MEMORANDUM









Exhibit

10(d)(3)




 




SECOND AMENDMENT

TO CREDIT AND SECURITY AGREEMENT; AMENDMENT TO 


COLLATERAL AGREEMENTS




 




SECOND AMENDMENT TO CREDIT AND SECURITY AGREEMENT

(this “Second Amendment”), dated as of March 5, 2002 (the “Effective Date”),

between EXPANETS, INC., EXPANETS OF ARIZONA, INC., EXPANETS OF ATLANTA, INC.,

EXPANETS OF CALIFORNIA, INC., EXPANETS OF DENVER, INC., EXPANETS OF INDIANA,

INC., EXPANETS OF LANCASTER, INC., EXPANETS OF MISSISSIPPI, INC., EXPANETS OF

NEBRASKA, INC., EXPANETS OF NEW YORK, INC., EXPANETS OF NORTH AMERICA, LLC,

EXPANETS OF OKLAHOMA, INC., EXPANETS OF PACIFIC NORTHWEST, INC., EXPANETS OF

SAN ANTONIO, INC., EXPANETS OF TENNESSEE, INC., HAWAIIAN COMMUNICATIONS, INC.,

TEL-A-COM HAWAII, INC., DIGITEL, DBA EXPANETS OF HAWAII and EAGLE AN EXPANETS

COMPANY INC. (individually and collectively, “Debtor”) and AVAYA INC.

(“Creditor”).  All capitalized terms not

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

referred to below.




 




Background




 




A.            Expanets,

Inc. (“Parent”) 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 Parent to finance Parent’s purchase of Avaya

Products and Avaya Services.  The Original

Credit Agreement, as amended by the First Amendment (defined below), as amended

by this Second Amendment and as hereafter amended and modified from time to

time shall be referred to herein as the “Credit Agreement.”




 




B.            In

connection with the execution of the Original Credit Agreement, Parent and

Creditor entered into agreements restructuring the Collateral Agreements.




 




C.            Pursuant

to a First Amendment to Credit and Security Agreement dated as of August 1,

2001 (the “First Amendment”) between Parent and Creditor, Parent and Creditor

agreed to amend the Original Credit Agreement to, among other things, permit

Accounts and Inventory of Parent’s wholly-owned subsidiaries to become part of

the Borrowing Base to the extent Parent’s wholly-owned subsidiaries become

parties to the Credit Agreement.




 




D.            Pursuant

to a Joinder Agreement dated as of August 1, 2001 by Debtors (other than

Parent) in favor of Creditor, Debtor (other than Parent) agreed to become

parties to the Credit Agreement.




 




E.            

Debtor has requested an extension of the Termination Date until December 31,

2002.




 




F.             Subject

to terms and conditions set forth in this Second Amendment, Creditor has agreed

to Debtor’s request and Debtor and Creditor have agreed to amend the Credit

Agreement and the Collateral Agreements as provided herein.




 





























 




NOW, THEREFORE, 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 hereby, the parties agree

as follows:




 




1.             Amendments to

Credit Agreement.




 




(a)           Section 1.1 of the 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 this Second Amendment, and as

amended, modified, extended or restated from time to time.




 




“Assigned Property” definition is deleted.




 




“Contingent Assignment” definition is deleted.




 




“Credit Limit” at any time means, with respect to

Overdue Invoices, the lesser of (A) the Borrowing Base or (B) the following

dollar amount effective during the periods specified:




 








	

   


  	

   


  	

  Overdue

  Invoices


  	

   


  
	

  Prior to March

  5, 2002


  	

   


  	

  $


  	

  125,000,000


  	

   


  
	

  March 5, 2002-April 30, 2002


  	

   


  	

  $


  	

  100,000,000


  	

   


  
	

  May 1, 2002-August 30,

  2002


  	

   


  	

  $


  	

  80,000,000


  	

   


  
	

  Sept. 1,

  2002-December 31, 2002


  	

   


  	

  $


  	

  55,000,000


  	

   


  
	

  After December

  31, 2002


  	

   


  	

  0


  	

   


  










 




The resulting amount in (A) or (B) shall be further

permanently reduced by any payment made by Creditor, including amounts set off

against amounts due by Debtor, after the Effective Date under Section 2.6(B).




 




“Participation Interest” has the meaning given to such term in

Section 7.3.




 




“Termination Date” means the earlier of (A) the date on

which Creditor’s obligations to finance Debtor’s purchase of Avaya Products and

Avaya Services pursuant to the Collateral Agreements terminates pursuant to any

provision of this Agreement, (B) December 31, 2002, or (C) the date on which

all obligations of Debtor to Creditor under the Credit Documents are satisfied

in full.  Debtor acknowledges that time

is of the essence for an outside date of December 31, 2002 and that no further

extensions will be permitted.




 




(b)           Section 1.1 of the Original Credit

Agreement is hereby amended by adding the following definitions to Section 1.1

in the correct alphabetical order:




 




“Default Interest Rate” has the meaning given to such term in

Section 2.1(C)




 




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“ETAC Agreement” is a proposed Outsourcing Agreement

between Creditor and Debtor currently under negotiation with a scheduled

effective date of March 1, 2002.




 




“ETAC Confidential

Information ”

shall mean any information or compilation of information of Debtor that (i) is

not generally known, (ii) is or has been provided to Creditor under the TSA,

Schedules X-1 through X-5 or the ETAC Agreement (the “TSA/ETAC Agreements”),

and (iii) is particular and unique to the TSA/ETAC Agreements, but excluding

information which:




 




i.              is,

or becomes, a matter of public knowledge through no act of the Creditor;




 




ii.             is

rightfully disclosed to Creditor by a third party without a duty of

confidentiality;




 




iii.           

is disclosed by Debtor to a third party without a duty of confidentiality;




 




iv.            is

independently developed by Creditor; or




 




v.             is

disclosed by Creditor with the written permission of Debtor.




 




“Maintenance Fee

Agreement” shall

be as defined in the Restructuring Documents.




 




“Subordinated Note” means the $35,000,000 Promissory Note by

Debtor to Creditor dated March 31, 2000, as amended by the Restructuring

Documents.




 




“TSA” shall mean the Transition Services

Agreement as defined in the Collateral Agreements.




 




“TSA/ETAC Agreements” shall be as defined in the ETAC

Confidential Information definition




 




(c)           Section

2.1 (B) of the Credit Agreement is amended to provide that the Interest Free

Period is reduced from 45 days to 30 days for all Invoices issued after the

Effective Date.




 




(d)           Section

2.1 (C) of the Credit Agreement is amended to provide that (i) the 12 percent

interest rate applied to Overdue Invoices shall increase to 15 percent

effective September 1, 2002, and (ii) the interest rate applied to all Overdue

Invoices where any interest payment is not paid within five days of its due

date, and during the period such interest payment is not made, shall be 18

percent per annum (the “Default Interest Rate”).




 




(e)           Article

II is hereby amended by adding the following new Section 2.6:




 




“SECTION 2.6       Mandatory

Partial Payments. 




 




(A)          Debtor

shall make the following payments of principal under the Note on or before the

dates specified:




 




3





























 




	

  March 5, 2002


  	

   


  	

  $


  	

  25,000,000


  	

   


  
	

  April 30, 2002


  	

   


  	

  $


  	

  20,000,000


  	

   


  
	

  August 30, 2002


  	

   


  	

  $


  	

  25,000,000


  	

   


  





 




(B)           The

amount of any payments received or receivable by Debtor from Creditor after the

Effective Date due in accordance with the terms of the Maintenance Fee

Agreement shall be promptly paid, or shall be set off by Creditor, and applied

against amounts due under the Note (other than against amounts due under

Section 2.6(A) above) until all obligations of Debtor under the Credit

Agreement have been satisfied in full.”




 




(f)            Section

3.1 of the Credit Agreement is amended to add Debtor’s obligations to Creditor

under the Subordinated Note to the definition of secured “Liabilities”;

provided, however, that Creditor shall not be obligated to release its security

interest in the Collateral upon termination of the Credit Agreement under

Section 8.16 if, at the time of the proposed Termination of the Agreement, the

Subordinated Note has been accelerated by Creditor under the provisions of

Section 5(b) thereunder (or there is an Event of Default under the Subordinated

Note at the time of the proposed termination of the Credit Agreement and

Creditor accelerates the Subordinated Note after the expiration of the

applicable cure period thereunder).  In

the event of Creditor’s acceleration of the Subordinated Note, Creditor shall

not be obligated to release its security interest in the Collateral until the

later to occur of (i) termination of the Credit Agreement under Section 8.16

and (ii) satisfaction in full by Debtor of all obligations to Creditor under

the Subordinated Note.




 




(g)           Section

3.12 of the Credit Agreement is amended to provide that the 12 percent interest

rate provided therein shall increase to 15 percent on September 1, 2002.




 




(h)           Section

7.2 of the Credit Agreement is amended by adding the following new subparagraph

(H):




 




“(H)        The

Default Interest Rate shall accrue on all principal amounts due under the Note

in lieu of the interest rate provided in Section 2.1(C).”




 




(i)            Section

7.3 is hereby amended and restated in its entirety with the following:




 




“SECTION 7.3 Obligation

to Purchase Participation. Upon the occurrence of an Event of Default and

subject to the terms provided herein, Creditor shall have the right, in

addition to all other rights and remedies under the Agreement, law and equity,

to require NorthWestern from time to time to purchase a participation in the

credit extended under this Agreement and the Note (a “Participation Interest”).  Within five calendar days after written

notice to NorthWestern of an Event of Default under the Credit Documents,

Northwestern shall purchase from Creditor a Participation Interest in an amount

equal to the amount necessary to cure such Event of Default, or the entire

amount due under the Note in the event of acceleration thereof, (either the

“Purchase Price”), with the Purchase Price paid to Creditor within such

five-day period by immediately available funds. Timely payment by NorthWestern

of the full Purchase Price will be deemed to cure such Event of




 




4





























 




Default. 

NorthWestern’s failure to make timely payment of the full Purchase Price

will constitute a default by NorthWestern of its obligations under this Section

7.3. The transfer of the Participation Interest shall be represented by an

assignment of an interest equal to the Purchase Price and not a fractional

interest in the credit extended. The purchase of the Participation Interest

shall be subject to the following additional terms and conditions: (i)

NorthWestern shall not be entitled to exercise any of the rights or powers of

Creditor under the Credit Documents, including without limitation the right to

declare a Default or Event of Default or the right to foreclose on any of the

Collateral, (ii) Creditor as agent or otherwise shall not be required to remit

any interest, cost, expense or other amount to NorthWestern for any reason,

(iii) the obligations of Creditor as agent or otherwise arising from NorthWestern’s

purchase of a participation hereunder shall be limited to remitting to

NorthWestern any payments received on behalf of NorthWestern only after the

Liabilities have been satisfied in full and only to the extent of the Purchase

Price, and (iv) Northwestern shall not be required to purchase any

Participation Interests to the extent the Purchase Price thereof in the

aggregate exceeds $50,000,000; provided, however, any payments paid or required

to be paid to cure an Event of Default arising from Debtor’s or Northwestern’s

failure to make any of the payments required under Section 2.6(A) shall not be

included in calculating this limitation. 

In the event that (i) NorthWestern has purchased Creditor’s entire interest

in the credit extended under the Credit Documents, (ii) all Liabilities and

other amounts payable to Creditor under the Credit Documents have been

satisfied in full, and (iii) the Subordinated Note is not then in default, the

restrictions in this Section 7.3 shall terminate and Creditor shall assign to

NorthWestern all remaining rights to and interest in the Credit Documents. “




 




(j)            References

to the March 31, 2002 Termination Date in Sections 2.1(E) and 8.16 shall mean

December 31, 2002.




 




(k)           Exhibit

6.1 is amended and is hereby replaced in its entirety with Exhibit 6.1 attached

hereto. Exhibit 7.3 is hereby deleted in its entirety.




 




2.             Amendments to

Collateral Agreements and Restructuring Documents. Notwithstanding anything

to the contrary contained in any Collateral Agreement or Restructuring

Document, upon a breach by NorthWestern of its obligation to purchase a

Participation Interest under Section 7.3 (or, in the event that the aggregate

Purchase Price limitation has been reached, to the extent there exists an

uncured Event of Default), the obligations of Debtor under all Collateral

Agreements and the Restructuring Documents shall be deemed to be in default

unless such breach by NorthWestern or Event of Default, as the case may be, is

cured within five calendar days after the occurrence of such breach by

Northwestern (or Event of Default if the Purchase Price limitation in Section

7.3 has been reached).  This five-day

period shall supersede and replace and any other inconsistent and longer cure

period in any Collateral Agreement or Restructuring Document. In addition to

all other rights and remedies available to Creditor under each such agreement,

law or equity, and notwithstanding anything to the contrary contained therein,

Creditor shall thereupon have the right to immediately  (i) terminate any Collateral Agreement or

any other agreement referred to in the Restructuring Documents as a result of

the deemed default by Debtor thereunder without any additional cure or waiting

period, (ii) accelerate any amount due and payable to Creditor as a result of

such breach or termination, (iii) terminate any obligation of 




 




5





























 




Creditor that would otherwise survive termination of the applicable

Collateral Agreement or Restructuring Document, and (iv) use and disclose all

technical and business information in its possession relating to Debtor and its

customer base in order to allow Creditor to compete with Debtor, excluding

information specifically described as ETAC Confidential Information. To the

extent that the definition of confidential information under the ETAC Agreement

is inconsistent with ETAC Confidential Information, the definition of ETAC

Confidential Information shall supersede and replace any inconsistent

definition in the ETAC Agreement upon the occurrence of a cross-default as

contemplated in this Section.




 




3.             Waiver of Prior

Defaults.




 




(a)           Effective

upon the Creditor’s receipt of the payment due on March 5, 2002 under Section

2.6 (A), and subject to the accuracy of the representations and warranties of

Debtor in Section 5 below as of the Effective Date and satisfaction of the

conditions set forth in Section 6 below, Creditor agrees to waive any existing

defaults, or release any claims of a potential default, under the Credit

Documents relating to any events, acts or omissions occurring prior to the

Effective Date.




 




(b)           Creditor

agrees to waive the following defaults by Debtor until the earlier to occur of

April 30, 2002 or the occurrence of any other Event of Default under the Credit

Agreement:




 




(i)            failure

under Section 6.1A(1) to deliver the aging reports of the Accounts of Debtor.




 




(ii)           failure

to deliver weekly Borrowing Base certificates as provided in Section 6.1(A)(2),

provided Debtor completes and delivers such certificates at least every 30

days.




 




(c)           Except

as expressly set forth herein, the execution, delivery and effectiveness of

this Second Amendment shall not operate as a waiver of any right, power or

remedy of Creditor under the Credit Agreement, or constitute a waiver of any

other Default or Event of Default or any provision of the Credit Agreement.




 




4.             Incorporation of

Terms.  The terms of this Second

Amendment are hereby incorporated into the Credit Agreement and the Collateral

Agreements.




 




5.             Representations

and Warranties.




 




(a)           Debtor

represents and warrants to Creditor that:




 




(1)           The

execution and delivery of this Second Amendment has been duly authorized by all

necessary corporate action.




 




(2)           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;




 




(3)           Except

as disclosed in Section 3 above, no Default or Event of Default has occurred or

is continuing;




 




6





























 




(4)           The

Credit Documents continue in full force and effect and Debtor does not have any

charge, lien, claim or offset against Creditor, or defenses to enforcement of

the Credit Documents by Creditor; and




 




(5)           The

Collateral, and Creditor’s security interest therein, secures all Liabilities,

including without limitation, liabilities created under this Second Amendment

or in connection herewith.




 




(b)           Creditor

represents and warrants to Debtor the execution and delivery of this Second

Amendment has been duly authorized by all necessary corporate action.




 




6.             Conditions to

this Second Amendment.  Without

limiting the conditions set forth in Section 4 of the Credit Agreement, the

effectiveness of the transactions contemplated by this Second Amendment is

subject to the satisfaction of the following conditions:




 




(a)           The

payment required to be made by Debtor on March 5, 2002 under Section 2.6(A)

shall have been received by Creditor.




 




(b)           Creditor

receives from Debtor an updated Borrowing Base certificate reflecting the new

Credit Limit.




 




(c)           All

legal fees and expenses of Creditor incidental to the negotiations and

preparation of this Second Amendment shall have been reimbursed by Debtor to

Creditor, subject to a maximum reimbursement hereunder of $25,000.




 




(d)           The

representations and warranties of Debtor in Section 5 above are true and

correct as of the Effective Date.




 




7.             Release        Debtor

and Northwestern hereby, jointly and severally, release Creditor from any and

all liabilities, actions, claims and causes of action of any nature, whether

known or unknown, which Debtor shall or may have with respect to any matters,

transactions, occurrences, agreements, actions, events arising out of, in

connection with or relating to the Credit Documents, provided,  however,

that the foregoing release shall not apply to any claims arising after the date

hereof with respect to acts, occurrences or events taking place after the date

hereof.




 




8.             Miscellaneous.




 




(a)           The

First and Second Amendment contain all of the modifications to the Credit

Agreement.  No further modifications

shall be deemed effective, unless in writing executed by the parties hereto.




 




(b)           This

Second Amendment shall be construed and enforced in accordance with the laws of

the State of New York.




 




(c)           This

Second 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 Second Amendment by signing any such

counterpart.




 




7





























 




(d)           This

Second Amendment shall become effective as of the Effective Date when it shall

have been executed by Debtor and Creditor and the conditions in Section 6 above

have been fully satisfied, and it shall thereafter be binding upon and inure to

the benefit of Debtor and Creditor and their respective successors and

assigns.  Creditor shall have the right

to assign its rights and obligations under the Credit Documents. Except with

the prior written consent of Creditor, Debtor shall not have the right to assign

any right or obligation hereunder or any interest herein.




 




(e)           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.




 




 




[Signatures on following page]




 




8





























 




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.


  	

   


  
	

   


  	

  EXPANETS OF ARIZONA, INC.


  	

   


  
	

   


  	

  EXPANETS OF ATLANTA, INC.


  	

   


  
	

   


  	

  EXPANETS OF CALIFORNIA, INC.


  	

   


  
	

   


  	

  EXPANETS OF DENVER, INC.


  	

   


  
	

   


  	

  EXPANETS OF INDIANA, INC.


  	

   


  
	

   


  	

  EXPANETS OF LANCASTER, INC.


  	

   


  
	

   


  	

  EXPANETS OF MISSISSIPPI, INC.


  	

   


  
	

   


  	

  EXPANETS OF NEBRASKA, INC.


  	

   


  
	

   


  	

  EXPANETS OF NEW YORK, INC.


  	

   


  
	

   


  	

  EXPANETS OF NORTH AMERICA, LLC


  	

   


  
	

   


  	

  EXPANETS OF OKLAHOMA, INC.


  	

   


  
	

   


  	

  EXPANETS OF PACIFIC NORTHWEST, INC.


  	

   


  
	

   


  	

  EXPANETS OF SAN ANTONIO, INC.


  	

   


  
	

   


  	

  EXPANETS OF TENNESSEE, INC.


  	

   


  
	

   


  	

  HAWAIIAN COMMUNICATIONS, INC.


  	

   


  
	

   


  	

  TEL-A-COM HAWAII, INC.


  	

   


  
	

   


  	

  DIGITEL, DBA EXPANETS OF HAWAII


  	

   


  
	

   


  	

  EAGLE AN EXPANETS COMPANY INC.


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

  /s/  James R.

  Walker


  	

   


  	

   


  
	

   


  	

   


  	

  Name: James R. Walker


  	

   


  
	

   


  	

   


  	

  Chief Executive Officer


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  AVAYA INC.


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

  /s/ Garry K. McGuire


  	

   


  	

   


  
	

   


  	

   


  	

  Name:  Garry

  K. McGuire


  	

   


  
	

   


  	

   


  	

  Chief Financial Officer


  	

   


  
	

   


  	

   


  	

   


  
	

  NorthWestern Corporation hereby reaffirms its

  obligations under Section 7.3 of the Credit Agreement, as amended, and agrees

  to the Release provided in Section 7 above.


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  NORTHWESTERN CORPORATION


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

  /s/ Kipp Orme


  	

   


  	

   


  
	

   


  	

   


  	

  Name:  Kipp

  D. Orme


  	

   


  
	

   


  	

   


  	

  Vice President and Chief Financial Officer


  	

   


  





 




9