EXHIBIT 1
SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
FORBEARANCE Agreement (this "AGREEMENT"), dated as of February 26, 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. 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 amending
and restating the following definition in its entirety as follows
"TRIGGER DATE" means the earliest to occur of (i) the date on
which any Unmatured Event of Default or Event of Default (but
excluding any Disclosed Defaults during the Forbearance
Period, as such terms are defined in the Sixth Amendment to
Amended and Restated Credit Agreement and Forbearance
Agreement dated as of February __, 2002 among Holdings,
Borrower, Agent and the Lenders) 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.
(b) SECTION 2.9(A)(I) of the Credit Agreement is amended by
deleting the first sentence of such Section and replacing it with the following:
Subject to and upon the terms and conditions herein set forth
and such other conditions as are applicable to its customers
generally, BT agrees to issue, or cause one of its Affiliates
(including without limitation Deutsche Bank AG, New York
Branch), to issue in its own name (in such capacity, "FACING
AGENT"), but for the ratable benefit of all Revolving Lenders
(including the Facing Agent) at any time and from time to time
on or after the Initial Borrowing Date and prior to the 30th
day preceding the Revolver Termination Date, one or more
Letters of Credit, each having a Stated Amount in Dollars and
each being issued at sight, for the account of Borrower in an
aggregate undrawn amount at any one time outstanding that
together with the aggregate Stated Amount of other Letters of
Credit then outstanding, does not exceed $30,000,000;
PROVIDED, HOWEVER, that Facing Agent shall not be obligated to
issue any Letter of Credit if the aggregate LC Obligations at
such time would exceed $15,000,000, unless Borrower delivers
cash in an amount equal to such excess to Facing Agent to be
held by and deposited in an account in the name of Facing
Agent as cash collateral for the payment and performance of
all LC Obligations (it being acknowledged and agreed that
Borrower shall not be required to deliver cash collateral to
the extent the aggregate amount of cash collateral then held
by the Facing Agent is at least equal to the amount of LC
Obligations in excess of $15,000,000 at such time). Facing
Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Monies in
such account shall automatically be applied by Facing Agent to
reimburse Facing Agent for LC Obligations for which Facing
Agent has not been reimbursed, and any remaining amounts will
either (1) be held for the satisfaction of the LC Obligations
of Borrower at such time or (2) if the maturity of the Loans
has been accelerated, be applied to satisfy all LC
Obligations. In no event shall Facing Agent 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 $30,000,000, (B) the
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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.
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) March 31, 2002; (ii) the occurrence
of an Additional Default (as defined below) under the Credit Agreement; (iii)
any payment is made by Borrower or any Credit Party under or in respect to the
Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other
Senior Subordinated Document, or the Trustee or any Holder (as such terms are
defined in the Senior Subordinated Note Indenture) exercises any rights or
remedies under the Senior Subordinated Documents or under applicable law; (iv)
notification by Agent to Borrower in writing that the Required Lenders have
elected to terminate the Forbearance Period following an acceleration of the
indebtedness evidenced by the Senior Subordinated Documents; (v) any
representation or warranty made by any of the Credit Parties under this
Agreement or any agreement, instrument or other document executed or delivered
by any of the Credit Parties in connection with this Agreement is incorrect or
misleading in any material respect when made or deemed made; and (vi) the
occurrence of (or the Lenders' awareness of any facts or conditions previously
unknown with respect to) any adverse change which has, or is reasonably likely
to have, a material adverse effect on (A) the business, financial condition,
assets, liabilities, prospects or results of operations of Holdings and its
Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform
its respective obligations under any Loan Document to which it is a party, or
(C) the validity or enforceability (other than in accordance with its terms) of
the Credit Agreement or any of the Loan Documents or the rights or remedies of
Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The
forbearance provisions set forth in this SECTION 3(A) shall, as of the Effective
Date, supersede in their entirety the forbearance provisions set forth in
Section 3(a) of the Fifth Amendment to Amended and Restated Credit Agreement and
Forbearance Agreement dated as of January 15, 2002 among Holdings, Borrower,
Agent and the Lenders.
(b) Upon the termination of the Forbearance Period as provided
above, the Agent, the Lenders, the Collateral Agent and the Facing Agent shall
be fully entitled to exercise any rights or remedies they may have under the
Credit Agreement, the Loan Documents or applicable law. Nothing herein shall
limit or restrict in any way the rights and remedies of the Agent, any Lender,
the Collateral Agent or the Facing Agent with respect to any Unmatured Event of
Default or Event of Default other than a Disclosed Default (collectively, the
"ADDITIONAL DEFAULTS" and, individually, each an "ADDITIONAL DEFAULT").
3
(c) Provided that no Additional Default has occurred, the
Agent, the Lenders and the Facing Agent hereby acknowledge that during the
Forbearance Period the Revolving Lenders shall continue to make Revolving Loans
that are Base Rate Loans and the Facing Agent shall continue to issue Letters of
Credit under, and pursuant to the terms and conditions of, the Credit Agreement
notwithstanding the existence of the Disclosed Defaults and the inability to
satisfy the conditions precedent set forth in SECTION 5.2 of the Credit
Agreement due solely to the Disclosed Defaults (it being understood that the
existence of the Disclosed Defaults may be excepted from any Notice of Borrowing
or Letter of Credit Request).
(d) THE BORROWER AND HOLDINGS EXPRESSLY ACKNOWLEDGE AND AGREE
THAT THE FORBEARANCE PROVISION SET FORTH IN THIS SECTION 3 IS EFFECTIVE ONLY
DURING THE FORBEARANCE PERIOD AND THAT, AFTER THE TERMINATION OF THE FORBEARANCE
PERIOD, THE CREDIT AGREEMENT WILL BE IN MATERIAL DEFAULT AND THE AGENT, THE
LENDERS, THE COLLATERAL AGENT AND THE FACING AGENT WILL BE FULLY ENTITLED
IMMEDIATELY TO EXERCISE THEIR RIGHTS AND REMEDIES UNDER THE CREDIT AGREEMENT,
THE LOAN DOCUMENTS OR APPLICABLE LAW WITHOUT REGARD TO ANY MATTERS TRANSPIRING
DURING THE FORBEARANCE PERIOD OR THE FINANCIAL CONDITION OR PROSPECTS OF
HOLDINGS, THE BORROWER AND THEIR RESPECTIVE SUBSIDIARIES. THE BORROWER AND
HOLDINGS UNDERSTAND THAT THE AGENT AND THE LENDERS ARE EXPRESSLY RELYING ON THE
TERMS OF THIS SECTION 3 AND WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR
THE BORROWER'S AND HOLDINGS' ACKNOWLEDGMENT AND AGREEMENT IN THIS SECTION 3.
4. NO WAIVER. Nothing in this Agreement shall in any way be deemed to
be (i) a waiver of any Unmatured Event of Default or Event of Default, including
a Disclosed Default, or (ii) an agreement to forbear from exercising any rights
or remedies with respect to any Unmatured Event of Default or Event of Default
except as specifically set forth in SECTION 3 hereof.
5. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent and the
Lenders to enter into this Agreement, each of the Borrower and Holdings hereby
represents and warrants to the Agent and the Lenders, in each case after giving
effect to this Agreement, as follows:
(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).
4
(c) Except for any representation or warranty relating to any
Disclosed Default, the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct in all material
respects at and as of the Effective Date as though made on and as of the
Effective Date (except to the extent specifically made with regard to a
particular date, in which case such representation and warranty is true and
correct in all material respects as of such earlier date).
(d) Each of the Borrower's and Holdings' execution, delivery
and performance of this Agreement do not and will not violate its Articles or
Certificate of Incorporation, By-laws or other Organizational Documents, any
law, rule, regulation, order, writ, judgment, decree or award applicable to it
or any contractual provision to which it is a party or to which it or any of its
property is subject.
(e) No authorization or approval or other action by, and no
notice to or filing or registration with, any governmental authority or
regulatory body (other than those which have been obtained and are in force and
effect) is required in connection with the execution, delivery and performance
by the Borrower, Holdings or any other Credit Party of this Agreement and all
agreements, documents and instruments executed and delivered pursuant to this
Agreement.
(f) Except for the Disclosed Defaults, no Event of Default or
Unmatured Event of Default exists under the Credit Agreement.
6. CONDITIONS TO EFFECTIVENESS OF AGREEMENT. This Agreement shall
become effective as on the date (the "EFFECTIVE DATE") each of the following
conditions precedent is satisfied:
(a) EXECUTION AND DELIVERY OF AMENDMENT. The Borrower,
Holdings, the Agent and the Required Lenders shall have executed and delivered
this Agreement.
(b) EXECUTION AND DELIVERY OF LOAN DOCUMENTS. The Agent shall
have received each of the following documents, all of which shall be
satisfactory in form and substance to the Agent and its counsel:
(1) a certificate of an officer of Holdings and the Borrower
in the form of EXHIBIT A attached hereto, duly executed and delivered
by Holdings and the Borrower; and
(2) a Reaffirmation of Guaranty in the form of EXHIBIT B
attached hereto, duly executed and delivered by Holdings and the
Subsidiary Guarantors.
(c) NO DEFAULTS. Except for the Disclosed Defaults, no Event
of Default or Unmatured Event of Default under the Credit Agreement shall have
occurred and be continuing.
(d) REPRESENTATIONS AND WARRANTIES. Except for any
representation or warranty relating to any Disclosed Default, after giving
effect to this Agreement, the representations and warranties of the Borrower,
Holdings and the other Credit Parties contained in this Agreement, the Credit
Agreement and the other Loan Documents shall be true and correct in all material
5
respects as of the Effective Date, with the same effect as though made on such
date, except to the extent that any such representation or warranty relates to
an earlier date, in which case such representation or warranty shall be true and
correct in all material respects as of such earlier date.
(e) FEES. Borrower shall have paid all reasonable costs, fees
and expenses (including, without limitation, reasonable legal fees and expenses
of Winston & Xxxxxx and the costs, fees and expenses referred to in SECTION 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.
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
6
set forth to the contrary herein, this Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the Borrower, Holdings,
the Agent and the Lenders and their respective successors and permitted assigns.
(g) AMENDMENT; WAIVER. The parties hereto agree and
acknowledge that nothing contained in this Agreement in any manner or respect
limits or terminates any of the provisions of the Credit Agreement or any of the
other Loan Documents other than as expressly set forth herein and further agree
and acknowledge that the Credit Agreement (as amended hereby) and each of the
other Loan Documents remain and continue in full force and effect and are hereby
ratified and confirmed. Except to the extent expressly set forth herein, the
execution, delivery and effectiveness of this Agreement shall not operate as an
amendment of any rights, power or remedy of the Lenders or the Agent under the
Credit Agreement or any other Loan Document, nor constitute an amendment of any
provision of the Credit Agreement or any other Loan Document. No delay on the
part of any Lender or the Agent in exercising any of their respective rights,
remedies, powers and privileges under the Credit Agreement or any of the Loan
Documents or partial or single exercise thereof, shall constitute an amendment
thereof. On and after the Effective Date each reference in the Credit Agreement
to "this Agreement," "hereunder," "hereof," "herein" or words of like import,
and each reference to the Credit Agreement in the Loan Documents and all other
documents delivered in connection with the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended hereby. The Borrower and Holdings
acknowledge and agree that this Agreement constitutes a "Loan Document" for
purposes of the Credit Agreement, including, without limitation, SECTION 10.1 of
the Credit Agreement. None of the terms and conditions of this Agreement may be
changed, waived, modified or varied in any manner, whatsoever, except in
accordance with SECTION 12.1 of the Credit Agreement.
(h) TOLLING. Any and all statutes of limitations, repose or
similar legal constraints on the time by which a claim must be filed, a person
given notice thereof, or asserted, that expire, run or lapse during the
Forbearance Period on any claims that any Lender may have against the Credit
Parties or any other persons relating to any Credit Party (collectively, the
"FORBEARANCE PERIOD STATUTES OF LIMITATION") will be tolled during the
Forbearance Period. The Credit Parties waive any defense they may have against
the Lenders under the Forbearance Period Statutes of Limitation, applicable law
or otherwise solely as to the expiration, running or lapsing of the Forbearance
Period Statutes of Limitation during the Forbearance Period.
(i) RELEASE. Each of the Borrower and Holdings hereby
knowingly and voluntarily releases and forever discharges the Agent, the
Collateral Agent, the Facing Agent and 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.
7
(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 pursuant
to SECTION 2.9(A)(I) of the Credit Agreement 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
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
10
BANKERS TRUST COMPANY,
individually and as Agent
By: /s/ M.A ORLANDO
----------------------------
Name: XXXXX XXXXXXX
------------------------
Title: DIRECTOR
------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
11
BANK OF AMERICA, N.A.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXXX X. XXXXXXX
---------------------------------------
Title: PRINCIPAL
--------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
12
FIRST UNION NATIONAL BANK
By: /s/ XXXXXXXXX X. XXXXXX
--------------------------------
Name: XXXXXXXXX X. XXXXXX
------------------------------
Title: DIRECTOR
----------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
13
NATIONAL CITY BANK, CLEVELAND
By: /s/ XXXX XXXXXX
-----------------------------------------
Name: XXXX XXXXXX
-----------------------------------
Title: ASSISTANT VICE PRESIDENT
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
14
SUNTRUST BANK
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
15
UNION PLANTERS BANK NA
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
16
WACHOVIA BANK, N.A.
By: /s/ XXXXXXXXX X. XXXXXX
-----------------------------------------
Name: XXXXXXXXX X. XXXXXX
-----------------------------------
Title: DIRECTOR
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
17
BNP PARIBAS
By: /s/ XXXXXXXXX XXXXXX
-----------------------------------------
Name: XXXXXXXXX XXXXXX
-----------------------------------
Title: VICE PRESIDENT
-------------------------------------
By: /s/ XXXXX X. XXXXXXXXX
-----------------------------------------
Name: XXXXX X. XXXXXXXXX
-----------------------------------
Title: DIRECTOR
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
18
PROMETHEUS INVESTMENT FUNDING NO. 1 LTD.
By: CPF Asset Advisory, LLC, as
Investment Manager
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
19
XXXXXX FINANCIAL, INC.
By: /s/ XXXXXXX XXXXXX
-----------------------------------------
Name: XXXXXXX XXXXXX
-----------------------------------
Title: SENIOR VICE PRESIDENT
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
20
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 SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
21
PPM SPYGLASS FUNDING TRUST
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
WINGED FOOT FUNDING TRUST
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. XXXXXXX
-----------------------------------
Title: AUTHORIZED AGENT
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
22
FREMONT INVESTMENT & LOAN
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
23
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. VP AND PORTFOLIO MGR.
-------------------------------------
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. VP AND PORTFOLIO MGR.
-------------------------------------
XXXXX XXX & XXXXXXX CLO I LTD.
By: Xxxxx Xxx & Farnham Incorporated
as Portfolio Manager
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. XXXXXXX
-----------------------------------
Title: SR. VP AND PORTFOLIO MGR.
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
24
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital as Portfolio
Advisor
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
25
CARLYLE HIGH YIELD FUND, L.P.
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
CARLYLE HIGH YIELD PARTNERS II, LTD.
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
26
MAPLEWOOD (CAYMAN) LIMITED
By: Xxxxx X. Xxxxxx & Company Inc. under
delegated authority from Massachusetts
Mutual Life Insurance Company as
Investment Manager
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Name: XXXXXX X. XXXX
---------------------------------------
Title: SECOND VP & ASSOC. GC
-------------------------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc. as
Investment Advisor
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Name: XXXXXX X. XXXX
----------------------------------------
Title: SECOND VP & ASSOC. GC
-------------------------------------
PERSEUS CDO, I LIMITED
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Name: XXXXXX X. XXXX
----------------------------------------
Title: SECOND VP & ASSOC. GC
-------------------------------------
SAAR HOLDINGS CDO LIMITED
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Name: XXXXXX X. XXXX
-----------------------------------------
Title: SECOND VP & ASSOC. GC
-------------------------------------
SIMSBURY CLO, LIMITED
By: Xxxxx X. Xxxxxx & Company Inc. under
delegated authority from Massachusetts
Mutual Life Insurance Company as
Investment Manager
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Name: XXXXXX X. XXXX
----------------------------------------
Title: SECOND VP & ASSOC. GC
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
27
SUFFIELD CLO LTD
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Name: XXXXXX X. XXXX
-----------------------------------
Title: SECOND VP & ASSOC. GC
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
28
PILGRIM CLO 1999-1 LTD
By: Pilgrim Investments, Inc., as its
investment manager
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
29
AIMCO CDO SERIES 2000-A
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
ALLSTATE LIFE INSURANCE COMPANY
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
30
FIRST DOMINION FUNDING II
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
FIRST DOMINION FUNDING III
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
31
KATONAH I, LTD.
By: /s/ XXXXX XXXXX XXXXX
-----------------------------------------
Name: XXXXX XXXXX XXXXX
-----------------------------------
Title: AUTHORIZED OFFICER
-------------------------------------
KATONAH II, LTD.
By: /s/ XXXXX XXXXX XXXXX
-----------------------------------------
Name: XXXXX XXXXX XXXXX
-----------------------------------
Title: AUTHORIZED OFFICER
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
32
KZH CNC LLC
By: /s/ XXXXX XXXXXX-XXXXXX
--------------------------------
Name: XXXXX XXXXXX-XXXXXX
--------------------------
Title: AUTHORIZED AGENT
----------------------------
KZH STERLING LLC
By: /s/ XXXXX XXXXXX-XXXXXX
--------------------------------
Name: XXXXX XXXXXX-XXXXXX
--------------------------
Title: AUTHORIZED AGENT
----------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
33
MAGNETITE ASSET INVESTORS LLC
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
34
GREAT POINT CLO 1999-1 LTD., as Term Lender
By: Sankaty Advisors, Inc., as Collateral
Manager
By: /s/ XXXXX XXXXX
--------------------------------
Name: XXXXX XXXXX
--------------------------
Title: MANAGING DIRECTOR
----------------------------
SANKATY HIGH YIELD PARTNERS II, L.P
By: /s/ XXXXX XXXXX
--------------------------------
Name: XXXXX XXXXX
--------------------------
Title: MANAGING DIRECTOR
----------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
35
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ XXXXXX X. XXXXXX
-----------------------------------------
Name: XXXXXX X. XXXXXX
-----------------------------------
Title: ITS DULY AUTHORIZED SIGNATORY
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
36
LONGLANE MASTER TRUST IV
By: Fleet National Bank as Trust
Administrator
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
ORIUS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
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, prior to January 15, 2002, to deliver copies of all Form
8-Ks within 10 days after filing with the SEC in accordance with
SECTION 7.2(F) of the Credit Agreement.
5. The failure, prior to January 15, 2002, to notify Agent prior to
opening new Deposit Accounts in accordance with SECTION 8.19 of the
Credit Agreement.
6. 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 1-5 above.
EXHIBIT A
CERTIFICATE OF OFFICER
I, the undersigned, Chief Executive Officer of NATG Holdings,
LLC, a Delaware limited liability company (the "BORROWER"), and Orius Corp., a
Florida corporation ("HOLDINGS"), in accordance with SECTION 6(B) of that
certain Sixth Amendment to Amended and Restated Credit Agreement and Forbearance
Agreement dated as of February 26, 2002 (the "AGREEMENT") among Holdings, the
Borrower, Bankers Trust Company, as Agent, and the financial institutions party
to the Credit Agreement (as defined in the Agreement), do hereby certify on
behalf of the Borrower and Holdings and not in my individual capacity, the
following:
1. The representations and warranties set forth in SECTION 5
of the Agreement are true and correct in all material respects
as of the date hereof except to the extent such
representations and warranties are expressly made as of a
specified date in which event such representations and
warranties were true and correct in all material respects as
of such specified date;
2. Except for the Disclosed Defaults, no Event of Default or
Unmatured Event of Default has occurred and is continuing
after giving effect to the Agreement; and
3. The conditions of SECTION 6 of the Agreement have been
fully satisfied.
Unless otherwise defined herein, capitalized terms used herein
shall have the meanings set forth in the Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered on behalf of the Borrower and Holdings this Certificate of Officer on
this 26th day of February, 2002.
ORIUS CORP. NATG HOLDINGS, LLC
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------- --------------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
--------------------------- -------------------------
Title: PRESIDENT AND CEO Title: PRESIDENT AND CEO
-------------------------- ------------------------
EXHIBIT B
REAFFIRMATION OF GUARANTEE
Each of the undersigned acknowledges receipt of a copy of the Sixth
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 February 26,
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 February 26, 2002.
ORIUS CORP.
By: /s/ XXXXXX X. XXXXX
--------------------------
Name: XXXXXX X. XXXXX
--------------------------
Title: PRESIDENT AND CEO
--------------------------
CATV SUBSCRIBER SERVICES, INC. CABLEMASTERS CORP.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
--------------------------- -----------------------
Title: DIRECTOR Title: DIRECTOR
-------------------------- ----------------------
CHANNEL COMMUNICATIONS, INC. EXCEL CABLE CONSTRUCTION, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
--------------------------- -----------------------
Title: DIRECTOR Title: DIRECTOR
-------------------------- ----------------------
DAS-CO OF IDAHO, INC. ORIUS INFORMATION TECHNOLOGIES, LLC
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
--------------------------- -----------------------
Title: DIRECTOR Title: DIRECTOR
-------------------------- ----------------------
U.S. CABLE, INC. NETWORK CABLING SERVICES, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
------------------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
------------------------------------ -----------------------
Title: DIRECTOR Title: DIRECTOR
----------------------------------- ----------------------
COPENHAGEN UTILITIES & CONSTRUCTION, INC. XXXXXX UNDERGROUND CABLE, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
------------------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
------------------------------------ -----------------------
Title: DIRECTOR Title: DIRECTOR
----------------------------------- ----------------------
TEXEL CORPORATION FENIX TELECOMMUNICATIONS
SERVICES, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
------------------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
------------------------------------ -----------------------
Title: DIRECTOR Title: DIRECTOR
----------------------------------- ----------------------
FENIX TELECOM SERVICES LIMITED PARTNERSHIP FENIX HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
------------------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
------------------------------------ -----------------------
Title: DIRECTOR Title: DIRECTOR
----------------------------------- ----------------------
XXXXX TELECOM SERVICES, X.X. XXXXX TELECOM HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
------------------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
------------------------------------ -----------------------
Title: DIRECTOR Title: DIRECTOR
----------------------------------- ----------------------
XXXXX TELECOM SERVICES, INC. MIDWEST SPLICING &
ACTIVATION, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
------------------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
------------------------------------ -----------------------
Title: DIRECTOR Title: DIRECTOR
----------------------------------- ----------------------
HATTECH, INC. ORIUS CAPITAL CORP.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
--------------------------------- -----------------------
Title: DIRECTOR Title: DIRECTOR
-------------------------------- ----------------------
LISN COMPANY LISN, INC.
By: By: /s/ XXXXXX X. XXXXX
---------------------------------- -----------------------
Name: Name: XXXXXX X. XXXXX
--------------------------------- -----------------------
Title: Title: DIRECTOR
-------------------------------- ----------------------
ARION SUB, INC. NETWORK CABLING HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
--------------------------------- -----------------------
Title: DIRECTOR Title: DIRECTOR
-------------------------------- ---------------
NETWORK COMPREHENSIVE TELECOM, L.P. QMW COMMUNICATIONS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
--------------------------------- -----------------------
Title: DIRECTOR Title: DIRECTOR
-------------------------------- ----------------------
ORIUS TELECOM SERVICES, INC. ORIUS HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
--------------------------------- -----------------------
Title: DIRECTOR Title: DIRECTOR
-------------------------------- ----------------------
ORIUS CENTRAL OFFICE SERVICES, INC. ORIUS TELECOMMUNICATION
SERVICES, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
--------------------------------- -----------------------
Title: DIRECTOR Title: DIRECTOR
-------------------------------- ----------------------
ORIUS INTEGRATED PREMISE SERVICES, INC. ORIUS TELECOM PRODUCTS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
--------------------------------- -----------------------
Title: DIRECTOR Title: DIRECTOR
-------------------------------- ----------------------
ORIUS TELECOMMUNICATION SERVICES ORIUS TELECOMMUNICATION HOLDINGS
(WI), LP (WI), INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------- -----------------------
Name: XXXXXX X. XXXXX Name: XXXXXX X. XXXXX
--------------------------- -----------------------
Title: DIRECTOR Title: DIRECTOR
-------------------------- ----------------------
ORIUS TELECOMMUNICATION SERVICES
(WI), INC.
By: /s/ XXXXXX X. XXXXX
----------------------
Name: XXXXXX X. XXXXX
----------------------
Title: DIRECTOR
----------------------
