EXHIBIT 2
DEFERRAL AGREEMENT
THIS DEFERRAL Agreement (this "Agreement"), dated as of March 29, 2002,
is by and among NATG HOLDINGS, LLC, a Delaware limited liability company ("NATG"
or the "Borrower"), ORIUS CORP., a Florida corporation ("Holdings"), the
financial institutions party to the Credit Agreement (as defined below), in
their capacities as lenders (collectively, the "Lenders," and each individually,
a "Lender"), and Bankers Trust Company, as administrative agent (the "Agent")
for the Lenders.
W I T N E S S E T H :
WHEREAS, the Borrower, Holdings, the Lenders and the Agent are parties
to that certain Amended and Restated Credit Agreement dated as of July 5, 2000
(as heretofore and hereafter amended, restated, supplemented or otherwise
modified and in effect from time to time, the "Credit Agreement"), pursuant to
which the Lenders have provided to the Borrower credit facilities and other
financial accommodations;
WHEREAS, the Borrower, Holdings, the Lenders and the Agent are parties
to that certain Seventh Amendment to Amended and Restated Credit Agreement and
Forbearance Agreement dated as of the date hereof (the "Seventh Amendment"); and
WHEREAS, the Credit Parties have requested that the Lenders defer the
scheduled principal payments due March 31, 2002;
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. Deferral. Notwithstanding the provisions of the definitions of
"Scheduled Acquisition Repayments", "Scheduled Term A Repayments", "Scheduled
Term B Repayments" and "Scheduled Term C Repayments", the scheduled principal
payments due March 31, 2002 shall be deferred until the earlier of (i) the last
day of the Forbearance Period (as defined in the Seventh Amendment and as
extended pursuant to any extension agreement or amendment) and (ii) June 30,
2002.
3. Representations and Warranties. In order to induce the Agent
and the Lenders to enter into this Agreement, each of the Borrower and Holdings
hereby represents and warrants to the Agent and the Lenders, in each case after
giving effect to this Agreement, as follows:
(a) Each of the Borrower and Holdings has the right,
power and capacity and has been duly authorized and empowered by all requisite
corporate or limited liability company and shareholder or member action to enter
into, execute, deliver and perform this Agreement and all agreements, documents
and instruments executed and delivered pursuant to this Agreement.
(b) This Agreement constitutes each of the Borrower's and
Holdings' legal, valid and binding obligation, enforceable against it, except as
enforcement thereof may be subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law or otherwise).
(c) Except for any representation or warranty relating to
any Disclosed Default (as defined in the Seventh Amendment), 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 (as defined in the
Seventh Amendment), no Event of Default or Unmatured Event of Default exists
under the Credit Agreement.
4. 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 Agreement. The Borrower,
Holdings, the Agent, the Super Majority Lenders of the Term A Facility, the
Super Majority Lenders of the Term B Facility, the Super Majority Lenders of the
Term C Facility and the Super Majority Lenders of the Revolving Facility shall
have executed and delivered this Agreement.
(b) Seventh Amendment Effective Date. The Seventh
Amendment Effective Date (as defined in the Seventh Amendment) shall have
occurred.
(c) No Defaults. Except for the Disclosed Defaults (as
defined in the Seventh Amendment), 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 (as defined in the
Seventh Amendment), after giving effect to this Agreement, the representations
and warranties of the Borrower, Holdings and the
-2-
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) 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.
5. 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.
-3-
(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.
[signature pages follow]
-4-
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
----------------------------------
BANKERS TRUST COMPANY,
individually and as Agent
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
-----------------------------------
Title: Managing Director
----------------------------------
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Principal
----------------------------------
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
-----------------------------------
Title: Director
----------------------------------
UNION PLANTERS BANK NA
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
-----------------------------------
Title: Director
----------------------------------
PROMETHEUS INVESTMENT FUNDING NO. 1 LTD.
By: CPF Asset Advisors, LLC, as
Investment Manager
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------
Title: Associate Director
----------------------------------
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
-----------------------------------
Title: Senior Vice President
----------------------------------
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
----------------------------------
LIBERTY-XXXXX XXX ADVISOR FLOATING RATE
ADVANTAGE FUND
By: Xxxxx Xxx & Farnham Incorporated,
As Advisor
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Sr. VP & Portofolio Manager
----------------------------------
SRF TRADING, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------------------
Name: Xxx X. Xxxxxx
-----------------------------------
Title: Asst. Vice President
----------------------------------
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Senior Vice President
----------------------------------
Xxxxx Xxx & Farnham Incorporated,
As Advisor to the Xxxxx Xxx
Floating Rate Limited Liability
Company
Xxxxx Xxx & Farnham Incorporated as
Agent for KEYPORT LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Sr. VP & Portofolio Manager
----------------------------------
XXXXX XXX & XXXXXXX CLO I LTD.
By: Xxxxx Xxx & Farnham Incorporated
as Portfolio Manager
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Sr. VP & Portofolio Manager
----------------------------------
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: RBC Leveraged Capital as Portfolio
Advisor
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
-----------------------------------
Title: Director
----------------------------------
CARLYLE HIGH YIELD FUND, L.P.
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
-----------------------------------
Title: Principal
----------------------------------
CARLYLE HIGH YIELD PARTNERS II, LTD.
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
-----------------------------------
Title: Principal
----------------------------------
MAPLEWOOD (CAYMAN) LIMITED
By: Xxxxx X. Xxxxxx & Company Inc.
under delegated authority from
Massachusetts Mutual Life Insurance
Company as Investment Manager
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: Xxxxx X. Xxxxxx & Company Inc. as
Investment Advisor
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
PERSEUS CDO, I LIMITED
By: Massachusetts Mutual Life Insurance
Company as Portfolio Manager
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Second VP & Assoc. GC
----------------------------------
SAAR HOLDINGS CDO LIMITED
By: Massachusetts Mutual Life Insurance
Company as Collateral Manager
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Second VP & Assoc. GC
----------------------------------
SIMSBURY CLO, LIMITED
By: Xxxxx X. Xxxxxx & Company Inc.
under delegated authority from
Massachusetts Mutual Life Insurance
Company as Investment Manager
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
SUFFIELD CLO LTD
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
AIMCO CDO SERIES 2000-A, as a Lender
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Authorized Signatory
----------------------------------
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
-----------------------------------
Title: Authorized Signatory
----------------------------------
ALLSTATE LIFE INSURANCE
COMPANY,as a Lender
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Authorized Signatory
----------------------------------
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
-----------------------------------
Title: Authorized Signatory
----------------------------------
FIRST DOMINION FUNDING II
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Authorized Signatory
----------------------------------
FIRST DOMINION FUNDING III
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Authorized Signatory
----------------------------------
KATONAH I, LTD.
By: /s/ Xxxxx Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx Xxxxx
-----------------------------------
Title: Authorized Officer
----------------------------------
KATONAH II, LTD.
By: /s/ Xxxxx Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx Xxxxx
-----------------------------------
Title: Authorized Officer
----------------------------------
KZH CNC LLC
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
-----------------------------------
Title: Authorized Agent
----------------------------------
KZH STERLING LLC
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
-----------------------------------
Title: Authorized Agent
----------------------------------
GREAT POINT CLO 1999-1 LTD., as Term
Lender
By: Sankaty Advisors, Inc., as
Collateral Manager
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
-----------------------------------
Title: Senior Vice President
----------------------------------
SANKATY HIGH YIELD PARTNERS II, L.P.
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
-----------------------------------
Title: Senior Vice President
----------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------
Title: Its Duly Authorized Signatory
----------------------------------
