Exhibit 10.3
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Agreement"), dated as of November 20, 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. Amendments to Credit Agreement. The Credit Agreement is, as of the
Effective Date (as defined below), hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is amended by inserting
the following new definitions in the appropriate alphabetical order:
"Borrower Request" shall have the meaning provided in the Equity
Call Agreement.
"Capital Infusion" shall have the meaning provided in the Equity
Call Agreement.
"Capital Infusion Availability Ratio" means, on any date of
determination, the ratio of (i) the aggregate amount of the proposed
Capital Infusion to be requested on such date to (ii) the Maximum Infusion
Balance on such date prior to giving effect to such Capital Infusion.
"Equity Call Notice" shall have the meaning provided in the Equity
Call Agreement.
"Equity Investors" shall have the meaning provided in the Equity
Call Agreement.
"Fourth Amendment" means that certain Fourth Amendment to Amended
and Restated Credit Agreement dated as of November 20, 2001 by and among
Borrower, Holdings, Agent and the Lenders.
"Fourth Amendment Effective Date" means the "Effective Date" as
defined in the Fourth Amendment.
"Maximum Infusion Amount" shall have the meaning provided in the
Equity Call Agreement.
"Maximum Infusion Balance" shall have the meaning provided in the
Equity Call Agreement.
"Revolving Loan Availability Ratio" means, on any date of
determination, the ratio of (i) the aggregate principal amount of the
proposed Loan or the Stated Amount of the proposed Letter of Credit to be
requested on such date to (ii) the Total Available Revolving Commitment
prior to giving effect to such Loan or Letter of Credit.
"Trigger Date" means the earliest to occur of (i) the date on which
any Unmatured Event of Default or Event of Default occurs after the Fourth
Amendment Effective Date, (ii) the date on which the Total Available
Revolving Commitment (after giving effect to any Loans or Letters of
Credit requested to be made or issued on such date) is less than
$19,000,000 and (iii) the date on which any Working Capital Loan made on
or after the Fourth Amendment Effective Date (excluding any such Working
Capital Loan that is made if, immediately after giving effect to the
funding thereof, the Total Available Revolving Commitment is equal to or
greater than $22,000,000) has remained outstanding in whole or in part for
fifteen (15) Business Days.
"Trigger Event" shall have the meaning provided in the Equity Call
Agreement.
(b) Section 2.1(c) of the Credit Agreement is amended by inserting
a new sentence at the conclusion thereof to read as follows:
Notwithstanding anything to the contrary in the foregoing paragraph, Swing
Line Lender shall not make, and Borrower shall not request, any Swing Line
Loans on or after the Fourth Amendment Effective Date.
(c) Section 4.4 of the Credit Agreement is amended by inserting
new clauses (i) and (j) at the conclusion thereof to read as follows:
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(i) Mandatory Prepayment Upon Trigger Event. Within twelve (12)
Business Days following delivery to the Equity Investors of an Equity Call
Notice pursuant to a Trigger Event resulting from clause (i) of the
definition of Trigger Date in accordance with the Equity Call Agreement,
an amount equal to 100% of the Capital Infusion requested in such Equity
Call Notice shall be applied as a mandatory repayment of principal of
Working Capital Loans (notwithstanding anything to the contrary regarding
the application of such prepayment in Section 4.5(a)) and, within the
Working Capital Loans, first to the payment of Base Rate Loans and second
to the payment of Eurodollar Loans, in such order as Borrower shall
request (and in the absence of such request, as Agent shall determine so
as to minimize, if possible, any amounts due under Section 3.5).
(j) Mandatory Prepayment With Excess Available Cash. Borrower
shall on each Monday (or the next succeeding Business Day if Monday is not
a Business Day) (i) deliver a certificate of a Responsible Officer
certifying as to the average daily aggregate amount of Cash and Cash
Equivalents calculated for the prior week (using the aggregate amount of
Cash and Cash Equivalents as of the end of each Business Day in the prior
week) (such amount being referred to herein as the "Average Cash Amount")
and (ii) make a mandatory repayment in an amount (if positive) equal to
the Average Cash Amount minus $23,000,000, such repayment applied first as
a mandatory repayment of principal of Working Capital Loans, second for
cash collateralization of LC Obligations and third for deposit in the Cash
Collateral Account (as defined in the Security Agreement) (notwithstanding
anything to the contrary regarding the application of such prepayment in
Section 4.5(a)) and, within the Working Capital Loans, first to the
payment of Base Rate Loans and second to the payment of Eurodollar Loans,
in such order as Borrower shall request (and in the absence of such
request, as Agent shall determine so as to minimize, if possible, any
amounts due under Section 3.5). Borrower, Agent and Lenders acknowledge
and agree that the amount of Cash and Cash Equivalents shall exclude the
Excess Income Tax Refund (as defined in Section 4(h) of the Fourth
Amendment), to the extent included therein.
(d) Section 5.2 of the Credit Agreement is amended by inserting
new clauses (f), (g) and (h) immediately following clause (e) thereof to read as
follows:
(f) Equity Call. Prior to the making of each Loan and the issuance
of each Letter of Credit on and after the Trigger Date and prior to the
date that the Maximum Infusion Amount has been fully invested by the
Equity Investors in accordance with the Equity Call Agreement, Agent shall
have received a copy of an Equity Call Notice that has been delivered to
the Equity Investors in accordance with clause (ii) of the first sentence
appearing in Section 2 of the Equity Call Agreement, which Equity Call
Notice shall constitute a Borrower Request for a Capital Infusion in an
amount necessary for the Revolving Loan Availability Ratio and the Capital
Infusion Availability Ratio to be equaled as nearly as possible (subject
to rounding) with respect to such requested Loan or
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Letter of Credit; provided, however, that the Equity Call Notice required
to be delivered with the first Loan or Letter of Credit requested to be
made or issued on or after the Trigger Date will be required to provide
for a Capital Infusion in an amount necessary for the Revolving Loan
Availability Ratio and the Capital Infusion Availability Ratio to be
equalized as nearly as possible (subject to rounding) with respect to such
requested Loan or Letter of Credit treating all Loans and Letters of
Credit made or issued on or after the Fourth Amendment Effective Date that
remain outstanding on the Trigger Date as having been requested, and all
fully invested Capital Infusions pursuant to clause (vi) of the first
sentence appearing in Section 2 of the Equity Call Agreement as having
been made, on such date rather than on dates actually requested or made
for purposes of determining the Revolving Loan Availability Ratio and
Capital Infusion Availability Ratio.
(g) Trigger Date Calculation. At any time prior to the making of
each Loan and the issuance of each Letter of Credit before the Trigger
Date, Agent shall have received a certificate executed by a Responsible
Officer of the Borrower setting forth the date of funding and amount of
each Working Capital Loan made on or after the Fourth Amendment Effective
Date and the date and amount of each repayment thereof, and any other
calculations or information necessary to establish to the reasonable
satisfaction of Agent that the Trigger Date has not occurred.
(h) Maximum Available Cash. Prior to the making of each Loan and
the issuance of each Letter of Credit, Agent shall have received a
certificate executed by a Responsible Officer of Borrower (i) setting
forth the date of funding or issuance, (ii) certifying as to the aggregate
amount of Cash and Cash Equivalents of Holdings and its Subsidiaries on
the date of such funding or issuance after giving effect to such funding
or issuance and after giving effect to any Capital Infusion required to be
requested due to such funding, if any, (such amount calculated in
accordance with this clause (ii) being referred to herein as "Available
Cash") and (iii) certifying that Available Cash as of the date of funding
or issuance is not greater than $15,000,000; provided, that,
notwithstanding the foregoing, with respect to a request for the issuance
of a Letter of Credit, Available Cash may exceed $15,000,000 if,
contemporaneously with the request for issuance or the issuance of such
Letter of Credit, Borrower repays Working Capital Loans and/or reduces the
aggregate Stated Amount of the then outstanding Letters of Credit in an
amount equal to the Stated Amount of such Letter of Credit (it being
understood that the notice and minimum amount/increment requirements of
Section 4.3(a) shall not apply to such prepayment).
(e) Section 5.2 of the Credit Agreement is further amended by
deleting the last sentence appearing in such Section in its entirety and
substituting the following therefor:
The acceptance of the benefits of each such Credit Event by Borrower
shall be deemed to constitute a representation and warranty by them to the
effect
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of paragraphs (a), (b), (c), (d), (f), (g) and (h) of this Section 5.2
(except that no opinion need be expressed as to the Agent's or Required
Lenders' satisfaction with any documents, instrument or other matter).
(f) Section 6.5(b) of the Credit Agreement is amended by deleting
the phrase "On and as of the Restatement Date, after" appearing in the first
line thereof and substituting "After" therefor.
(g) Section 6.11(c) of the Credit Agreement is amended by deleting
the phrase "on the Restatement Date" in the second sentence thereof and
inserting in lieu thereof the phrase "on the Fourth Amendment Effective Date".
(h) Section 6.14 of the Credit Agreement is amended by deleting
the phrase "As of the Restatement Date" in the second and third sentence thereof
and inserting in lieu thereof the phrase "As of the Fourth Amendment Effective
Date".
(i) Section 6.15(b) of the Credit Agreement is amended by deleting
the phrase "as of the Restatement Date" in the first sentence thereof and
inserting in lieu thereof the phrase "as of the Fourth Amendment Effective
Date".
(j) Article VI of the Credit Agreement is further amended by
inserting a new Section 6.25 at the conclusion thereof to read as follows:
Section 6.25 Bonding Agreements. As of November 15, 2001, Schedule
6.25 hereto sets forth all outstanding bonding arrangements to which any
Credit Party is party and includes a description of each bond issued for
the benefit of any Credit Party, the amount and term of such bond and the
project to which such bond relates.
(k) Article VII of the Credit Agreement is amended by inserting
new Sections 7.19 and 7.20 at the conclusion thereof to read as follows:
Section 7.19 Trigger Event Equity Call Notice. On any Trigger Date
pursuant to clause (i) or (iii) of the definition thereof, Borrower shall
deliver an Equity Call Notice to the Equity Investors in accordance with
Section 2 of the Equity Call Agreement.
Section 7.20 Financial Advisor; Budget and Projections. As soon as
possible and in any event no later than December 20, 2001, Borrower shall
(i) retain a financial advisor to assist Holdings and its Subsidiaries in
formulating a financial restructuring plan for Holdings and its
Subsidiaries and (ii) deliver to Agent and Lenders an annual budget and
projections for the 2002 fiscal year meeting the requirements set forth in
Section 7.1(e) and also including a plan for restructuring the debt and
equity of Holdings and its Subsidiaries.
(l) Article VIII of the Credit Agreement is amended by inserting
new Sections 8.19 and 8.20 at the conclusion thereof to read as follows:
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Section 8.19 Deposit Accounts. Holdings will not, and will not
permit any other Credit Party to, open or establish any Deposit Account
(as defined in the Uniform Commercial Code as in effect from time to time
in the State of New York) after the Fourth Amendment Effective Date unless
it shall have given to Agent prior written notice of its intention to do
so, accompanied with an updated Schedule I to the Fourth Amendment which
reflects all such Deposit Accounts of the Credit Parties at such time
(including any such new Deposit Accounts).
Section 8.20 Working Capital and Capital Expenditure Practices.
Holdings will not, and will not permit any of its Subsidiaries to, (i) in
any material respect manage its working capital, (ii) prepay any accounts
payable or other liabilities (other than the Obligations) which
individually or in the aggregate would be material or (iii) prepay or
accelerate any Capital Expenditures which individually or in the aggregate
would be material, in each case other than in the ordinary course of
business consistent with past practices.
(m) Section 10.1(a) of the Credit Agreement is amended by deleting
such Section in its entirety and substituting the following therefor:
(a) Failure to Make Payments When Due. Borrower (i) shall default
in the payment of principal on any of the Loans or any reimbursement
obligation with respect to any Letter of Credit (it being understood and
agreed that the failure to make a mandatory prepayment pursuant to Section
4.4(i) in an amount equal to 100% of the Capital Infusion requested
pursuant to an Equity Call Notice due to a Trigger Event within twelve
(12) Business Days following delivery to the Equity Investors of such
Equity Call Notice, regardless of whether Holdings or Borrower actually
receive such Capital Infusion, as a result of a default in the payment by
any Equity Investors under the Equity Call Agreement or otherwise, shall
constitute a default in the payment of principal on the Loans as specified
in this Section 10.1(a)(i)); or (ii) shall default in the payment of
interest on any of the Loans or default in the payment of any fee or any
other amount owing hereunder or under any other Loan Document when due and
such default in payment shall continue for three (3) Business Days; or
(n) Section 10.1(c) of the Credit Agreement is amended by deleting
such Section in its entirety and substituting the following therefor:
(c) Covenants. Holdings or Borrower shall (i) default in the
performance or observance of any term, covenant, condition or agreement on
its part to be performed or observed under Section 7.19, Article VIII or
Article IX hereof, (ii) default in the performance or observance of any
term, covenant, condition or agreement on its part to be performed or
observed under Sections 7.3, 7.6, 7.8, 7.9, 7.10, 7.12 or 7.17 and such
default shall remain unremedied for a period of five (5) Business Days or
(iii) default in the due performance or observance by it of any other
term, covenant or agreement contained in this Agreement and such default
shall continue unremedied for a period of thirty (30) days after written
notice to Borrower by Agent or any Lender; or
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(o) Section 12.4(a) of the Credit Agreement is amended by
inserting the following sentence immediately after the first sentence thereof
and immediately prior to the current second sentence thereof:
Borrower also agrees to pay promptly upon request by Agent all costs
and expenses of Agent and Lenders in connection with the retention by
Agent and Lenders of a financial advisor to assist Agent and Lenders with
their analysis of the financial restructuring of Holdings and its
Subsidiaries, including without limitation, the fees and out-of-pocket
expenses of such financial advisor.
(p) The Credit Agreement is amended by amending and restating
Schedules 6.11(c), 6.14 and 6.15 to read as set forth on Schedules 6.11(c), 6.14
and 6.15 attached hereto.
(q) The Credit Agreement is further amended by inserting a new
Schedule 6.25 to read as set forth on Schedule 6.25 attached hereto.
3. Temporary Waiver. From and after the Effective Date to but excluding
January 15, 2002 (such period the "Waiver Period"), the Agent and the Lenders
hereby (i) waive compliance with Sections 9.2, 9.3 and 9.4 of the Credit
Agreement for the Test Periods ending September 30, 2001 and December 31, 2001
and (ii) waive 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 and September 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, and agree
not to assert a failure to satisfy the condition precedent set forth in Section
5.2(d) of the Credit Agreement in connection with any Credit Event after the
date of this Agreement based on such financial statements, projections and
written information identified or described above. Notwithstanding anything
herein to the contrary, Holdings and Borrower expressly acknowledge and agree
that the Agent and the Lenders may exercise any and all rights and remedies
under the Credit Agreement and the other Loan Documents and under applicable law
at any time on or after the earlier to occur of (i) the occurrence of any
Unmatured Event of Default or Event of Default (except as expressly waived above
in this Section 3 during the Waiver Period) after the Effective Date and (ii)
January 15, 2001.
4. 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
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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.
(g) Schedule I attached hereto contains a true and complete list
of all Deposit Accounts (as defined in the Uniform Commercial Code as in effect
from time to time in the State of New York) maintained by any Credit Party as of
the date of this Agreement, which Schedule shall list for each account the
account party, the account number, the financial institution and the address and
contact party for such financial institution.
(h) The amount of the tax refund previously received by Borrower
from the IRS includes an excess refund in the amount of $4,150,099.85 (the
"Excess Income Tax Refund") which Borrower has undertaken to repay to the IRS.
5. Conditions to Effectiveness of Amendment. This Agreement shall
become effective as of September 29, 2001 (the "Effective Date") upon
satisfaction of the following conditions precedent:
(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) revised Schedules 6.11(c), 6.14, 6.15 and 6.25 to the Credit
Agreement;
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(2) an Amended and Restated Security Agreement in the form of
Exhibit A attached hereto, duly executed and delivered by each Credit Party;
(3) a Perfection Certificate in the form of Exhibit B attached
hereto, duly executed and delivered by each Credit Party;
(4) a signed opinion of Xxxxxxxx & Xxxxx, counsel for the Credit
Parties, as to such matters in connection with this Amendment and the other Loan
Documents executed and delivered pursuant to this Amendment as the Agent or its
counsel may reasonably request;
(5) a certificate of an officer of Holdings and the Borrower in
the form of Exhibit C attached hereto;
(6) a Reaffirmation of Guaranty in the form of Exhibit D attached
hereto, duly executed and delivered by Holdings and the Subsidiary Guarantors;
(7) a First Amendment to Equity Call Agreement in the form of
Exhibit E attached hereto, duly executed and delivered by Holdings, Borrower,
the Equity Investors and the Agent;
(8) the financial statements referenced in Section 7.1(a) of the
Credit Agreement for the Fiscal Quarter ended September 30, 2001; and
(9) a certificate of the chief financial officer of Holdings
substantially in the form of Exhibit 7.2(b) to the Credit Agreement (without
giving effect to this Agreement) stating that, to the best of such officer's
knowledge, (i) the financial statements referenced in clause (8) above present
fairly in all material respects, in accordance with GAAP, the financial
condition and results of operations of Holdings and its Subsidiaries for the
period referred to therein (subject, in the case of interim statements, to
normal year-end audit adjustments and the absence of footnote disclosure) and
(ii) after giving effect to this Agreement, no Event of Default or Unmatured
Event of Default has occurred, except as specified in such certificate and, if
so specified, the action which Borrower propose to take with respect thereto,
which certificate shall set forth detailed computations to the extent necessary
to establish Borrower's compliance or non-compliance with the covenants set
forth in Article IX of the Credit Agreement.
(c) 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.
(d) 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.
(e) Fees. Borrower shall have paid all reasonable costs, fees and
expenses (including, without limitation, reasonable legal fees and expenses of
Winston & Xxxxxx and the
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costs, fees and expenses referred to in Section 7(a) hereof and Section 12.4 of
the 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.
6. Consent of Required Lenders. The Required Lenders hereby consent to
the terms of the First Amendment to Equity Call Agreement in the form attached
hereto as Exhibit E.
7. Miscellaneous. The parties hereto hereby further agree as follows:
(a) Costs, Expenses and Taxes. The Borrower hereby agrees to pay
all reasonable fees, costs and expenses of the Agent incurred in connection with
the negotiation, preparation and execution of this Agreement and the
transactions contemplated hereby, including, without limitation, the reasonable
fees and expenses of Winston & Xxxxxx, counsel to the Agent.
(b) Counterparts. This Agreement may be executed in one or more
counterparts, each of which, when executed and delivered, shall be deemed to be
an original and all of which counterparts, taken together, shall constitute but
one and the same document with the same force and effect as if the signatures of
all of the parties were on a single counterpart, and it shall not be necessary
in making proof of this Agreement to produce more than one (1) such counterpart.
(c) Headings. Headings used in this Agreement are for convenience
of reference only and shall not affect the construction of this Agreement.
(d) Integration. This Agreement, the other agreements and
documents executed and delivered pursuant to this Agreement and the Credit
Agreement constitute the entire agreement among the parties hereto with respect
to the subject matter hereof.
(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.
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(g) Amendment; Waiver. The parties hereto agree and acknowledge
that nothing contained in this Agreement in any manner or respect limits or
terminates any of the provisions of the Credit Agreement or any of the other
Loan Documents other than as expressly set forth herein and further agree and
acknowledge that the Credit Agreement (as amended hereby) and each of the other
Loan Documents remain and continue in full force and effect and are hereby
ratified and confirmed. Except to the extent expressly set forth herein, the
execution, delivery and effectiveness of this Agreement shall not operate as an
amendment of any rights, power or remedy of the Lenders or the Agent under the
Credit Agreement or any other Loan Document, nor constitute an amendment of any
provision of the Credit Agreement or any other Loan Document. No delay on the
part of any Lender or the Agent in exercising any of their respective rights,
remedies, powers and privileges under the Credit Agreement or any of the Loan
Documents or partial or single exercise thereof, shall constitute an amendment
thereof. On and after the Effective Date each reference in the Credit Agreement
to "this Agreement," "hereunder," "hereof," "herein" or words of like import,
and each reference to the Credit Agreement in the Loan Documents and all other
documents delivered in connection with the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended hereby. The Borrower and Holdings
acknowledge and agree that this Agreement constitutes a "Loan Document" for
purposes of the Credit Agreement, including, without limitation, Section 10.1 of
the Credit Agreement. None of the terms and conditions of this Agreement may be
changed, waived, modified or varied in any manner, whatsoever, except in
accordance with Section 12.1 of the Credit Agreement.
(h) True-Up. If at the time of any Event of Default pursuant to
Section 10.1(e) or (f) of the Credit Agreement, the sum of (i) the aggregate
principal amount then outstanding of Revolving Loans plus (ii) the LC
Obligations at such time plus (iii) the aggregate principal amount of Swing Line
Loans then outstanding is less than the sum of such amounts as of the Fourth
Amendment Effective Date as a result of mandatory repayments made pursuant to
Section 4.4(j), the Revolving Lenders shall purchase for cash (according to each
Revolving Lender's Revolver Pro Rata Share) Term Loans on a pro rata basis from
the Term Lenders in the amount of such difference.
8. Acknowledgement and Release. Each of the Borrower and Holdings
hereby acknowledges and agrees that all Notices of Borrowing submitted by or on
behalf of the Borrower during the period commencing on September 11, 2001 and
ending on the date of this Agreement have been withdrawn by the Borrower and
Holdings and are of no force and effect, regardless of any action or inaction
taken with respect thereto by the Borrower or any Affiliate of the Borrower, the
Agent or any Lender. Each of the Borrower and Holdings hereby knowingly and
voluntarily releases and forever discharges the Agent and the Lenders and all
present and former directors, officers, agents, representatives, employees,
successors and assigns of the 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 or
any of its Affiliates or Subsidiaries may have, which arise out of or are
connected with any Notice of Borrowing submitted by or on behalf of
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the Borrower at any time during the period commencing on September 11, 2001 and
ending on the date of this Agreement.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
ORIUS CORP.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman of the Board, Chief Executive
Officer and President
NATG HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
BANKERS TRUST COMPANY,
individually and as Agent
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
BANK OF AMERICA, N.A.
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
NATIONAL CITY BANK, CLEVELAND
By: /s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Vice President
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRUST BANK
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
UNION PLANTERS BANK NA
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
BNP PARIBAS
By: /s/ Xxxxxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. March
---------------------------------------------
Name: Xxxxx X. March
Title: Vice President
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
PROMETHEUS INVESTMENT FUNDING NO. 1 LTD.
By: CPF Asset Advisory, LLC, as Investment Manager
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
XXXXXX FINANCIAL, INC.
By:
----------------------------------------
Name:
------------------------------------
Title:
------------------------------------
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
PPM SPYGLASS FUNDING TRUST
By: /s/ Xxx X. Xxxxxx
---------------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
WINGED FOOT FUNDING TRUST
By: /s/ Xxx X. Xxxxxx
---------------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
FREMONT INVESTMENT & LOAN
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
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: Senior Vice President & Portfolio Manager
SRF TRADING, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
XXXXX XXX FLOATING RATE LIMITED LIABILITY COMPANY
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Xxxxx Xxx & Xxxxxxx Incorporated, as
Advisor to the Xxxxx Xxx Floating Rate
Limited Liability Company
Xxxxx Xxx & Xxxxxxx Incorporated as Agent for
KEYPORT LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President & Portfolio Manager
XXXXX XXX & FARNHAM CLO I LTD.
By: Xxxxx Xxx & Xxxxxxx Incorporated
as Portfolio Manager
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President & Portfolio Manager
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital as Portfolio Advisor
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
CARLYLE HIGH YIELD FUND, L.P.
By: /s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
CARLYLE HIGH YIELD PARTNERS II, LTD.
By: /s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
MAPLEWOOD (CAYMAN) LIMITED
By: Xxxxx X. Xxxxxx & Company Inc. under delegated
authority from Massachusetts Mutual Life Insurance
Company as Investment Manager
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc. as Investment Advisor
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
PERSEUS CDO, I LIMITED
By: Mass Mutual Life Insurance Co., as Portfolio Manager
By: /s/ Xxxxxx X. Xxxx
------------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Associate General Counsel
SAAR HOLDINGS CDO LIMITED
By: Mass Mutual Life Insurance Co., as Collateral Manager
By: /s/ Xxxxxx X. Xxxx
------------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Associate General Counsel
SIMSBURY CLO, LIMITED
By: Xxxxx X. Xxxxxx & Company Inc. under delegated
authority from Massachusetts Mutual Life Insurance
Company as Investment Manager
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SUFFIELD CLO LTD
By: X. X. Xxxxxx & Co., Inc., as Collateral Manager
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
PILGRIM CLO 1999-1 LTD
By: Pilgrim Investments, Inc., as its investment manager
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
AIMCO CDO SERIES 2000-A
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxx X. Even
---------------------------------------------
Name: Xxxxxxx X. Even
Title: Authorized Signatory
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxx X. Even
---------------------------------------------
Name: Xxxxxxx X. Even
Title: Authorized Signatory
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
FIRST DOMINION FUNDING II
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
FIRST DOMINION FUNDING III
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
KATONAH I, LTD.
By: /s/ Xxxxx Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx Xxxxx
Title: Authorized Officer
Katonah Capital, L.L.C., as Manager
KATONAH II, LTD.
By: /s/ Xxxxx Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx Xxxxx
Title: Authorized Officer
Katonah Capital, L.L.C., as Manager
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
KZH CNC LLC
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
KZH STERLING LLC
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
MAGNETITE ASSET INVESTORS LLC
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
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: Managing Director
SANKATY HIGH YIELD PARTNERS II, L.P.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
LONGLANE MASTER TRUST IV
By: Fleet National Bank as Trust
Administrator
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
ORIUS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE I
DEPOSIT ACCOUNTS
[Borrower to Provide]
EXHIBIT A
FORM OF AMENDED AND RESTATED SECURITY AGREEMENT
EXHIBIT B
FORM OF PERFECTION CERTIFICATE
EXHIBIT C
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 5(a) of that certain Fourth
Amendment to Amended and Restated Credit Agreement dated as of November ___,
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 4 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 5 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 ____
day of November, 2001.
ORIUS CORP. NATG HOLDINGS, LLC
By: _____________________ By: _____________________
Name: _____________________ Name: _____________________
Title: _____________________ Title: _____________________
EXHIBIT D
REAFFIRMATION OF GUARANTEE
Each of the undersigned acknowledges receipt of a copy of the Fourth
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 November ___, 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 November ___, 2001.
ORIUS CORP.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
CATV SUBSCRIBER SERVICES, INC. CABLEMASTERS CORP.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
CHANNEL COMMUNICATIONS, INC. EXCEL CABLE CONSTRUCTION, INC.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
DAS-CO OF IDAHO, INC. ORIUS INFORMATION TECHNOLOGIES, LLC
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
U.S. CABLE, INC. NETWORK CABLING SERVICES, INC.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
COPENHAGEN UTILITIES & CONSTRUCTION, INC. XXXXXX UNDERGROUND CABLE, INC.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
TEXEL CORPORATION FENIX TELECOMMUNICATIONS SERVICES, INC.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
FENIX TELECOM SERVICES LIMITED PARTNERSHIP FENIX HOLDINGS, INC.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
XXXXX TELECOM SERVICES, X.X. XXXXX TELECOM HOLDINGS, INC.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
XXXXX TELECOM SERVICES, INC. MIDWEST SPLICING & ACTIVATION, INC.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
HATTECH, INC. ORIUS CAPITAL CORP.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
LISN COMPANY LISN, INC.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
ARION SUB, INC. NETWORK CABLING HOLDINGS, INC.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
NETWORK COMPREHENSIVE TELECOM, L.P. QMW COMMUNICATIONS, INC.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
ORIUS TELECOM SERVICES, INC. ORIUS HOLDINGS, INC.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
ORIUS BROADBAND SERVICES, INC. ORIUS TELECOMMUNICATION SERVICES, INC.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
ORIUS CENTRAL OFFICE SERVICES, INC. ORIUS TELECOM PRODUCTS, INC.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
ORIUS INTEGRATED PREMISE SERVICES, INC. ORIUS TELECOMMUNICATION HOLDINGS (WI), INC.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
ORIUS TELECOMMUNICATION SERVICES (WI), LP ORIUS TELECOMMUNICATION SERVICES (WI), INC.
By: By:
--------------------------------------- ---------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------ ------------------------------------
EXHIBIT E
FIRST AMENDMENT TO EQUITY CALL AGREEMENT
SCHEDULE 6.11(c)
REAL PROPERTY
[Borrower to Provide]
SCHEDULE 6.14
CAPITALIZATION
[Borrower to Provide]
SCHEDULE 6.15
CAPITALIZATION OF SUBSIDIARIES
[Borrower to Provide]
