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EXHIBIT 10.6C
NETWORK PLUS, INC.
THIRD AMENDMENT AND LIMITED WAIVER TO
CREDIT AND GUARANTY AGREEMENT
This THIRD AMENDMENT AND LIMITED WAIVER, dated as of August 10, 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, as further
amended by the Second Amendment, dated July 19, 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 (i) to amend the Credit Agreement with respect to the definition of
Borrowing Base Amount and (ii) to make certain other modifications, in each case
subject to the terms and conditions set forth herein; and
WHEREAS, Company and Holdings have requested that Requisite Lenders
agree to a limited waiver of compliance with the Credit Agreement with respect
to certain of the financial covenants set forth in Section 6.6(a).
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows
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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:
"THIRD AMENDMENT" means the Third Amendment and Limited Waiver
dated August 10, 2001 to this Agreement by and among Company, Holdings,
Lenders as of the date of such amendment, the Joint Lead Arrangers,
Book Runner, Syndication Agent, Documentation Agent, Administrative
Agent and Collateral Agent."
"THIRD AMENDMENT CLOSING DATE" has the meaning assigned to
that term in the Third 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 lesser of (A) 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 and (B) (i) $155,000,000 until five (5) Business Days
following delivery by Holdings of the financial documents with respect
to the Fiscal Quarter ending September 30, 2001 to the Administrative
Agent and Lenders pursuant to 5.1(b) of this Agreement and (ii)
thereafter, for each Fiscal Quarter ending on the date indicated below,
the correlative amount indicated below for such Fiscal Quarter:
FISCAL QUARTER BORROWING BASE
AMOUNT
December 31, 2001 $175,000,000
March 31, 2002 $210,000,000
June 30, 2002 $225,000,000
1.2 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 ending September
30, 2001 of $76,000,000 shall be deleted and replaced by $92,500,000.
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SECTION 2. LIMITED WAIVER.
2.1 Subject to the terms and conditions set forth herein and in
reliance on the representations and warranties of Company and Holdings herein
contained, Requisite Lenders hereby waive any non-compliance with Section 6.6(a)
of the Credit Agreement with respect to the Fiscal Quarters ended September 30,
2001 and December 31, 2001; provided, however (i) the Revenues for such Fiscal
Quarters shall not be less than $76,000,000 and $82,500,000, respectively and
(ii) this waiver shall expire on January 1, 2002.
2.2 Without limiting the generality of the provisions of
subsection 10.5 of the Credit Agreement, the waiver set forth above shall be
limited precisely as written and relate solely to the waiver of the provisions
of the Credit Agreement in the manner and to the extent described above, and
nothing in this Amendment shall be deemed to:
(a) constitute a waiver of compliance by Company or
Holdings with respect to any other instance of any of the provisions of the
Credit Agreement referred to in Section 2.1 or any other term, provision or
condition of the Credit Agreement or any other instrument or agreement referred
to therein; or
(b) prejudice any right or remedy that Administrative
Agent or any Lender may now have (except to the extent such right or remedy was
based upon existing defaults that will not exist after giving effect to this
Amendment) or may have in the future under or in connection with the Credit
Agreement or any other instrument or agreement referred to therein.
Except as expressly set forth herein, the terms, provisions and
conditions of the Credit Agreement and the other Loan Documents shall remain in
full force and effect and in all other respects are hereby ratified and
confirmed.
SECTION 3. CONDITIONS PRECEDENT TO EFFECTIVENESS
3.1 The effectiveness of the amendments set forth at Section 1
hereof and the waiver set forth at Section 2 hereof are subject to the
satisfaction, or waiver, of the following conditions on or before the date
hereof (the "THIRD AMENDMENT CLOSING DATE"):
(a) The Company, Holdings and the Requisite Lenders shall
have indicated their agreement and consent by the execution and delivery of the
signature pages hereof to the Administrative Agent.
(b) As of the Third 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
Third 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 Third Amendment Closing Date and after
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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 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 4. REPRESENTATIONS AND WARRANTIES
4.1 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 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 5. ACKNOWLEDGMENT AND CONSENT
5.1 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".
5.2 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
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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).
5.3 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 Third 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.
5.4 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 6. MISCELLANEOUS
6.1 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.
6.2 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.
6.3 On and after the Third 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
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Amendment.
6.4 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.
6.5 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.
6.6 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.
6.7 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.
6.8 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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