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EXHIBIT 10.6B
NETWORK PLUS, INC.
SECOND AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT
This SECOND AMENDMENT, dated as of July 19, 2001 (this "AMENDMENT"), to
the Credit and Guaranty Agreement, dated as of September 27, 2000, as amended by
the First Amendment, dated February 9, 2001, (such document, as may be further
amended, the "CREDIT AGREEMENT"), by and among NETWORK PLUS, INC., a
Massachusetts corporation ("COMPANY"), NETWORK PLUS CORP., a Delaware
corporation ("HOLDINGS"), the Lenders party hereto from time to time, GOLDMAN
SACHS CREDIT PARTNERS L.P. ("GSCP"), as a Joint Lead Arranger (in such capacity,
a "JOINT LEAD ARRANGER"), Book Runner (in such capacity,"BOOK RUNNER") and as
Syndication Agent (in such capacity,"SYNDICATION AGENT"), FLEET SECURITIES,
INC., ("FLEET SECURITIES"), as a Joint Lead Arranger (in such capacity, a "JOINT
LEAD ARRANGER"), DLJ BRIDGE FINANCE, INC., as Documentation Agent (in such
capacity,"DOCUMENTATION AGENT") and FLEET NATIONAL BANK, as Administrative Agent
(together with its permitted successors and assigns in such capacity,
"ADMINISTRATIVE AGENT") and as Collateral Agent (together with its permitted
successors and assigns in such capacity, "COLLATERAL AGENT"). Capitalized terms
used herein not otherwise defined herein or otherwise amended hereby shall have
the meanings ascribed thereto in the Credit Agreement.
RECITALS:
WHEREAS, Company and Holdings have requested that Requisite Lenders
agree to amend the Credit Agreement with respect to (i) the financial covenants
set forth in Section 6.6(a), (ii) the definition of Borrowing Base Amount and
(iii) certain other definitions and covenants, in each case subject to the terms
and conditions set forth herein; and
WHEREAS, in connection with the foregoing, Requisite Lenders have
agreed to amend the Credit Agreement on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS.
A. Section 1.1 of the Credit Agreement is hereby amended by adding thereto the
following definitions in proper alphabetical order:
"PWC REPORT" means a report from PricewaterhouseCoopers LLP
with respect to the financial plan of the Company.
"SECOND AMENDMENT" means the Second Amendment dated July 19,
2001 to this Agreement by and among Company, Holdings, Lenders as of
the date
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of such amendment, the Joint Lead Arrangers, Book Runner, Syndication
Agent, Documentation Agent, Administrative Agent and Collateral Agent."
"SECOND AMENDMENT CLOSING DATE" has the meaning assigned to
that term in the Second Amendment."
B. Section 1.1 of the Credit Agreement is hereby further amended by deleting
the definition of "Borrowing Base Amount" therein and substituting
therefore the following:
"BORROWING BASE AMOUNT" means, at any date of determination,
the sum of (i) 80% of Eligible Accounts Receivable plus (ii) 70% of
Eligible Unbilled Accounts plus (iii) Eligible Net Property, all as
reflected on the most recently delivered Borrowing Base Certificate;
provided, however, that the Borrowing Base Amount shall not exceed
$145,000,000 at any time without the prior written approval of
Requisite Lenders.
1.2 AMENDMENTS TO SECTION 5: AFFIRMATIVE COVENANTS.
A. Subsection 5.1 of the Credit Agreement is hereby amended by inserting the
following proviso at the end of the last sentence of paragraph (b) thereto:
"; provided, however, notwithstanding anything herein to the
contrary, the forgoing documents shall be delivered no later than
fifteen (15) Business Days after the end of the third Fiscal Quarter of
the Fiscal Year 2001."
B. Subsection 5.1 of the Credit Agreement is hereby further amended by the
addition of a new paragraph (t) at the conclusion thereof as follows:
"(t) The Company shall furnish to the Joint Lead Arrangers the
PWC Report no later than August 31, 2001."
1.3 AMENDMENTS TO SECTION 6: NEGATIVE COVENANTS.
A. Subsection 6.6(a) of the Credit Agreement is hereby amended by revising
Schedule 6.6(a) to the Credit Agreement so that the minimum quarterly
Revenue requirements set forth opposite the Fiscal Quarter's ending June
30, 2001 and September 30, 2001 of $81,000,000 and $92,500,000 respectively
shall be deleted and replaced by $76,000,000 in each case.
B. Subsection 6.6(c) of the Credit Agreement is hereby amended by revising
Schedule 6.6(c) to the Credit Agreement so that the Consolidated EBITDA
requirement set forth opposite the Fiscal Quarter ending September 30, 2001
of $500,000 shall be deleted and replaced by $100,000.
SECTION 2. CONDITIONS PRECEDENT TO EFFECTIVENESS
2.1 The effectiveness of the amendments set forth at Section 1
hereof are
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subject to the satisfaction, or waiver, of the following conditions on or before
the date hereof (the "SECOND AMENDMENT CLOSING DATE"):
(a) The Company, Holdings and the Requisite Lenders shall
have indicated their consent by the execution and delivery of the signature
pages hereof to the Administrative Agent.
(b) As of the Second Amendment Closing Date, the
representations and warranties contained herein and in the other Credit
Documents shall be true, correct and complete in all respects on and as of the
Second Amendment Closing Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and warranties
shall have been true, correct and complete in all respects on and as of such
earlier date.
(c) As of the Second Amendment Closing Date and after
giving effect to this Amendment, no event shall have occurred and be continuing
that would constitute an Event of Default or a Default.
(d) The Company and/or Holdings shall have signed an
engagement letter, a copy of which has been provided to the Agents, with
PricewaterhouseCoopers LLP ("PWC") which shall provide that PWC shall provide a
report (the "PWC REPORT") to the Administrative Agent with respect to various
financial reporting matters relating to Holdings and its Subsidiaries and that,
in connection therewith, will be provided (i) reasonable access to the books and
records of Holdings and its Subsidiaries and management of Holdings and
Subsidiaries and (ii) such other information as PWC may reasonably request and
that Company and/or Holdings will pay the reasonable fees and expenses of PWC in
connection with such engagement.
(e) The Administrative Agent and Lenders shall have
received such other documents and information regarding Credit Parties and the
Credit Agreement as the Administrative Agent or Lenders may reasonably request.
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 In order to induce Lenders to enter into this Amendment, each
applicable Credit Party represents and warrants to each Lender, as of the date
hereof and upon giving effect to this Amendment:
(a) as of the date hereof and after giving effect to this
Amendment, there exists no Event of Default under the Credit Agreement; and
(b) that the representations and warranties contained in
each of the Credit Documents is true, correct and complete in all respects on
and as of the date hereof to the same extent as though made on and as of that
date, except to the extent such
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representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been true, correct and
complete in all respects on and as of such earlier date.
SECTION 4. ACKNOWLEDGMENT AND CONSENT
4.1 Holdings has (i) guaranteed the Obligations and (ii) created
Liens in favor of Lenders on certain Collateral to secure its obligations under
Section 7 of the Credit Agreement. Holdings is referred to herein as the "CREDIT
SUPPORT PARTY", and the Credit Agreement and the Pledge and Security Agreement,
dated as of September 27, 2000, between the Company, each of the grantors party
thereto and Fleet National Bank, as Collateral Agent (as such may be amended,
supplemented or modified) (the "PLEDGE AND SECURITY AGREEMENT") are collectively
referred to herein as the "CREDIT SUPPORT DOCUMENTS".
4.2 The Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and this Amendment and
consents to the amendment of the Credit Agreement effected pursuant to this
Amendment. The Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all Collateral encumbered
thereby will continue to guarantee or secure, as the case may be, to the fullest
extent possible in accordance with the Credit Support Documents, the payment and
performance of all Guaranteed Obligations under the Credit Agreement and the
Secured Obligations (as such term is defined in the Pledge and Security
Agreement) under the Pledge and Security Agreement, as the case may be,
including without limitation the payment and performance of all such Guaranteed
Obligations under the Credit Agreement and the Secured Obligations (as such term
is defined in the Pledge and Security Agreement) under the Pledge and Security
Agreement in respect of the Obligations of Company now or hereafter existing
under or in respect of the Credit Agreement, as amended by this Amendment, and
grants to the Collateral Agent a continuing lien on and security interest in and
to all Collateral as collateral security for the prompt payment and performance
in full when due of the Guaranteed Obligations under the Credit Agreement and
the Secured Obligations (as such term is defined in the Pledge and Security
Agreement) under the Pledge and Security Agreement (whether at stated maturity,
by acceleration or otherwise).
4.3 The Credit Support Party acknowledges and agrees that any of
the Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. The Credit Support Party
represents and warrants that all representations and warranties contained in the
Credit Agreement, as amended by this Amendment, and the Credit Support Documents
to which it is a party or otherwise bound are true, correct and complete in all
material respects on and as of the Second Amendment Closing Date to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date.
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4.4 The Credit Support Party acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment,
such Credit Support Party is not required by the terms of the Credit Agreement
or any other Credit Document to consent to the amendments to the Credit
Agreement effected pursuant to this Amendment and (ii) nothing in the Credit
Agreement, this Amendment or any other Credit Document shall be deemed to
require the consent of such Credit Support Party to any future amendments to the
Credit Agreement.
SECTION 5. MISCELLANEOUS
5.1 This Amendment shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit of the
parties hereto and the successors and assigns of Lenders. No Credit Party's
rights or obligations hereunder or any interest therein may be assigned or
delegated by any Credit Party without the prior written consent of all Lenders.
5.2 In case any provision in or obligation hereunder shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
5.3 On and after the Second Amendment Closing Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, and each reference in
the other Credit Documents to the "Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended by this Amendment.
5.4 Except as specifically amended by this Amendment, the Credit
Agreement and the other Credit Documents shall remain in full force and effect
and are hereby ratified and confirmed.
5.5 The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of any Agent
or Lender under, the Credit Agreement or any of the other Credit Documents.
5.6 Section headings herein are included herein for convenience of
reference only and shall not constitute a part hereof for any other purpose or
be given any substantive effect.
5.7 THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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5.8 This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
As set forth herein, this Amendment shall become effective upon the execution of
a counterpart hereof by each of the parties hereto and receipt by Company,
Holdings and Administrative Agent and Syndication Agent of written or telephonic
notification of such execution and authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY: NETWORK PLUS, INC.
By: __________________________
Name:
Title:
CREDIT SUPPORT NETWORK PLUS CORP.
PARTIES:
By: __________________________
Name:
Title:
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JOINT LEAD ARRANGER,
BOOK RUNNER,
SYNDICATION AGENT AND
A LENDER: GOLDMAN SACHS CREDIT PARTNERS L.P.
By: __________________________
Authorized Signatory
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ADMINISTRATIVE AGENT,
COLLATERAL AGENT AND
A LENDER: FLEET NATIONAL BANK
By: __________________________
Name:
Title:
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DOCUMENTATION AGENT: DLJ BRIDGE FINANCE, INC.
By: __________________________
Name:
Title:
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LENDERS: NETPLUS FUNDING, INC.
By: __________________________
Name:
Title:
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IBM CREDIT CORPORATION
By: __________________________
Name:
Title:
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