FIRST AMENDMENT TO CREDIT AND SECUIRTY AGREEMENT









Exhibit 10(d)(2)




 




FIRST AMENDMENT TO

CREDIT AND SECUIRTY AGREEMENT




 




FIRST

AMENDMENT TO CREDIT AND SECURITY AGREEMENT (this “Amendment”), dates as of

August 1, 2001, between Expanets, Inc. (“Debtor”) and Avaya Inc.

(“Creditor”).  All capitalized terms not

defined herein shall have the meaning ascribed to them in the Credit Agreement

referred to below.




 




Background




 




A.            Debtor and Creditor executed a

Credit and Security Agreement dated as of March 31, 2001 (the “Original Credit

Agreement”) pursuant to which Creditor agreed to extend credit to Debtor to

finance Debtor’s purchase of Avaya Products and Avaya Services.




 




B.            Debtor has requested that the

Original Credit Agreement be amended to provide certain Accounts and Inventory

owned by the wholly-owned subsidiaries of Debtor be included in the Borrowing

Base.




 




C.            Creditor has agreed to Debtor’s

request on the terms and conditions set forth herein (the Original Credit

Agreement, as amended by this Amendment shall hereinafter be referred to as the

“Credit Agreement”).




 




NOW, THERFORE,

in consideration of the premises and other good and valuable consideration the

receipt and sufficiency of which is hereby acknowledged and intending to be

legally bound herby, the parties agree as follows:




 




1.                                      Amendment

to Original Credit Agreement.




 




(a)                                  Section 1.1 of the

Original Credit Agreement is hereby amended by amending the following

definitions in Section 1.1 to read as follows:




 




“Agreement”

means this Credit and Security Agreement, as amended by the First Amendment,

and as amended, modified, extended or restated from time to time




 




“Debtor” means

Expanets, Inc., and any wholly-owned subsidiary of Expanets, Inc. becoming a

party to the agreement pursuant to Section 2.1(G), (i) each in their respective

individual capacities and (ii) taken as a whole.




 




(b)                                 Section 1.1 of the

Original Credit Agreement is hereby amended by adding the following definition

to Section 1.1 in the correct alphabetical order:




 




“First

Amendment” means the First Amendment to Credit and Security Agreement dated August

1, 2001 between Creditor and Debtor.




 




(c)                                  Section 2.1 of the

Original Credit Agreement is hereby amended by adding the following new

subsection (G) immediately after subsection (F) and immediately before Section

2.2:




 





























 




“(G)         As a condition precedent to allowing

any Accounts or Inventory of any wholly-owned subsidiary of Expanets, Inc. to

be included in the Borrowing Base, such wholly-owned subsidiary of Expanets,

Inc. shall join in the Agreement as a “Debtor” by executing and delivery to

Creditor a Joinder Agreement in the form attached to the First Amendment as

Schedule 2.1(G) and comply with the terms of such joinder Agreement.”




 




(d)                                 Subsections 6.1(A)(1)

and (A)(2) are hereby amended to provide that, if any additional debtors are

joined to the Credit Agreement pursuant to Section 2.1(G) of the Credit

Agreement, the Debtors taken as a whole (not each Debtor in its individual

capacity) shall be required to deliver Borrowing Base Certificates and the

other reports required by Subsections 6.1(A)(1) and (A)(2).




 




(e)                                  Subsection 7.1(F) is

hereby amended to provide that, if any additional debtors are joined to the

Credit Agreement pursuant to Section 2.1(G) of the Credit Agreement, an Event

of Default shall occur under Subsection 7.1(F) at any time the Debtors taken as

a whole exceed (whether or not any Debtor in its individual capacity exceeds)

the $1,000,000.00 threshold.




 




(f)                                    Subsection 7.1(H)

is hereby amended to provide that, if any additional Debtors are joined to the

Credit Agreement pursuant to Section 2.1(G) of the Credit Agreement, an Event

of Default shall occur under Subsection 7.1(H) at any time the Debtors taken as

a whole exceed (whether or not any Debtor in its individual capacity exceeds)

the $1,000,000.00 threshold.




 




2.                                       Incorporation of Terms.  The terms of this Amendment are herby

incorporated into the Credit Agreement.




 




3.                                       Representations and Warranties.  Debtor represents and warrants to Creditor

that:




 




(a)                                  Debtor represents and

warrants that the execution and delivery of this Amendment has been duly

authorized by all necessary corporate action.




 




(b)                                 The representations

and warranties set forth in Article V of the Credit Agreement and in all other

Credit Documents are true and correct as of the date hereof;




 




(c)                                  No Default or Event

of Default has occurred or is continuing;




 




(d)                                 The Credit Document

continue in full force and effect and Debtor does not have my charge, lien,

claim or offset against Creditor, or defenses to environment of the Credit

Documents by Creditor, and




 




(e)                                  The Collateral, and

Creditor’s first priority security interest therein, secures all Liabilities,

including without limitation, liabilities created under this Amendment or in

connection herewith,




 




2





























 




4.                                       Miscellaneous.




 




(a)                                  This Amendment

contains all of the modifications to the Credit Agreement.  No further modifications shall be deemed

effective, unless in a writing executed by the parties hereto.




 




(b)                                 Except as expressly

set forth herein, the execution, delivery and effectiveness of this Amendment,

shall not operate as a waiver of any right, power or remedy of Creditor under

the Credit Agreement, or continue a waiver of any Default, or Event of Default

or any provision of the Credit Agreement.




 




(c)                                  This Amendment shall

be construed and enforced in accordance with the laws of the State of New York.




 




(d)                                 This Amendment may be

executed in any number of counterparts, all of which taken together shall

constitute one and the same instrument, and any of the parties hereto may

execute this Amendment by signing any such counterpart.




 




(e)                                  This Amendment shall

become effective when it shall have been executed by Debtor and Creditor, and

it shall thereafter be binding upon and inure to the benefit of Debtor and

Creditor and their respective successors and assigns, except that Debtor shall

not have the right to assign any right or obligation hereunder or any interest

herein.




 




(f)                                    The Credit

Agreement, as amended hereby, shall remain in full force and effect.  Execution of this Amendment shall not

constitute a novation among Debtor and Creditor.




 




 




IN WITNESS

WHEREOF, the undersigned have caused this Joinder Agreement to be duly executed

and delivered as of the date first above written.




 




 




	

   


  	

  EXPANETS, INC.


  	 

	

   


  	

  By:  


  	

  /s/ Chris

  Younger


  	 

	

   


  	

  Name:


  	

  Chris

  Younger


  	 

	

   


  	

   


  	 

	

   


  	

  AVAYA INC.


  	 

	

   


  	

  By:  


  	

  /s/ Charles

  D. Peiffer


  	

   


  
	

   


  	

  Name:


  	

   Charles D. Peiffer


  	 

					





 




NorthWestern

Corporation hereby reaffirms its obligations under Section 7.3 of the Credit

Agreement.




 




 




	

   


  	

  NORTHWESTERN CORPORATION


  
	

   


  	

  By:  


  	

  /s/ Eric

  Jacobsen


  
	

   


  	

  Name:


  	

  Eric

  Jacobsen


  





 




 




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