EXHIBIT 1
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
FORBEARANCE Agreement (this "AGREEMENT"), dated as of January 15, 2002, is by
and among NATG HOLDINGS, LLC, a Delaware limited liability company ("NATG" or
the "BORROWER"), ORIUS CORP., a Florida corporation ("HOLDINGS"), the financial
institutions party to the Credit Agreement (as defined below), in their
capacities as lenders (collectively, the "LENDERS," and each individually, a
"LENDER"), and Bankers Trust Company, as administrative agent (the "AGENT") for
the Lenders.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, Holdings, the Lenders and the Agent are parties
to that certain Amended and Restated Credit Agreement dated as of July 5, 2000
(as heretofore and hereafter amended, restated, supplemented or otherwise
modified and in effect from time to time, the "CREDIT AGREEMENT"), pursuant to
which the Lenders have provided to the Borrower credit facilities and other
financial accommodations;
WHEREAS, the Borrower has informed Agent and the Lenders that the
Unmatured Events of Default and Events of Default described on SCHEDULE I
attached hereto have occurred and/or will occur under the Credit Agreement
(collectively, the "DISCLOSED DEFAULTS" and, individually, each a "DISCLOSED
DEFAULT"); and
WHEREAS, the Credit Parties have requested that the Lenders forbear
from exercising their rights under the Credit Agreement and the other Loan
Documents with respect to the Disclosed Defaults and the Lenders have agreed to
such request subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, and other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. DEFINED TERMS. Terms capitalized herein and not otherwise defined
herein are used with the meanings ascribed to such terms in the Credit
Agreement.
2. AMENDMENT TO CREDIT AGREEMENT. The Credit Agreement is, as of the
Effective Date (as defined below), hereby amended as follows:
(a) SECTION 2.9(A)(I) of the Credit Agreement is amended by deleting
the first sentence of such Section and replacing it with the following:
Subject to and upon the terms and conditions herein set forth
and such other conditions as are applicable to its customers
generally, BT agrees to issue, or cause one of its Affiliates
(including without limitation Deutsche Bank AG, New York
Branch), to issue in its own name (in such capacity, "FACING
AGENT"), but for the ratable benefit of all Revolving Lenders
(including the Facing Agent) at any time and from time to time
on or after the Initial Borrowing Date and prior to the 30th
day preceding the Revolver Termination Date, one or more
Letters of Credit, each having a Stated Amount in Dollars and
each being issued at sight, for the account of Borrower in an
aggregate undrawn amount at any one time outstanding that
together with the aggregate Stated Amount of other Letters of
Credit then outstanding, does not exceed $20,000,000;
PROVIDED, HOWEVER, that (x) Facing Agent shall not be
obligated to issue any Letter of Credit if the aggregate LC
Obligations at such time would exceed $15,000,000, unless
Borrower delivers cash in an amount equal to such excess to
Facing Agent to be held by and in the name of Facing Agent as
cash collateral for the LC Obligations in excess of
$15,000,000 (which cash collateral shall be promptly returned
to Borrower as such excess is reduced unless an Event of
Default has occurred and is continuing and the Required
Lenders have directed the Facing Agent to retain such
collateral), and (y) Facing Agent shall not issue or extend
the expiration of any Letter of Credit if, immediately after
giving effect to such issuance or extension, (A) the aggregate
LC Obligations at such time would exceed $20,000,000, (B) the
Available Revolving Commitment of any Revolving Lender would
be less than zero or (C) the outstanding Working Capital Loans
of all Revolving Lenders, when added to the then outstanding
Swing Line Loans and the aggregate LC Obligations, would
exceed the Working Capital Sublimit.
(b) SECTION 5.2(H) of the Credit Agreement is amended by inserting
the following at the end of such Section but before the period ".":
, provided that the amount of repayment or reduction required
above shall be reduced by the amount of cash collateral
delivered to and held by the Facing Agent pursuant to SECTION
2.9(A)(I)
3. FORBEARANCE. (a) During the Forbearance Period (as defined below),
the Agent, the Collateral Agent, the Facing Agent and the Lenders will not
exercise any of their rights or remedies under the Credit Agreement, the Loan
Documents or applicable law with respect to the Disclosed Defaults other than
delivery of a Payment Blockage Notice, as defined in and pursuant to the terms
and conditions of, the Senior Subordinated Note Indenture, and the enforcement
of any rights with respect to such Payment Blockage Notice and any other actions
reasonably related to the enforcement of such rights. For purposes of this
Agreement, "FORBEARANCE PERIOD" means the period commencing on the Effective
Date and terminating on the earlier of (i) February 28, 2002; (ii) the
occurrence of an Additional Default (as defined below) under the Credit
Agreement; (iii) any payment is made by Borrower or any Credit Party under or in
respect to the Senior Subordinated Note Indenture, the Senior Subordinated
Notes, or any other Senior Subordinated Document; (iv) any representation or
warranty made by any of the Credit Parties under this Agreement or any
agreement, instrument or other document executed or delivered by any of the
Credit Parties in connection with this Agreement is incorrect or misleading in
any material respect when made or deemed made; and (v) the occurrence of (or the
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Lenders' awareness of any facts or conditions previously unknown with respect
to) any adverse change which has, or is reasonably likely to have, a material
adverse effect on (A) the business, financial condition, assets, liabilities,
prospects or results of operations of Holdings and its Subsidiaries taken as a
whole, (B) the ability of any Credit Party to perform its respective obligations
under any Loan Document to which it is a party, or (C) the validity or
enforceability (other than in accordance with its terms) of the Credit Agreement
or any of the Loan Documents or the rights or remedies of Agent, the Collateral
Agent, the Facing Agent and the Lenders thereunder.
(b) Upon the termination of the Forbearance Period as provided
above, the Agent, the Lenders, the Collateral Agent and the Facing Agent shall
be fully entitled to exercise any rights or remedies they may have under the
Credit Agreement, the Loan Documents or applicable law. Nothing herein shall
limit or restrict in any way the rights and remedies of the Agent, any Lender,
the Collateral Agent or the Facing Agent with respect to any Unmatured Event of
Default or Event of Default other than a Disclosed Default (collectively, the
"ADDITIONAL DEFAULTS" and, individually, each an "ADDITIONAL DEFAULT").
(c) Provided that no Additional Default has occurred, the Agent, the
Lenders and the Facing Agent hereby acknowledge that during the Forbearance
Period the Revolving Lenders shall continue to make Revolving Loans that are
Base Rate Loans and the Facing Agent shall continue to issue Letters of Credit
under, and pursuant to the terms and conditions of, the Credit Agreement
notwithstanding the existence of the Disclosed Defaults and the inability to
satisfy the conditions precedent set forth in SECTION 5.2 of the Credit
Agreement due solely to the Disclosed Defaults (it being understood that the
existence of the Disclosed Defaults may be excepted from any Notice of Borrowing
or Letter of Credit Request).
(d) THE BORROWER AND HOLDINGS EXPRESSLY ACKNOWLEDGE AND AGREE THAT
THE FORBEARANCE PROVISION SET FORTH IN THIS SECTION 3 IS EFFECTIVE ONLY DURING
THE FORBEARANCE PERIOD AND THAT, AFTER THE TERMINATION OF THE FORBEARANCE
PERIOD, THE CREDIT AGREEMENT WILL BE IN MATERIAL DEFAULT AND THE AGENT, THE
LENDERS, THE COLLATERAL AGENT AND THE FACING AGENT WILL BE FULLY ENTITLED
IMMEDIATELY TO EXERCISE THEIR RIGHTS AND REMEDIES UNDER THE CREDIT AGREEMENT,
THE LOAN DOCUMENTS OR APPLICABLE LAW WITHOUT REGARD TO ANY MATTERS TRANSPIRING
DURING THE FORBEARANCE PERIOD OR THE FINANCIAL CONDITION OR PROSPECTS OF
HOLDINGS, THE BORROWER AND THEIR RESPECTIVE SUBSIDIARIES. THE BORROWER AND
HOLDINGS UNDERSTAND THAT THE AGENT AND THE LENDERS ARE EXPRESSLY RELYING ON THE
TERMS OF THIS SECTION 3 AND WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR
THE BORROWER'S AND HOLDINGS' ACKNOWLEDGMENT AND AGREEMENT IN THIS SECTION 3.
4. NO WAIVER. Nothing in this Agreement shall in any way be deemed to
be (i) a waiver of any Unmatured Event of Default or Event of Default, including
a Disclosed Default, or (ii) an agreement to forbear from exercising any rights
or remedies with respect to any Unmatured Event of Default or Event of Default
except as specifically set forth in SECTION 3 hereof.
3
5. DELIVERY OF PAYMENT BLOCKAGE NOTICE. The Lenders hereby consent to
the delivery of a Payment Blockage Notice, as defined in and pursuant to the
terms and conditions of, the Senior Subordinated Note Indenture, and hereby
direct the Agent to take all necessary actions as deemed appropriate by the
Agent, including, without limitation, the delivery of a Payment Blockage Notice,
to commence a Payment Blockage Period under the Senior Subordinated Note
Indenture and exercise any rights with respect to such Payment Blockage Notice.
6. 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) Except for any representation or warranty relating to any
Disclosed Default, the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct in all material
respects at and as of the Effective Date as though made on and as of the
Effective Date (except to the extent specifically made with regard to a
particular date, in which case such representation and warranty is true and
correct in all material respects as of such earlier date).
(d) Each of the Borrower's and Holdings' execution, delivery and
performance of this Agreement do not and will not violate its Articles or
Certificate of Incorporation, By-laws or other Organizational Documents, any
law, rule, regulation, order, writ, judgment, decree or award applicable to it
or any contractual provision to which it is a party or to which it or any of its
property is subject.
(e) No authorization or approval or other action by, and no notice
to or filing or registration with, any governmental authority or regulatory body
(other than those which have been obtained and are in force and effect) is
required in connection with the execution, delivery and performance by the
Borrower, Holdings or any other Credit Party of this Agreement and all
agreements, documents and instruments executed and delivered pursuant to this
Agreement.
(f) Except for the Disclosed Defaults, no Event of Default or
Unmatured Event of Default exists under the Credit Agreement.
7. CONDITIONS TO EFFECTIVENESS OF AGREEMENT. This Agreement shall
become effective as of January 15, 2002 (the "EFFECTIVE DATE") upon satisfaction
of the following conditions precedent:
4
(a) EXECUTION AND DELIVERY OF AMENDMENT. The Borrower, Holdings, the
Agent and the Required Lenders shall have executed and delivered this Agreement.
(b) EXECUTION AND DELIVERY OF LOAN DOCUMENTS. The Agent shall have
received each of the following documents, all of which shall be satisfactory in
form and substance to the Agent and its counsel:
(1) a certificate of an officer of Holdings and the Borrower in
the form of EXHIBIT A attached hereto, duly executed and delivered
by Holdings and the Borrower;
(2) a Reaffirmation of Guaranty in the form of EXHIBIT B
attached hereto, duly executed and delivered by Holdings and the
Subsidiary Guarantors; and
(3) an Amendment and Reaffirmation of Equity Call Agreement in
the form of EXHIBIT C attached hereto, duly executed and delivered
by the Agent, Holdings, Borrower and the Equity Investors.
(c) NO DEFAULTS. Except for the Disclosed Defaults, no Event of
Default or Unmatured Event of Default under the Credit Agreement shall have
occurred and be continuing.
(d) REPRESENTATIONS AND WARRANTIES. Except for any representation or
warranty relating to any Disclosed Default, after giving effect to this
Agreement, the representations and warranties of the Borrower, Holdings and the
other Credit Parties contained in this Agreement, the Credit Agreement and the
other Loan Documents shall be true and correct in all material respects as of
the Effective Date, with the same effect as though made on such date, except to
the extent that any such representation or warranty relates to an earlier date,
in which case such representation or warranty shall be true and correct in all
material respects as of such earlier date.
(e) FEES. Borrower shall have paid all reasonable costs, fees and
expenses (including, without limitation, reasonable legal fees and expenses of
Winston & Xxxxxx (including a retainer of $100,000 for future fees and expenses)
and the costs, fees and expenses referred to in SECTION 9(A) hereof and SECTION
12.4 of the Credit Agreement) of the Agent.
(f) OTHER MATTERS. Agent shall have received such other instruments
and documents as Agent or the Required Lenders may reasonably request in
connection with the execution of this Agreement, and all such instruments and
documents shall be reasonably satisfactory in form and substance to Agent.
8. CONSENT OF REQUIRED LENDERS. The Required Lenders hereby consent to
the terms of the Amendment and Reaffirmation of Equity Call Agreement in the
form attached hereto as EXHIBIT C.
9. 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
5
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 set
forth to the contrary herein, this Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the Borrower, Holdings,
the Agent and the Lenders and their respective successors and permitted assigns.
(g) AMENDMENT; WAIVER. The parties hereto agree and acknowledge that
nothing contained in this Agreement in any manner or respect limits or
terminates any of the provisions of the Credit Agreement or any of the other
Loan Documents other than as expressly set forth herein and further agree and
acknowledge that the Credit Agreement (as amended hereby) and each of the other
Loan Documents remain and continue in full force and effect and are hereby
ratified and confirmed. Except to the extent expressly set forth herein, the
execution, delivery and effectiveness of this Agreement shall not operate as an
amendment of any rights, power or remedy of the Lenders or the Agent under the
Credit Agreement or any other Loan Document, nor constitute an amendment of any
provision of the Credit Agreement or any other Loan Document. No delay on the
part of any Lender or the Agent in exercising any of their respective rights,
remedies, powers and privileges under the Credit Agreement or any of the Loan
Documents or partial or single exercise thereof, shall constitute an amendment
6
thereof. On and after the Effective Date each reference in the Credit Agreement
to "this Agreement," "hereunder," "hereof," "herein" or words of like import,
and each reference to the Credit Agreement in the Loan Documents and all other
documents delivered in connection with the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended hereby. The Borrower and Holdings
acknowledge and agree that this Agreement constitutes a "Loan Document" for
purposes of the Credit Agreement, including, without limitation, SECTION 10.1 of
the Credit Agreement. None of the terms and conditions of this Agreement may be
changed, waived, modified or varied in any manner, whatsoever, except in
accordance with SECTION 12.1 of the Credit Agreement.
(h) TOLLING. Any and all statutes of limitations, repose or similar
legal constraints on the time by which a claim must be filed, a person given
notice thereof, or asserted, that expire, run or lapse during the Forbearance
Period on any claims that any Lender may have against the Credit Parties or any
other persons relating to any Credit Party (collectively, the "FORBEARANCE
PERIOD STATUTES OF LIMITATION") will be tolled during the Forbearance Period.
The Credit Parties waive any defense they may have against the Lenders under the
Forbearance Period Statutes of Limitation, applicable law or otherwise solely as
to the expiration, running or lapsing of the Forbearance Period Statutes of
Limitation during the Forbearance Period.
(i) RELEASE. Each of the Borrower and Holdings hereby knowingly and
voluntarily releases and forever discharges the Agent, the Collateral Agent, the
Facing Agent and the Lenders and all present and former directors, officers,
agents, representatives, employees, successors and assigns of the Agent, the
Collateral Agent, the Facing Agent and each Lender and their direct and indirect
owners (collectively, the "RELEASED PARTIES") from any and all claims,
controversies, actions, causes of action, cross-claims, counter-claims, demands,
debts, compensatory damages, liquidated damages, punitive or exemplary damages,
other damages, claims for costs and attorneys' fees, or liabilities of any
nature whatsoever in law and in equity, both past and present and whether known
or unknown, suspected, or claimed against any Released Party which Holdings, the
Borrower or any of their respective Affiliates or Subsidiaries may have as of
the date of this Agreement.
(j) ACKNOWLEDGMENT REGARDING CASH COLLATERAL. The Borrower,
Holdings, the Agent and the Lenders hereby acknowledge and agree that the amount
of any cash collateral held by the Collateral Agent or the Facing Agent shall
not constitute Available Cash for purposes of SECTION 5.2(H) 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: PRESIDENT AND CEO
-------------------------------------
NATG HOLDINGS, LLC
By: /s/ XXXXXX X. XXXXX
---------------------------------------
Name: XXXXXX X. XXXXX
--------------------------------------
Title: PRESIDENT AND CEO
-------------------------------------
8
ORIUS CORP.
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: XXXXXX X. XXXXX
------------------------------------
Title: PRESIDENT AND CEO
-----------------------------------
NATG HOLDINGS, LLC
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: XXXXXX X. XXXXX
------------------------------------
Title: PRESIDENT AND CEO
-----------------------------------
9
BANKERS TRUST COMPANY,
individually and as Agent
By: /s/ XXXX XX XXXXX
-------------------------------------
Name: XXXX XX XXXXX
-----------------------------------
Title: ASSISTANT VICE PRESIDENT
----------------------------------
10
BANK OF AMERICA, N.A.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXXX X. XXXXXXX
---------------------------------------
Title: PRINCIPAL
--------------------------------------
11
FIRST UNION NATIONAL BANK
By: /s/ XXXXXXXXX X. XXXXXX
--------------------------------
Name: XXXXXXXXX X. XXXXXX
------------------------------
Title: DIRECTOR
----------------------------
00
XXXXXXXX XXXX XXXX, XXXXXXXXX
By: /s/ XXXX XXXXXX
--------------------------------
Name: XXXX XXXXXX
--------------------------
Title: ASSISTANT VICE PRESIDENT
----------------------------
13
SUNTRUST BANK
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
14
UNION PLANTERS BANK NA
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
15
WACHOVIA BANK, N.A.
By: /s/ XXXXXXXXX X. XXXXXX
-----------------------------------------
Name: XXXXXXXXX X. XXXXXX
-----------------------------------------
Title: DIRECTOR
-----------------------------------------
16
BNP PARIBAS
By: /s/ XXXXXXXXX XXXXXX
---------------------------------------
Name: XXXXXXXXX XXXXXX
---------------------------------------
Title: VICE PRESIDENT
---------------------------------------
By: /s/ XXXXX X. XXXXXXXXX
---------------------------------------
Name: XXXXX X. XXXXXXXXX
---------------------------------------
Title: DIRECTOR
---------------------------------------
17
PROMETHEUS INVESTMENT FUNDING NO. 1 LTD.
By: CPF Asset Advisory, LLC, as
Investment Manager
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
18
XXXXXX FINANCIAL, INC.
By: /s/ XXXXXX X. XXXX
--------------------------------------
Name: XXXXXX X. XXXX
--------------------------------------
Title: ASSISTANT VICE PRESIDENT
--------------------------------------
19
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ XXXXXXX X. LENSA
-----------------------------------------
Name: XXXXXXX X. LENSA
-----------------------------------
Title: VICE PRESIDENT
-------------------------------------
XXX XXXXXX SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ XXXXXXX X. LENSA
-----------------------------------------
Name: XXXXXXX X. LENSA
-----------------------------------
Title: VICE PRESIDENT
-------------------------------------
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ XXXXXXX X. LENSA
-----------------------------------------
Name: XXXXXXX X. LENSA
-----------------------------------
Title: VICE PRESIDENT
-------------------------------------
20
PPM SPYGLASS FUNDING TRUST
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. XXXXXXX
-----------------------------------
Title: AUTHORIZED AGENT
-------------------------------------
WINGED FOOT FUNDING TRUST
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. XXXXXXX
-----------------------------------
Title: AUTHORIZED AGENT
-------------------------------------
21
FREMONT INVESTMENT & LOAN
By:
------------------------------------
Name:
------------------------------
Title:
--------------------------------
22
LIBERTY-XXXXX XXX ADVISOR FLOATING RATE
ADVANTAGE FUND
By: Xxxxx Xxx & Xxxxxxx Incorporated,
As Advisor
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. XXXXXXX
-----------------------------------
Title: SR. VICE PRESIDENT AND
----------------------------
PORTFOLIO MANAGER
-------------------------------------
SRF TRADING, INC.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. XXXXXXX
-----------------------------------
Title: ASST. VICE PRESIDENT
-----------------------------------
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. XXXXXXX
-----------------------------------
Title: SENIOR VICE PRESIDENT, XXXXX XXX &
-------------------------------------
FARNHAM INCORPORATED AS ADVISOR TO
-------------------------------------
THE XXXXX XXX FLOATING RATE LIMITED
-------------------------------------
LIABILITY COMPANY
-------------------------------------
Xxxxx Xxx & Farnham Incorporated as Agent for
KEYPORT LIFE INSURANCE COMPANY
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. XXXXXXX
-----------------------------------
Title: SR. VICE PRESIDENT AND
-------------------------------------
PORTFOLIO MANAGER
-------------------------------------
23
XXXXX XXX & XXXXXXX CLO I LTD.
By: Xxxxx Xxx & Farnham Incorporated
as Portfolio Manager
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. XXXXXXX
-----------------------------------
Title: SR. VICE PRESIDENT AND
-------------------------------------
PORTFOLIO MANAGER
-------------------------------------
24
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital as Portfolio Advisor
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
25
CARLYLE HIGH YIELD FUND, L.P.
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
CARLYLE HIGH YIELD PARTNERS II, LTD.
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
26
MAPLEWOOD (CAYMAN) LIMITED
By: Xxxxx X. Xxxxxx & Company Inc. under
delegated authority from Massachusetts
Mutual Life Insurance Company as
Investment Manager
By: /s/ XXXXXXX X. XXXXXXXX
----------------------------------------
Name: XXXXXXX X. XXXXXXXX
----------------------------------------
Title: MANAGING DIRECTOR
----------------------------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc.
as Investment Advisor
By: /s/ XXXXXXX X. XXXXXXXX
----------------------------------------
Name: XXXXXXX X. XXXXXXXX
----------------------------------------
Title: MANAGING DIRECTOR
----------------------------------------
PERSEUS CDO, I LIMITED
By: X.X. Xxxxxx & Co. Inc.
By: /s/ XXXXXXX X. XXXXXXXX
----------------------------------------
Name: XXXXXXX X. XXXXXXXX
----------------------------------------
Title: MANAGING DIRECTOR
----------------------------------------
SAAR HOLDINGS CDO LIMITED
By: X.X. Xxxxxx & Co. Inc.
By: /s/ XXXXXXX X. XXXXXXXX
----------------------------------------
Name: XXXXXXX X. XXXXXXXX
----------------------------------------
Title: MANAGING DIRECTOR
----------------------------------------
27
SIMSBURY CLO, LIMITED
By: Xxxxx X. Xxxxxx & Company Inc. under delegated
authority from Massachusetts Mutual
Life Insurance
Company as Investment Manager
By: /s/ XXXXXXX X.XXXXXXXX
----------------------------------------------
Name: XXXXXXX X. XXXXXXXX
----------------------------------------------
Title: MANAGING DIRECTOR
----------------------------------------------
SUFFIELD CLO LTD
By: X.X. Xxxxxx & Co. Inc.
By: /s/ XXXXXXX X. XXXXXXXX
----------------------------------------------
Name: XXXXXXXX X. XXXXXXXX
----------------------------------------------
Title: MANAGING DIRECTOR
----------------------------------------------
28
PILGRIM CLO 1999-1 LTD
By: Pilgrim Investments, Inc., as its
investment manager
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
29
AIMCO CDO SERIES 2000-A
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
ALLSTATE LIFE INSURANCE COMPANY
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
30
FIRST DOMINION FUNDING II
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
FIRST DOMINION FUNDING III
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
31
KATONAH I, LTD.
By:
-----------------------------------------
Name:
-----------------------------------
Title:
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KATONAH II, LTD.
By:
-----------------------------------------
Name:
-----------------------------------
Title:
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32
KZH CNC LLC
By:
-----------------------------------------
Name:
-----------------------------------
Title:
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KZH STERLING LLC
By:
-----------------------------------------
Name:
-----------------------------------
Title:
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33
MAGNETITE ASSET INVESTORS LLC
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
34
GREAT POINT CLO 1999-1 LTD., as Term Lender
By: Sankaty Advisors, Inc., as Collateral
Manager
By: /s/ XXXXX X. XXXXX
-----------------------------------------
Name: XXXXX X. XXXXX
-----------------------------------
Title: SR. VICE PRESIDENT
-------------------------------------
SANKATY HIGH YIELD PARTNERS II, L.P.
By: /s/ XXXXX X. XXXXX
-----------------------------------------
Name: XXXXX X. XXXXX
-----------------------------------
Title: SR. VICE PRESIDENT
-------------------------------------
35
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Name: XXXXX X. XXXXXX
-----------------------------------
Title: VICE PRESIDENT
-------------------------------------
36
LONGLANE MASTER TRUST IV
By: Fleet National Bank as Trust Administrator
By: /s/ XXXXX XXXXX
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Name: XXXXX XXXXX
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Title: MANAGING DIRECTOR
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37
SCHEDULE I
DISCLOSED DEFAULTS
1. The failure to comply with SECTIONS 9.2, 9.3 AND 9.4 of the Credit
Agreement for the Test Periods ending September 30, 2001 and December
31, 2001.
2. Any Event of Default or Unmatured Event of Default resulting from any
breach of the representation and warranty set forth in the last
sentence of SECTION 6.5(A) of the Credit Agreement based upon the
financial statements of Holdings delivered to the Lenders prior to the
Effective Date for the months of July, August, September, October and
November 2001, the projections delivered to the Agent on September 21,
2001 and other written information delivered to the Agent and
distributed by the Agent to the Lenders prior to the Effective Date.
3. An Unmatured Event of Default or Event of Default under SECTION 10.1(G)
of the Credit Agreement or any breach of SECTION 7.4 of the Credit
Agreement resulting from the Borrower's failure to make the payment of
interest under the Senior Subordinated Notes due on February 1, 2002.
4. The failure to deliver copies of all Form 8-Ks within 10 days after
filing with the SEC in accordance with SECTION 7.2(F) of the Credit
Agreement.
5. The failure to notify Agent prior to opening new Deposit Accounts in
accordance with SECTION 8.19 of the Credit Agreement.
6. The failure to deliver to the Collateral Agent certain promissory notes
in the principal amount of approximately $250,000 and $124,000 in
accordance with SECTION 3.2 of the Pledge Agreement.
7. Any Event of Default or Unmatured Event of Default resulting from the
breach of any representation and warranty related to any of the
Disclosed Defaults set forth in items 1-6 above.
EXHIBIT A
CERTIFICATE OF OFFICER
I, the undersigned, Chief Executive Officer of NATG Holdings,
LLC, a Delaware limited liability company (the "BORROWER"), and Orius Corp., a
Florida corporation ("HOLDINGS"), in accordance with SECTION 7(B) of that
certain Fifth Amendment to Amended and Restated Credit Agreement and Forbearance
Agreement dated as of January 15, 2002 (the "AGREEMENT") among Holdings, the
Borrower, Bankers Trust Company, as Agent, and the financial institutions party
to the Credit Agreement (as defined in the Agreement), do hereby certify on
behalf of the Borrower and Holdings and not in my individual capacity, the
following:
1. The representations and warranties set forth in SECTION 6
of the Agreement are true and correct in all material respects
as of the date hereof except to the extent such
representations and warranties are expressly made as of a
specified date in which event such representations and
warranties were true and correct in all material respects as
of such specified date;
2. Except for the Disclosed Defaults, no Event of Default or
Unmatured Event of Default has occurred and is continuing
after giving effect to the Agreement; and
3. The conditions of SECTION 7 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 15th day of January, 2002.
ORIUS CORP. NATG HOLDINGS, LLC
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: PRESIDENT AND CEO Title: PRESIDENT AND CEO
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EXHIBIT B
REAFFIRMATION OF GUARANTEE
Each of the undersigned acknowledges receipt of a copy of the Fifth
Amendment to Amended and Restated Credit Agreement and Forbearance Agreement
(the "AGREEMENT"; capitalized terms used herein shall, unless otherwise defined
herein, have the meanings provided in the Agreement) dated as of January 15,
2002, by and among Orius Corp., a Florida corporation, NATG Holdings, LLC, a
Delaware limited liability company, Bankers Trust Company, as administrative
agent, and the financial institutions party to the Credit Agreement (as defined
in the Agreement) as Lenders, consents to such Agreement and each of the
transactions referenced in the Agreement and hereby reaffirms its obligations
under the Holdings Guaranty or Subsidiary Guaranty, as applicable.
Dated as of January 15, 2002.
ORIUS CORP.
By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX
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Title: PRESIDENT AND CEO
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CATV SUBSCRIBER SERVICES, INC. CABLEMASTERS CORP.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: DIRECTOR Title: DIRECTOR
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CHANNEL COMMUNICATIONS, INC. EXCEL CABLE CONSTRUCTION, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: DIRECTOR Title: DIRECTOR
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DAS-CO OF IDAHO, INC. ORIUS INFORMATION TECHNOLOGIES, LLC
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: DIRECTOR Title: DIRECTOR
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U.S. CABLE, INC. NETWORK CABLING SERVICES, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: DIRECTOR Title: DIRECTOR
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COPENHAGEN UTILITIES & CONSTRUCTION, INC. XXXXXX UNDERGROUND CABLE, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: DIRECTOR Title: DIRECTOR
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TEXEL CORPORATION FENIX TELECOMMUNICATIONS
SERVICES, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: DIRECTOR Title: DIRECTOR
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FENIX TELECOM SERVICES LIMITED PARTNERSHIP FENIX HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: DIRECTOR Title: DIRECTOR
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XXXXX TELECOM SERVICES, X.X. XXXXX TELECOM HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: DIRECTOR Title: DIRECTOR
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XXXXX TELECOM SERVICES, INC. MIDWEST SPLICING &
ACTIVATION, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: DIRECTOR Title: DIRECTOR
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2
HATTECH, INC. ORIUS CAPITAL CORP.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: DIRECTOR Title: DIRECTOR
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LISN COMPANY LISN, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: DIRECTOR Title: DIRECTOR
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ARION SUB, INC. NETWORK CABLING HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: DIRECTOR Title: DIRECTOR
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NETWORK COMPREHENSIVE TELECOM, L.P. QMW COMMUNICATIONS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
--------------------------------- ----------------------------
Title: DIRECTOR Title: DIRECTOR
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ORIUS TELECOM SERVICES, INC. ORIUS HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
--------------------------------- ----------------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
--------------------------------- ----------------------------
Title: DIRECTOR Title: DIRECTOR
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ORIUS BROADBAND SERVICES, INC. ORIUS TELECOMMUNICATION
SERVICES, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
--------------------------------- ----------------------------
Title: DIRECTOR Title: DIRECTOR
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ORIUS CENTRAL OFFICE SERVICES, INC. ORIUS TELECOM PRODUCTS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: DIRECTOR Title: DIRECTOR
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3
ORIUS INTEGRATED PREMISE SERVICES, INC. ORIUS TELECOMMUNICATION
HOLDINGS (WI), INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: DIRECTOR Title: DIRECTOR
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ORIUS TELECOMMUNICATION SERVICES (WI), LP ORIUS TELECOMMUNICATION
SERVICES (WI), INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
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Title: DIRECTOR Title: DIRECTOR
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4
EXHIBIT C
AMENDMENT AND REAFFIRMATION OF EQUITY CALL AGREEMENT
Each of the undersigned acknowledges receipt of a copy of the Fifth
Amendment to Amended and Restated Credit Agreement and Forbearance Agreement
(the "FIFTH AMENDMENT"; capitalized terms used herein shall, unless otherwise
defined herein, have the meanings provided in the Fifth Amendment) dated as of
January 15, 2002, by and among Orius Corp., a Florida corporation, NATG
Holdings, LLC, a Delaware limited liability company, Bankers Trust Company, as
administrative agent, and the financial institutions party to the Credit
Agreement (as defined in the Fifth Amendment) as Lenders, consents to such Fifth
Amendment and each of the transactions and matters contemplated under the Fifth
Amendment and hereby reaffirms its obligations under the Equity Call Agreement
(as defined in the Credit Agreement).
Each Equity Investor, Holdings and Borrower hereby acknowledge and
agree that the Equity Call Agreement shall continue in full force and effect and
that all of its obligations thereunder shall be valid and enforceable and shall
not be impaired or affected by the execution or effectiveness of the Fifth
Amendment. Each Equity Investor, Holdings and Borrower represent and warrant
that all representations and warranties applicable to it contained in the Equity
Call Agreement are true, correct and complete in all material respects on and as
of the Effective Date, to the same extent as though made on and as of that date
(except to the extent that such representation and warranty specifically relates
to an earlier date, in which case such representation and warranty is true and
correct in all material respects as of such earlier date).
Each Equity Investor, Holdings, and Borrower additionally hereby
acknowledge and agree that each Equity Investor's obligation to make Capital
Infusions under the Equity Call Agreement is not conditioned upon the
performance of any obligations, material or otherwise, by Holdings or Borrower,
and that there are no obligations on the part of Holdings or Borrower the
failure of which to perform would excuse any Equity Investor's obligation to
make Capital Infusions thereunder.
Furthermore, each Equity Investor hereby acknowledges that its
individual obligation to remit to the Agent the proceeds of a Capital Infusion
made pursuant to a Payment Default or a Trigger Event pursuant to clause (i) of
the definition of Trigger Date, or remit to Holdings and Borrower the proceeds
of any other Capital Infusion, including following a Bankruptcy or Insolvency
Event, shall remain in full force and effect notwithstanding the fact whether
the Equity Call Agreement is rejected or otherwise deemed unenforceable in any
bankruptcy or insolvency proceeding of Holdings or Borrower. Each Equity
Investor, Holdings and Borrower expressly acknowledge and agree that the Agent
is an intended beneficiary of each Equity Investor's obligation to make a
Capital Infusion pursuant to the terms of the Equity Call Agreement, and the
Equity Call Agreement may, following a Bankruptcy or Insolvency Event (as
defined in the Equity Call Agreement), be enforced by the Agent or by a
bankruptcy trustee or debtor-in-possession.
Each Equity Investor acknowledges and agrees that (i) notwithstanding
the conditions to effectiveness set forth in the Fifth Amendment, each Equity
Investor is not required by the terms of the Credit Agreement or any other Loan
Document to consent to the Fifth Amendment and (ii) nothing in the Credit
Agreement, the Fifth Amendment or any other Loan Document shall be deemed to
require the consent of any Equity Investor to any future amendment to the Credit
Agreement or any other Loan document (other than the Equity Call Agreement).
Each Equity Investor, Holdings, Borrower and Administrative Agent agree
that the Equity Call Agreement is hereby amended by deleting the definition of
"Availability" in SECTION 1 of the Equity Call Agreement and replacing it with
the following:
"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 (provided that solely for
purposes of determining Availability under this Agreement, LC
Obligations shall be reduced by the aggregate amount of cash collateral
held by the Facing Agent pursuant to SECTION 2.9(A)(I) of the Credit
Agreement) 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 (but taking into account the Lenders' agreement to
lend notwithstanding any disclosed defaults as set forth in any
forbearance or other similar agreement entered into from time to time).
Dated as of January 15, 2002.
ORIUS CORP. XXXXXX XXXXX & PARTNERS III, L.P.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXXXXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXXXXXXX
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Title: PRESIDENT AND CEO Title: MANAGING DIRECTOR
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NATG HOLDINGS, LLC XXXXXX XXXXX & PARTNERS DUTCH
III-A, L.P.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXXXXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXXXXXXX
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Title: PRESIDENT AND CEO Title: MANAGING DIRECTOR
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2
BANKERS TRUST COMPANY, XXXXXX XXXXX & PARTNERS DUTCH
as Administrative Agent III-B, L.P.
By: /s/ XXXX XX XXXXX By: /s/ XXXXXX X. XXXXXXXXXX
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Name: XXXX XX XXXXX Name: XXXXXX X. XXXXXXXXXX
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Title: ASSISTANT VICE PRESIDENT Title: MANAGING DIRECTOR
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XXXXXX XXXXX & PARTNERS III-C, L.P.
By: /s/ XXXXXX X. XXXXXXXXXX
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Name: XXXXXX X. XXXXXXXXXX
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Title: MANAGING DIRECTOR
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