrary, all changes to interest rates and fees
pursuant to this Agreement shall become effective immediately on the Effective
Date (including any changes to the Applicable Eurodollar Rate Margin with
respect to any outstanding Eurodollar Loans) and, where applicable, shall be
based upon a Most Recent Ratio of Total Debt to EBITDA of 4.25 to 1.00.
6. AMENDMENT FEE. In consideration of the execution of this Agreement
by the Agent and the Required Lenders, the Borrower hereby agrees to pay to each
Lender which executes this Agreement on or prior to 12:00 Noon (New York City
time) July 27, 2001 a fee (the "AMENDMENT FEE") in an amount equal to (a) such
Lender's Revolving Commitment as in effect prior to the Effective Date plus the
aggregate outstanding principal amount of such Lender's Term Loans multiplied by
(b) 0.25%.
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7. 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:
(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) 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) No Event of Default or Unmatured Event of Default exists
under the Credit Agreement or would exist after giving effect to this Agreement.
8. CONDITIONS TO EFFECTIVENESS OF AMENDMENT. This Agreement shall
become effective as of July 27, 2001 (the "EFFECTIVE DATE") upon satisfaction of
the following conditions precedent:
(a) EXECUTION AND DELIVERY. The Borrower, Holdings, the Agent
and the Required Lenders shall have executed and delivered this Agreement,
Holdings and the Borrower shall have executed and delivered an Officers
Certificate in the form of EXHIBIT A attached hereto and Holdings and the
Subsidiaries of the Borrower shall have executed and delivered a Reaffirmation
of Guarantee in the form of EXHIBIT B attached hereto.
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(b) NO DEFAULTS. After giving effect to this Agreement, no
Event of Default or Unmatured Event of Default under the Credit Agreement shall
have occurred and be continuing.
(c) REPRESENTATIONS AND WARRANTIES. 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.
(d) PAYMENT OF FEES. The Borrower shall have paid the
Amendment Fee in full to the Agent for ratable distribution to the Lenders that
have executed and delivered this Agreement on or prior to 12:00 Noon (New York
City time) July 27, 2001; PROVIDED, HOWEVER, that the Amendment Fee shall be
payable only in the event that this Agreement has been executed by the Persons
described in SECTION 8(A) above.
(e) EQUITY CALL AGREEMENT. WSPIII, Borrower, Holdings and
Agent shall have duly executed and delivered to Agent, an Equity Call Agreement
in the form of EXHIBIT C attached hereto.
(f) OPINION OF COUNSEL. Agent shall have received the signed
opinion of Xxxxxxxx & Xxxxx, counsel to WSPIII, Holdings and Borrower, dated the
Third Amendment Effective Date and addressed to Agent and all of the Lenders
which shall be in form and substance reasonably satisfactory to Agent and which
shall cover such matters incident to the transactions contemplated herein as
Agent or the Required Lenders may reasonably request.
(g) SECRETARY'S CERTIFICATE. On the Third Amendment Effective
Date, Agent shall have received from (i) Holdings a certificate signed by the
secretary or an assistant secretary of Holdings, dated the Third Amendment
Effective Date, as to the incumbency and signature of the officers of Holdings
executing any Loan Document and any certificate or other document or instrument
to be delivered pursuant hereto by or on behalf of Holdings, together with
evidence of the incumbency of such Secretary or Assistant Secretary, as the case
may be and certifying as true and correct and attaching copies of the Articles
or Certificate of Incorporation (including the terms of the Permitted Holdings
Preferred Stock to be issued pursuant to the WSP Equity Infusion and the Equity
Call Agreement) and By-Laws of Holdings, the purchase agreement related to the
WSP Equity Infusion, the form of Amended and Restated Investor Rights Agreement
and the form of Junior Subordinated Note providing for the conversion of such
notes to Permitted Holdings Preferred Stock and certifying as true and correct
and in full force and effect and attaching the resolutions of Holdings referred
to in clause (h) of this Section, (ii) Borrower a certificate signed by the
secretary or an assistant secretary of Borrower, dated the Third Amendment
Effective Date, as to the incumbency and signature of the officers of Borrower
executing any Loan Document and any certificate or other document or instrument
to be delivered pursuant hereto by or on behalf of Borrower, together with
evidence of the incumbency of such Secretary or Assistant Secretary, as the case
may be and certifying either that there have been no changes to the
Organizational Documents of Borrower since the Original Closing Date or
certifying as true and correct and attaching copies of the Articles or
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Certificate of Incorporation and By-Laws (or other Organizational Documents) of
Borrower and certifying as true and correct and in full force and effect and
attaching the resolutions of Borrower referred to in clause (h) of this Section
and (iii) each WSPIII entity, a certificate dated the Third Amendment Effective
Date and evidencing the partnership authority of each to execute each Loan
Document and any certificate or other document or instrument to be delivered
pursuant hereto by or on behalf of such WSPIII entity.
(h) RESOLUTIONS. Agent shall have received a copy of all
resolutions (in form and substance reasonably satisfactory to Agent) adopted by
the Board of Directors of each of Borrower and Holdings, authorizing or relating
to (i) the execution, delivery and performance of this Agreement, the Equity
Call Agreement and the other documents and instruments provided for therein and
(ii) the consummation of the transactions contemplated hereby and thereby.
(i) GOOD STANDING CERTIFICATES. Agent shall have received good
standing certificates for each WSPIII entity and each of Borrower and Holdings
from their respective jurisdictions of incorporation or organization.
(j) EQUITY INFUSION. Simultaneously with the consummation of
the transactions contemplated by this Agreement, on the Third Amendment
Effective Date, Holdings shall have received a legally binding and enforceable
irrevocable commitment from WSPIII to contribute cash in the amount of
$10,000,000 to Holdings no later than ten (10) Business Days after the Third
Amendment Effective Date as consideration for the issuance of Holdings Common
Stock and Permitted Holdings Preferred Stock (which cash Holdings shall
immediately contribute to Borrower) (the "WSP EQUITY INFUSION").
(k) REVISED PROJECTIONS. Holdings shall have delivered to
Agent revised projections in form and substance satisfactory to Agent and the
Required Lenders covering the period from July 1, 2001 through December 31, 2002
prepared in reasonable detail, with appropriate presentation and discussion of
the principal assumptions upon which such budgets and projections are based,
which shall be accompanied by the certificate of a Responsible Officer on behalf
of Holdings to the effect that, the projections are reasonable and attainable,
it being understood that uncertainty is inherent in any forecasts or projections
and that no assurance can be given that the results set forth in the projections
will actually be obtained.
(l) 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
11(A) hereof and SECTION 12.4 of the Agreement) of the Agent.
(m) 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.
9. PAYMENTS RELATED TO PRIOR PERMITTED ACQUISITIONS. Notwithstanding
anything set forth in SECTION 3(W) above to the contrary, Borrower and its
Subsidiaries may make payments not to exceed (i) $4,000,000 after the date
hereof to either Xxxxxxx X. Xxxxxx or The Sheetmetalworkers Pension Fund,
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pursuant to that certain Asset Purchase Agreement, dated as of December 19,
2000, by and among Orius Telecom Products, Inc., Quality Metal Works, Inc., and
the Indemnitors listed on the signature pages thereto, and related documents,
and (ii) $1,000,000 in 2002 to former employees of Hattech, Inc., pursuant to
that certain Stock Purchase Agreement, dated as of May 31, 2000, by and among
Hattech Acquisition, Corp., Orius Corp., and the Shareholders of Hattech, Inc.,
and related documents, in each case to the extent such payments would have been
permitted pursuant to the Credit Agreement had SECTION 8.4(K) not been amended
by this Agreement.
10. CONSENT AND WAIVER. The Required Lenders hereby consent to the
terms of the Equity Call Agreement attached hereto as EXHIBIT C. The Required
Lenders hereby waive any Event of Default or Unmatured Event of Default arising
from the issuance of guaranties by Holdings prior to the date hereof in
violation of SECTION 8.3(E) and (F) of the Credit Agreement to the extent that
Holdings would have been in compliance with such Sections had the amendments
contained in Sections 3(t) and (u) of this Agreement been effective.
11. 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.
(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
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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 a
Agreement of any rights, power or remedy of the Lenders or the Agent under the
Credit Agreement or any other Loan Document, nor constitute a Agreement 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 a Agreement
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.
[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
---------------------------------
Name: XXXXXX X. XXXXX
---------------------------------
Title: SENIOR VICE PRESIDENT AND CFO
---------------------------------
NATG HOLDINGS, LLC
By: /s/ XXXXXX X. XXXXX
---------------------------------
Name: XXXXXX X. XXXXX
---------------------------------
Title: SENIOR VICE PRESIDENT AND CFO
---------------------------------
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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 7(A) of that certain Third
Amendment to Amended and Restated Credit Agreement dated as of July 27, 2001
(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 7 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. 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 8 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 27th day
of July, 2001.
ORIUS CORP. NATG HOLDINGS, LLC
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
-------------------------- -------------------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
Title: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
1
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EXHIBIT B
REAFFIRMATION OF GUARANTEE
Each of the undersigned acknowledges receipt of a copy of the Third
Amendment to Amended and Restated Credit Agreement (the "AGREEMENT"; capitalized
terms used herein shall, unless otherwise defined herein, have the meanings
provided in the Agreement) dated as of July 27, 2001, 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 July 27, 2001.
ORIUS CORP.
By: /s/ XXXXXX X. XXXXX
--------------------------------
Name: XXXXXX X. XXXXX
Title: SENIOR VICE PRESIDENT AND CFO
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: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
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: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
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: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
1
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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: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
COPENHAGEN UTILITIES & CONSTRUCTION, XXXXXX UNDERGROUND CABLE, INC.
INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
--------------------------------- -------------------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
Title: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
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: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
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: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
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: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
--------------------------------- -------------------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
Title: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
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HATTECH, INC. ORIUS CAPITAL CORP.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
--------------------------------- -------------------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
Title: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
LISN COMPANY LISN, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
--------------------------------- -------------------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
Title: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
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: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
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: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
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: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
ORIUS BROADBAND 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: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
ORIUS CENTRAL OFFICE 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: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
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25
ORIUS INTEGRATED PREMISE SERVICES, INC. ORIUS TELECOMMUNICATION HOLDINGS
(WI), INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
--------------------------------- -------------------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
Title: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
ORIUS TELECOMMUNICATION SERVICES ORIUS TELECOMMUNICATION SERVICES
(WI), LP (WI), INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
--------------------------------- -------------------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
Title: SENIOR VICE PRESIDENT AND CFO Title: SENIOR VICE PRESIDENT AND CFO
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26
EXHIBIT 7.17
FORM OF LIQUIDITY REPORT
I, the undersigned, _________________________ of NATG Holdings, LLC, a
Delaware limited liability company ("BORROWER"), and Orius Corp., a Florida
corporation ("HOLDINGS"), in accordance with SECTION 7.17 of that certain
Amended and Restated Credit Agreement dated as of July 5, 2000 among Holdings,
Borrower, Bankers Trust Company, as Agent, and the financial institutions party
thereto (as amended, restated, supplemented or otherwise modified from time to
time, the "AGREEMENT") do hereby certify on behalf of the Borrower and Holdings
and not in my individual capacity, the following:
1. The Cash balances of Borrower and its Subsidiaries held in
accounts with financial institutions as of the close of
business on the Business Day immediately preceding the date of
this Liquidity Report equaled $____________.(1)
2. Cash Equivalents of Borrower and its Subsidiaries as of the
close of business on the Business Day immediately preceding
the date of this Liquidity Report equaled $____________.
3. The Total Available Revolving Commitment as of the close of
business on the Business Day immediately preceding the date of
this Liquidity Report equaled $____________ (Total Revolving
Commitments of $49,246,638 MINUS aggregate principal amount of
Revolving Loans outstanding of $___________ MINUS aggregate LC
Obligations outstanding of $____________ MINUS aggregate
amount of Swing Line Loans outstanding of $___________).
4. The sum of the amounts set forth in items 1-3 above is
$______________.
5. Attached hereto are true and correct copies of supporting
documentation for the calculations set forth in items 1-3
above.
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings set forth in the Agreement.
[signature page follows]
--------
(1) Including (i) the amount of any Capital Infusion (as defined in the Equity
Call Agreement) not yet made but for which an Equity Call Notice (as
defined in the Equity Call Agreement) has been made so long as such Capital
Infusion is actually made within the time period required under the Equity
Call Agreement, and (ii) $10,000,000 from and after the Third Amendment
Effective Date until such time as Holdings and Borrower receive the WSP
Equity Infusion in accordance with the terms of the Third Amendment so long
as such $10,000,000 is actually received by Holdings and Borrower on or
prior to the tenth (10th) Business Day following the Third Amendment
Effective Date.
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27
IN WITNESS WHEREOF, the undersigned has duly executed and delivered on
behalf of the Borrower and Holdings this Certificate of Officer on this ____th
day of ______, 200__.
ORIUS CORP. NATG HOLDINGS, LLC
By: By:
---------------------------- -------------------------------
Name: Name:
---------------------------- -------------------------------
Title: Title:
---------------------------- -------------------------------
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28
SCHEDULE 1.1(a)
Commitments
AMOUNT OF
LENDER REVOLVING COMMITMENT
------ ---------------------
Bankers Trust Company $12,286,533.66
Bank of America, N.A. $9,214,900.25
First Union National Bank $7,167,144.64
SunTrust Bank, Atlanta $5,628,187.20
BNP Paribas (f/k/a Banque $4,221,140.40
Nationale de Paris)
National City Bank $4,221,140.40
Wachovia Bank, N.A. $3,693,497.85
Union Planters Bank $2,814,093.60
-------------
Total: $49,246,638.00
=============
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29
EXHIBIT C
EQUITY CALL AGREEMENT
THIS EQUITY CALL AGREEMENT (this "AGREEMENT"), dated as of
July 27, 2001, is made by and among Orius Corp., a Florida corporation
("HOLDINGS"), NATG Holdings, LLC, a Delaware limited liability company
("BORROWER"), Xxxxxx Xxxxx & Partners III, L.P., a Delaware limited partnership
("WSIII"), Xxxxxx Xxxxx & Partners Dutch III-A, L.P., a Delaware limited
partnership ("WSPA"), Xxxxxx Xxxxx & Partners Dutch III-B, L.P., a Delaware
limited partnership ("WSPB"), Xxxxxx Xxxxx & Partners III-C, L.P., a Delaware
limited partnership ("WSPC") and Bankers Trust Company, in its capacity as
administrative agent ("ADMINISTRATIVE AGENT") for the Lenders (as defined in the
hereinafter defined Credit Agreement). WSIII, WSPA, WSPB and WSPC are
collectively referred to herein as the "EQUITY INVESTORS" and individually as an
"EQUITY INVESTOR".
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Holdings, Borrower, the financial institutions from time to
time party thereto, including Bankers Trust Company, in their capacities as
lenders thereunder (collectively, the "LENDERS," and each individually, a
"LENDER"), and Administrative Agent have entered into the Amended and Restated
Credit Agreement dated as of July 5, 2000, as amended, providing for the making
of Loans and the issuance of, and participation in, Letters of Credit as
contemplated therein (as used herein, the term "CREDIT AGREEMENT" means the
Credit Agreement described above in this paragraph, as the same may be amended,
modified, extended, renewed, replaced, restated or supplemented from time to
time, and including any agreement extending the maturity of or restructuring of
all or any portion of the Indebtedness under such agreement or any successor
agreements);
WHEREAS, Holdings, Borrower, the Lenders and Administrative Agent are
party to a Third Amendment to Amended and Restated Credit Agreement dated as of
the date hereof; and
WHEREAS, it is a condition precedent to the above-described amendment
and to continued extensions of credit pursuant to the Credit Agreement that the
Equity Investors Holdings and Borrower shall have executed and delivered this
Agreement;
NOW, THEREFORE, in consideration of such benefits and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, intending to be legally bound, and with full knowledge that
Administrative Agent and the Lenders will rely on the contents of this Agreement
in providing extensions of credit to Borrower under the Credit Agreement,
Holdings, Borrower and each Equity Investor hereby certify to and covenant and
agree with Administrative Agent as follows:
1. DEFINITIONS. Capitalized terms used herein, but not expressly
defined herein, shall have the meanings given to such terms in the Credit
Agreement. In addition, the following terms shall have the meanings specified
below. Such definitions shall be equally applicable to the singular and plural
forms of the terms defined.
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"AVAILABILITY" means, at any time, the aggregate amount of Revolving
Loans available to be borrowed under the Credit Agreement taking into account
the aggregate amount of outstanding Revolving Loans, Swing Line Loans and LC
Obligations at such time and the ability of Borrower to satisfy the conditions
precedent to all Credit Events set forth in SECTION 5.2 of the Credit Agreement.
"CAPITAL INFUSION" means the direct contribution by the Equity
Investors of cash to Holdings in exchange for Holdings Common Stock and
Permitted Holdings Preferred Stock.
"MAJORITY EQUITY INVESTORS" means the Equity Investors obligated to
contribute upon the occurrence of an Equity Call Event, at any time of
determination, in the aggregate greater than 50% of the Maximum Infusion
Balance.
"MAXIMUM INFUSION AMOUNT" means Fifteen Million Dollars ($15,000,000).
"MAXIMUM INFUSION BALANCE" means, at any time of determination, an
amount equal to the Maximum Infusion Amount MINUS the aggregate amount of all
Capital Infusions made in accordance with this Agreement prior to such
determination.
"PRO RATA SHARE" means, with respect to each Equity Investor, the
percentage set forth opposite such Equity Investor's name on ANNEX A attached
hereto and incorporated herein.
2. EQUITY CALL COMMITMENT. Each Equity Investor hereby commits,
severally and for itself alone, subject to the terms and conditions of this
Agreement, but otherwise irrevocably, to Administrative Agent and Lenders that
if, at any time: (i) on or prior to July 21, 2002 the aggregate amount of cash
balances of Borrower and its Subsidiaries (it being acknowledged and agreed by
all of the parties hereto that the amount of such cash balances shall be deemed
to include the amount of any Capital Infusion not yet made but for which an
Equity Call Notice has been made in accordance with the terms hereof so long as
such Capital Infusion is actually made within the time period required
hereunder, and shall be deemed to include $10,000,000 from and after the Third
Amendment Effective Date until such time as Holdings and Borrower receive the
WSP Equity Infusion in accordance with the terms of the Third Amendment so long
as such $10,000,000 is actually received by Holdings and Borrower on or prior to
the tenth (10th) Business Day following the Third Amendment Effective Date) held
in accounts with financial institutions and Cash Equivalents of Borrower and its
Subsidiaries PLUS the amount of Availability falls below $15,000,000 for three
(3) consecutive Business Days (a "LIQUIDITY SHORTFALL"); (ii) on or prior to
July 21, 2002 the Equity Investors receive a certificate from a Responsible
Officer of Borrower certifying on behalf of Borrower that the Board of Directors
of Borrower has elected to request that the Equity Investors make a Capital
Infusion pursuant to this Agreement (a "BORROWER REQUEST"); (iii) upon an Event
of Default under SECTION 10.1(A) of the Credit Agreement (a "PAYMENT DEFAULT");
(iv) upon an Event of Default under SECTION 10.1(E) OR (F) of the Credit
Agreement (a "BANKRUPTCY OR INSOLVENCY EVENT"); or (v) on or prior to July 21,
2002 the Majority Equity Investors elect to have the Equity Investors make a
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31
Capital Infusion and give written notice thereof to Borrower and Administrative
Agent (an "EQUITY INVESTORS ELECTION" and, together with each Liquidity
Shortfall, Borrower Request, Payment Default and Bankruptcy or Insolvency Event,
each an "EQUITY CALL EVENT"), each Equity Investor shall within twelve (12)
Business Days after written notice is delivered by (1) Administrative Agent or
Borrower (with a copy to Administrative Agent) to the Equity Investors, in the
case of a Liquidity Shortfall, (2) Administrative Agent to the Equity Investors,
in the case of a Payment Default or a Bankruptcy or Insolvency Event, (3)
Borrower to the Equity Investors and Administrative Agent in the case of a
Borrower Request, and (4) the Majority Equity Investors to Borrower,
Administrative Agent and the other Equity Investors, in the case of an Equity
Investors Election (any such notice described in clauses (1), (2), (3) and (4)
above, an "EQUITY CALL NOTICE"), make such Equity Investor's Pro Rata Share of a
Capital Infusion to Holdings (with Holdings being obligated to simultaneously
make a capital contribution in the same amount as such contribution to Borrower)
(x) which Capital Infusion shall be in an aggregate amount then necessary to
cure such Payment Default or Liquidity Shortfall (or, if the Maximum Infusion
Balance at the time of determination thereof is less than the amount necessary
to effect such cure, in the entire amount of the Maximum Infusion Balance), (y)
in the full amount of the Maximum Infusion Balance in the case of a Bankruptcy
or Insolvency Event, and (z) in such amount as requested by Borrower in a
Borrower Request or specified by the Majority Equity Investors in an Equity
Investors Election (limited to the Maximum Infusion Balance at such time);
PROVIDED, HOWEVER, that, notwithstanding the foregoing, in no event shall the
Equity Investors be required pursuant hereto to make any payments or be
obligated for any amounts other than the Capital Infusions in an aggregate
amount not to exceed the Maximum Infusion Amount; and PROVIDED FURTHER, that if
the Maximum Infusion Balance is insufficient to obtain the cure of any such
Payment Default or Liquidity Shortfall, the Equity Investors nonetheless shall
be obliged to make a Capital Infusion to the full extent of the Maximum Infusion
Balance then available in mitigation thereof. Administrative Agent, Borrower
and/or the Majority Equity Investors, as applicable, may make one Equity Call
Notice or multiple Equity Call Notices; SUBJECT, HOWEVER, to the foregoing
limitation on the maximum amount of Capital Infusions. Each Equity Call Notice
sent by Administrative Agent or Borrower regarding a Liquidity Shortfall shall
specify the amount of such Liquidity Shortfall and include the amount of
Availability used to calculate the Liquidity Shortfall and be accompanied by a
copy of the most recent daily cash balance report received by Administrative
Agent pursuant to SECTION 7.17 of the Credit Agreement. Each Equity Call Notice
sent by Administrative Agent regarding a Payment Default shall specify the
amount of such Payment Default. Promptly upon receipt by Holdings of any Capital
Infusion, Holdings shall simultaneously make a capital contribution in the same
amount in cash to Borrower. The proceeds of each Capital Infusion made pursuant
to a Payment Default shall be paid over and delivered by the Equity Investor by
wire transfer of immediately available funds directly to Administrative Agent,
and not to Holdings, for application to the Obligations within twelve (12)
Business Days after an Equity Call Notice is delivered by Administrative Agent
to the Equity Investor. Promptly upon learning of a Liquidity Shortfall (other
than through the receipt of an Equity Call Notice from Administrative Agent
relating to a Liquidity Shortfall), Borrower shall notify in writing
Administrative Agent and the Equity Investors of the amount thereof (it being
acknowledged and agreed by all of the parties hereto that (i) such notice may be
satisfied by Borrower's prompt delivery of an Equity Call Notice regarding a
Liquidity Shortfall which satisfy the requirements set forth above in this
SECTION 2 and (ii) the failure by Borrower to deliver such notice shall not in
any way limit the right of Administrative Agent to deliver an Equity Call Notice
regarding a Liquidity Shortfall and the Equity Investors' obligations to make a
Capital Infusion with respect thereto). Holdings and Borrower hereby acknowledge
and agree to the terms hereof and their obligations hereunder.
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3. AGREEMENTS TO MAINTAIN AVAILABLE COMMITMENTS. In support of its
obligations hereunder, each Equity Investor hereby (i) certifies to
Administrative Agent and the Lenders that the investors in such Equity Investor
have made binding commitments to such Equity Investor to make capital
contributions to such Equity Investor at least equal in amount to its Pro Rata
Share of the Maximum Infusion Balance (the "BACKUP COMMITMENTS") and (ii)
covenants that Backup Commitments in an amount not less than its Pro Rata Share
of the Maximum Infusion Balance at any one time will be maintained at all times
by such Equity Investor such that the investors in such Equity Investor may be
called upon to make capital contributions to such Equity Investor in an
aggregate amount not less than its Pro Rata Share of the Maximum Infusion
Balance at any time. Each Equity Investor will report in respect of the
foregoing upon its execution hereof and from time to time thereafter, at the
request of Administrative Agent, such report to be in such detail and include
such supporting documentation as Administrative Agent may reasonably request
from time to time. Should any Equity Investor fail at any time to maintain its
Backup Commitments in the amount required hereunder, its failure to do so shall
(i) constitute a Payment Default, and (ii) permit Administrative Agent to make
an Equity Call Notice for the full amount of the Maximum Infusion Balance.
4. CONTINUING AGREEMENT AND TERMINATION. This is a continuing agreement
and the obligations of the Equity Investor hereunder shall continue until the
EARLIEST to occur of the following (the "EQUITY CALL TERMINATION DATE"): (i)
termination of the Credit Agreement and all Commitments thereunder and full
payment in cash and satisfaction of all Obligations (other than unasserted
contingent and indemnification obligations which expressly survive termination);
(ii) the date on which Capital Infusions have been made which equal the Maximum
Infusion Amount; and (iii) July 21, 2002 unless an Equity Call Notice has been
issued prior to such date for which a Capital Infusion has not been made, in
which case such date shall be the date on which such Capital Infusion is made in
accordance with this Agreement.
5. CERTAIN ACKNOWLEDGMENTS. Each Equity Investor acknowledges that the
issuance (or non-issuance) of any Equity Call Notice, or the honoring of any
Equity Call Event by the Equity Investors, shall not in any way limit the
exercise by Administrative Agent or any Lender of its rights and remedies under
the Credit Agreement respecting any Event of Default or Unmatured Event of
Default (other than an Event of Default under (i) SECTION 10.1(A) of the Credit
Agreement which is cured or deemed cured upon the receipt by Administrative
Agent of a Capital Infusion made as a result of a Payment Default and (ii)
SECTION 9.3 of the Credit Agreement which is cured or deemed cured upon receipt
by Holdings of a Capital Infusion, the proceeds of which are used to repay
outstanding Indebtedness of Borrower and its Subsidiaries (with such repayment
being deemed to have been made on the last day of the most recently ended Test
Period for purposes of determining such cure)), and that, without limiting the
foregoing, Administrative Agent and the Lenders shall retain the right to
accelerate payment of the Obligations as provided for in the Credit Agreement
with respect to any such Event of Default.
6. NATURE OF OBLIGATIONS. Except as expressly provided in SECTION 4,
the liability of the Equity Investors under this Agreement shall remain in full
force and effect without regard to, and shall not be released, suspended,
discharged, terminated, modified or otherwise affected by any circumstance or
occurrence whatsoever, including without limitation any of the following
(whether or not any Equity Investor consents thereto or has notice thereof): (i)
any change in or waiver of the time, place or manner of payment, or any other
term, of any of the Obligations or Loan Documents, any waiver of or any renewal,
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33
extension, increase, amendments or modification of or addition, consent or
supplement to or deletion from, or any other action or inaction under or in
respect of, any of the Obligations or Loan Documents or any other document,
instrument or agreement referred to therein or any assignment or transfer of any
of the Obligations or Loan Documents; (ii) any lack of validity, legality or
enforceability of any of the Obligations or Loan Documents or any other
document, instrument, or agreement referred to therein or of any assignment or
transfer of any of the foregoing; (iii) any furnishing of any additional
collateral for any of the Obligations or any sale, exchange, release or
surrender of or realization on, any collateral for any of the Obligations; (iv)
any settlement, release or compromise of any of the Obligations or Loan
Documents, any collateral therefor, or any liability of any other party
(including without limitation by any guarantor) with respect to any other of the
Obligations or Loan Documents (other than the termination of the Credit
Agreement and all Commitments thereunder and full payment in cash and
satisfaction of all Obligations (other than unasserted contingent and
indemnification obligations which expressly survive termination)), or any
subordination of payment of any of the Obligations to the payment of any other
indebtedness, liability or obligations of Holdings, Borrower or any other Credit
Party; (v) any bankruptcy, insolvency, reorganization, composition, adjustment,
merger, consolidation, dissolution, liquidation or other like proceeding or
occurrence relating to Holdings, Borrower or any other Credit Party or any other
change in the ownership, composition or nature of Holdings, Borrower or any
other Credit Party or any Equity Investor, (vi) any non-perfection,
subordination, release, avoidability or voidability of any security interest,
security title, pledge, collateral assignment or other lien of Administrative
Agent or Collateral Agent on any collateral for any of the Obligations; (vii)
any application of sums paid by Holdings, Borrower or any other Credit Party or
any other Person with respect to any of the Obligations (other than the
termination of the Credit Agreement and all Commitments thereunder and full
payment in cash and satisfaction of all Obligations (other than unasserted
contingent and indemnification obligations which expressly survive
termination)); (viii) the failure of Administrative Agent or Collateral Agent or
any Lender to assert any claim or demand or to enforce any right or remedy
against Holdings, Borrower or any other Credit Party or any other Person
(including any guarantor of any of the Obligations or any Equity Investor
hereunder) under the provision of any of the Loan Documents or otherwise, or any
failure of Administrative Agent, Collateral Agent or any Lender to exercise any
right or remedy against any other guarantor of or any collateral for any of the
Obligations; (ix) any other act or failure to act by Administrative Agent,
Collateral Agent or any Lender which may adversely affect the Equity Investor;
or (x) any other circumstance affecting Holdings, Borrower or any other Credit
Party, the Obligations or any Loan Documents which might, in the absence of this
provision, otherwise constitute a defense against or a legal or equitable
discharge of, the Equity Investor's liability under this Agreement.
7. WAIVERS AND CONSENTS. Except as expressly provided in SECTION 4,
each Equity Investor hereby waives: (i) notice of acceptance of this Agreement
by Administrative Agent and the Lenders; (ii) notice of the creation, existence,
acquisition, extension, or renewal of any of the Obligations; (iii) notice of
the amount of the Obligations outstanding from time to time; (iv) notice of any
Unmatured Event of Default or Event of Default under any of the Loan Documents
or with respect to any of the Obligations or notice of any other adverse change
in Holdings', Borrower's or any other Credit Party's financial condition or
means or ability to pay any of the Obligations or perform its obligations under
any of the Loan Documents or notice of any other fact which might increase any
Equity Investor's risk hereunder; (v) notice of presentment, demand, protest,
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34
and notice of dishonor or nonpayment as to any instrument pertaining to the
Obligations; (vi) notice of any acceleration or other demand for payment of any
of the Obligations; and (vii) all other notices and demands to which any Equity
Investor might otherwise be entitled with respect to any of the Obligations or
the Loan Documents or with respect to the enforcement of its rights and remedies
thereunder by Administrative Agent, Collateral Agent or any Lender. Each Equity
Investor further waives any right such Equity Investor may have by statute or
otherwise, to require Administrative Agent, Collateral Agent or any Lender to
seek recourse first against Holdings, Borrower or any other Credit Party or any
other Person, or to realize upon any collateral for any of the Obligations, as a
condition precedent to enforcing such Equity Investor's liability and
obligations under this Agreement, and each Equity Investor further waives any
defense arising by reason of any incapacity or other disability of Holdings,
Borrower or any other Credit Party or by reason of any other defense which
Holdings, Borrower or any other Credit Party may have on any of the Obligations
or under any of the Loan Documents. Each Equity Investor consents and agrees
that, without notice to or consent by any Equity Investor and without affecting
or impairing the liability of any Equity Investor under this Agreement,
Administrative Agent, Collateral Agent or the Lenders may compromise or settle,
extend the period of duration or the time for the payment, discharge or
performance of any of the Obligations or Loan Documents, or may refuse to
enforce or may release all or any parties to any or all of the Obligations
(including without limitation any guarantor thereof and any Equity Investor
hereunder) or any collateral therefor, or may grant other indulgences to
Borrower or such other parties in respect thereof, or may waive, amend or
supplement in any manner the provisions of any of the Loan Documents or any
other document, instrument or agreement relating to or securing any of the
Obligations (other than this Agreement), or may release, surrender, exchange,
modify, or compromise any and all collateral securing any of the Obligations or
in which any Equity Investor may at any time have a lien, or may refuse to
enforce its rights or may make any compromise or settlement or agreement
therefor, in respect of any and all of such collateral, or with any party to any
of the Obligations or Loan Documents, or with any Equity Investor, or with an
other Person, or may release or substitute any one or more of the other
endorsers or guarantors of the Obligations whether parties to this Agreement or
not, or may exchange, enforce, waive or release any collateral for any of the
Obligations. Each Equity Investor further consents and agrees that neither
Administrative Agent, Collateral Agent nor any Lender shall be under any
obligation to marshal any assets in favor of the Equity Investors or against or
in payment of any of the Obligations.
8. REPRESENTATIONS AND WARRANTIES. In order to induce the Lenders to
continue to make Loans and issue Letters of Credit pursuant to the Credit
Agreement, each of Holdings and each Equity Investor hereby represents and
warrants as of the date hereof to Administrative Agent and the Lenders that:
(a) Such Person (i) is a duly organized and validly existing
corporation, limited liability company or other entity and is in good standing
under the laws of the jurisdiction of its organization, and has all necessary
power and authority to own its property and assets and to transact the business
in which it is engaged and presently proposes to engage and (ii) is duly
qualified and is authorized to do business and is in good standing in each
jurisdiction where the conduct of its business requires such qualification
6
35
except for failures to be so qualified which, individually or in the aggregate,
could not reasonably be expected to have a material adverse effect on such
Person's business, property, assets, nature of assets, liabilities, financial
condition or results of operations (an "MAE").
(b) Such Person has all necessary power and authority to
execute, deliver and perform the terms and provisions of this Agreement and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Agreement. Such Person has duly executed and delivered this
Agreement and this Agreement constitutes the legal, valid and binding obligation
of such Person enforceable in accordance with its terms, except to the extent
that the enforceability hereof or thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
(c) Neither the execution, delivery or performance by such
Person of this Agreement, nor compliance by it with the terms and provisions
hereof (i) will contravene any applicable provision of any law, statute, rule or
regulation, or any applicable order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will conflict with or result in any breach
of, any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of such Person
pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement
or any other agreement, contract or instrument to which such Person or any of
its Subsidiaries is a party or by which it or any of its property or assets is
bound or to which it may be subject or (iii) will violate any provision of the
Organizational Documents of such Person.
(d) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as have been
obtained or made prior to the Third Amendment Effective Date), or exemption by,
any governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with, (i) the execution,
delivery and performance of this Agreement, or (ii) the legality, validity,
binding effect or enforceability of this Agreement with respect to such Person.
(e) There are no actions, suits or proceedings pending or, to
the best knowledge of such Person, threatened with respect to such Person (i)
that could reasonably be expected to have a MAE or (ii) with respect to this
Agreement or on the ability of such Person to perform its respective obligations
hereunder.
9. NOTICES. All such notices and communications hereunder shall be sent
or delivered by telecopier or overnight courier service and all such notices and
communications shall, when telecopied, or sent by overnight courier, be
effective when delivered to the overnight courier, or sent by telecopier, except
that notices and communications to the Administrative Agent shall not be
effective until received by Administrative Agent. All notices, requests, demands
or other communications shall be in writing and addressed as follows:
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36
(a) If to Holdings, Borrower or the Equity Investors:
Xxxxxx Xxxxx & Partners III, L.P.
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Orius Corp.
0000 Xxxxx Xxx
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx and Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Orius Corp.
0000 Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx and Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) if to Administrative Agent:
Bankers Trust Company
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
10. COLLECTION COSTS. Borrower shall be liable to Administrative Agent
for, and shall pay to Administrative Agent on demand, all reasonable costs
(including without limitation reasonable attorney's fees and expenses) incurred
by Administrative Agent in enforcing the terms and conditions of this Agreement.
11. ASSIGNMENT AND TRANSFER. This Agreement shall be binding upon the
Equity Investors and each Equity Investor's successors and permitted assigns and
shall inure to the benefit of and be enforceable by Administrative Agent and its
successors and permitted assigns. Without limiting the generality of the
preceding sentence, pursuant to SECTION 12.8 of the Credit Agreement, any Lender
may assign all or any part of the Obligations, whereupon such assignee shall
become entitled to all of the benefits in respect thereof granted to
Administrative Agent herein. No Equity Investor may assign its duties and
obligations hereunder, however, unless Administrative Agent consents in writing
thereto.
12. 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 LAW RULES.
13. MISCELLANEOUS.
(a) This Agreement constitutes the sole and entire agreement
among the Equity Investors, Holdings, Borrower and Administrative Agent with
respect to the subject matter hereof and supersedes and replaces any and all
prior agreements, understandings, negotiations or correspondence between them
with respect thereto.
(b) Time is of the essence of this Agreement.
(c) Wherever possible, any provision in this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition or
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enforceability without invalidating the remaining provisions hereof, and any
such prohibition or enforceability in any one jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
(d) No amendment or waiver of any provision of this Agreement,
nor consent to any departure by any party hereto, shall be effective or binding
upon any other party hereto unless signed by the Majority Equity Investors and
the Administrative Agent PROVIDED that if any such amendment, waiver or consent
would adversely affect Holdings or Borrower, such amendment, waiver or consent
shall also require the written consent of the party so adversely affected. Any
such amendment, waiver or consent which is so granted by Administrative Agent
shall apply only to the specific occasion which is the subject of such
amendment, waiver or consent and shall not apply to the occurrence of the same
or any similar event on any future occasion. No failure on the part of
Administrative Agent to exercise, and no delay by Administrative Agent in
exercising, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right by Administrative Agent.
Except as expressly provided herein, no notice to or demand on Holdings,
Borrower or any Equity Investor in any case by Administrative Agent hereunder
shall entitle Holdings, Borrower or any Equity Investor to any further notice or
demand in any similar or other circumstances or constitute a waiver of the
rights of Administrative Agent to take any other or future action in any
circumstances without notice or demand. The remedies provided to Administrative
Agent in this Agreement are cumulative and not exclusive of any other remedies
provided by law.
(e) This Agreement may be executed in one or more counterparts
and each such counterpart shall constitute an original and all such counterparts
together shall constitute one and the same instrument.
(f) All Section headings herein are for convenience of
reference only and shall not limit or otherwise affect the meaning or
interpretation of the provisions of this Agreement.
(g) This Agreement is a Loan Document and shall be governed
and construed accordingly.
(h) All Capital Infusions and other payments made by the
Equity Investors hereunder will be made without setoff, counterclaim or other
defense.
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39
14. JURY TRIAL WAIVER; CONSENT TO JURISDICTION AND VENUE. EACH PARTY
HERETO HEREBY WAIVES ANY RIGHT SUCH PARTY MAY HAVE UNDER ANY APPLICABLE LAW TO A
TRIAL BY JURY WITH RESPECT TO ANY SUIT OR LEGAL ACTION WHICH MAY BE COMMENCED BY
OR AGAINST SUCH PARTY CONCERNING THE INTERPRETATION, CONSTRUCTION, VALIDITY,
ENFORCEMENT OR PERFORMANCE OF THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW. IN THE EVENT ANY SUCH SUIT OR LEGAL ACTION IS COMMENCED BY
ADMINISTRATIVE AGENT, HOLDINGS, BORROWER AND THE EQUITY INVESTOR HEREBY
EXPRESSLY AGREE, CONSENT AND SUBMIT TO THE PERSONAL JURISDICTION OF ANY STATE OR
FEDERAL COURT SITTING IN NEW YORK COUNTY, NEW YORK, NEW YORK, WITH RESPECT TO
SUCH SUIT OR LEGAL ACTION, AND HOLDINGS, BORROWER AND THE EQUITY INVESTOR ALSO
EXPRESSLY CONSENT AND SUBMIT TO AND AGREE THAT VENUE IN ANY SUCH SUIT OR LEGAL
ACTION IS PROPER IN SAID COURTS AND COUNTY AND HOLDINGS, BORROWER AND THE EQUITY
INVESTOR HEREBY EXPRESSLY WAIVE ANY AND ALL PERSONAL RIGHTS UNDER APPLICABLE LAW
OR IN EQUITY TO OBJECT TO THE JURISDICTION AND VENUE OF SAID COURTS AND COUNTY.
THE JURISDICTION AND VENUE OF THE COURTS AND COUNTY CONSENTED AND SUBMITTED TO
AND AGREED UPON IN THIS SECTION ARE NOT EXCLUSIVE BUT ARE CUMULATIVE AND IN
ADDITION TO THE JURISDICTION AND VENUE OF ANY OTHER COURT UNDER ANY APPLICABLE
LAW OR IN EQUITY.
[signatures pages follow]
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40
IN WITNESS WHEREOF, the parties hereto have caused this Equity Call
Agreement to be duly executed and delivered by their duly authorized officers as
of the date first above written.
XXXXXX XXXXX & PARTNERS III, L.P.
By: /s/ XXXXXX X. XXXXXXXXXX
-------------------------------------
Name: XXXXXX X. XXXXXXXXXX
Title: MANAGING DIRECTOR
XXXXXX XXXXX & PARTNERS DUTCH III - A, L.P.
By: /s/ XXXXXX X. XXXXXXXXXX
-------------------------------------
Name: XXXXXX X. XXXXXXXXXX
Title: MANAGING DIRECTOR
XXXXXX XXXXX & PARTNERS DUTCH III - B, L.P.
By: /s/ XXXXXX X. XXXXXXXXXX
-------------------------------------
Name: XXXXXX X. XXXXXXXXXX
Title: MANAGING DIRECTOR
XXXXXX XXXXX & PARTNERS III - C, L.P.
By: /s/ XXXXXX X. XXXXXXXXXX
-------------------------------------
Name: XXXXXX X. XXXXXXXXXX
Title: MANAGING DIRECTOR
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ORIUS CORP.
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: XXXXXX X. XXXXX
Title: SENIOR VICE PRESIDENT AND CFO
NATG HOLDINGS, LLC
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: XXXXXX X. XXXXX
Title: SENIOR VICE PRESIDENT AND CFO
BANKERS TRUST COMPANY,
as Administrative Agent
By: /s/ XXXXXX XXXXXXX
-----------------------------------
Name: XXXXXX XXXXXXX
Title: VICE PRESIDENT
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ANNEX A
To Equity Call Agreement
PRO RATA SHARES
EQUITY INVESTOR PRO RATA SHARE
--------------- --------------
Xxxxxx Xxxxx & Partners III, L.P. 93.554930%
Xxxxxx Xxxxx & Partners Dutch III - A, L.P. 2.816901%
Xxxxxx Xxxxx & Partners Dutch III - B, L.P. 2.816901%
Xxxxxx Xxxxx & Partners III - C, L.P. 0.811268%
1
