Exhibit 10.5
EXECUTION
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT"), dated as of March
6, 2003, among FAIRPOINT CARRIER SERVICES, INC. (formerly known as FairPoint
Communications Solutions Corp., a Delaware corporation (the "BORROWER"); the
Credit Parties (other than the Parent) listed on the signature pages hereof, for
purposes of Section C hereof only; the lenders party to the Credit Agreement
referred to below (each, a "LENDER" and, collectively, the "LENDERS"); WACHOVIA
BANK, NATIONAL ASSOCIATION ("WACHOVIA"), as Administrative Agent (in such
capacity, the "ADMINISTRATIVE AGENT"); and DEUTSCHE BANK TRUST COMPANY AMERICAS
("DEUTSCHE BANK"). Unless otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement referred to below (as amended hereby)
are used as so defined.
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders and the Administrative Agent have
entered into that certain Amended and Restated Credit Agreement, dated as of
October 20, 1999, as amended and restated as of March 27, 2000, as further
amended and restated as of November 9, 2000, and as further amended and restated
as of May 10, 2002 (as so amended and restated, the "CREDIT AGREEMENT"); and
WHEREAS, Wachovia desires to resign as Administrative Agent and Collateral
Agent and the Lenders and the Borrower desire that Deutsche Bank assume (and
Deutsche Bank agrees to assume) the role of Administrative Agent and Collateral
Agent; and
WHEREAS, the Borrower and the Lenders desire to (i) provide for Deutsche
Bank to succeed Wachovia as Administrative Agent and Collateral Agent, (ii)
amend the Credit Agreement to (a) authorize the repayment in full by the
Borrower, and the purchase by THL Affiliate, of the outstanding Loans held by
certain Lenders, and (b) make certain other amendments thereto as set forth
below; and
WHEREAS, subject to the terms and conditions set forth below, the parties
hereto wish to amend the Credit Agreement as provided herein;
NOW, THEREFORE, it is hereby agreed that:
A. AMENDMENTS TO CREDIT AGREEMENT
1. Section 1 of the Credit Agreement is hereby amended by deleting the
definitions of "Eligible Transferee" and "Trigger Event", and inserting therein
the following new defined terms in appropriate alphabetical order:
"ELIGIBLE TRANSFEREE" shall mean and include (i) THL Affiliate and THL
Fund IV Bridge Corp., and (ii) a commercial bank, financial institution or
other institutional "accredited investor" as defined in SEC Regulation D;
PROVIDED that neither the Borrower nor any Affiliate of the Borrower shall
be an Eligible Transferee (other than THL Affiliate or THL Fund IV Bridge
Corp.) under this clause (ii).
"FIRST AMENDMENT" shall mean the First Amendment to this Agreement
dated as of March 6, 2003.
"FIRST AMENDMENT EFFECTIVE DATE" shall have the meaning assigned to
that term in the First Amendment.
"FIRST AMENDMENT NON-CONTINUING LENDER" shall mean Wachovia Bank,
National Association. After the First Amendment Effective Date, no First
Amendment Non-Continuing Lender shall be a Lender hereunder unless it
becomes a Lender after the First Amendment Effective Date by assignment
pursuant to Section 12.04.
"FIRST AMENDMENT TAKEOUT" shall mean the deemed satisfaction in full
of the outstanding principal amounts of the Tranche A Loan and Tranche B
Loan held by Wachovia and all other amounts owed hereunder with respect to
such Loans, upon payment by Borrower to Wachovia of an amount equal to
approximately $1,600,000 and agreed to by Wachovia and the Borrower.
"TRIGGER EVENT" shall mean, for purposes of this Agreement and the
Preferred Stock Issuance and Capital Contribution Agreement, with respect
to any Loan of a Lender, any of the following: (i) the failure of the
Borrower to pay any amount due with respect to such Loan (including
principal, interest, Fees and other amounts) in full in cash to such Lender
(or to Administrative Agent on its behalf) on the date such amount is due
(whether such amount is due by scheduled payment, at final maturity, by
acceleration or otherwise), giving effect to any applicable grace periods,
(ii) the delivery of any notice by Parent or Borrower to the Lenders of any
tender or similar offer (whether through one offer or a series of related
offers) to all holders of Parent Preferred Stock to retire, acquire,
purchase or redeem all or any portion of the outstanding Parent Preferred
Stock from each holder thereof, (iii) the making of any tender or similar
offer (whether through one offer or a series of related offers) to all
holders of Parent Preferred Stock by any Person (including, without
limitation, Parent or any of its Affiliates) to retire, acquire, purchase
or redeem all or any portion of the outstanding Parent Preferred Stock from
each holder thereof, (iv) the delivery of any notice by Parent or Borrower
to the Lenders of any written proposal by a Person other than Parent or any
of its Affiliates to acquire, purchase or redeem all or any portion of the
outstanding Parent Preferred Stock from
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each holder thereof pursuant to a tender or similar offer (whether through
one offer or a series of related offers) to all holders of Parent Preferred
Stock, (v) a bankruptcy or insolvency "Event of Default" under Section 8.05
of the Parent Credit Agreement (without giving effect to any applicable
grace periods), and (vi) a bankruptcy or insolvency Event of Default under
Section 10.05 (without giving effect to any applicable grace periods).
2. Section 2.01 of the Credit Agreement is hereby amended by adding at
the end thereof the following new subsection 2.01(d):
"(d) Notwithstanding anything contained herein to the contrary, each
Lender hereby agrees that upon giving effect on the First Amendment
Effective Date to the First Amendment Takeout, those principal amounts of
the Tranche A Loan and Tranche B Loan of each First Amendment
Non-Continuing Lender set forth on ANNEX I hereto shall cease to be
outstanding (it being understood that each Lender hereby waives, solely for
the benefit of each other Lender, any claim or right to any portion of the
First Amendment Takeout allocated to any other Lender on the First
Amendment Effective Date in accordance with the terms of this Agreement)
and shall be deemed satisfied in full.".
3. Section 5.02(k) of the Credit Agreement is hereby amended by
deleting the first sentence contained therein in its entirety and substituting
therefor the following:
"Upon the occurrence of any Trigger Event with respect to a Loan of
any Lender, such Lender shall have the option, at its sole discretion, in
accordance with the Preferred Stock Issuance and Capital Contribution
Agreement (but without giving effect to the definition of "Trigger Event"
contained therein) to convert (the "CONVERSION OPTION") all or a portion of
such Loan (and accrued and unpaid interest thereon and any other due and
unpaid Obligations) with respect to which a Trigger Event has occurred into
Parent Preferred Stock having a liquidation preference determined pursuant
to and in accordance with Section 2.1(b) of the Preferred Stock Issuance
and Capital Contribution Agreement."
4. Section 8.01 of the Credit Agreement is hereby amended by adding at
the end thereof the following sentence:
"Notwithstanding anything to the contrary contained herein, on and
after the First Amendment Effective Date the Borrower shall not be required
to furnish to the Administrative Agent any report or certificate, as the
case may be, otherwise required to be provided under any of Section
8.01(d)(ii), 8.01(g)(i), 8.01(h) or 8.01(i), if the events triggering the
Borrower's obligation to provide any such report or certificate, as the
case may be, shall not have occurred during the relevant period.".
5. Section 8.11 of the Credit Agreement is hereby amended by deleting
the reference to "December 31, 2004" contained therein and substituting therefor
"December 31, 2005".
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6. Section 8.13 of the Credit Agreement is hereby amended by deleting
such Section in its entirety.
7. Section 10 of the Credit Agreement is hereby amended by deleting in
its entirety the paragraph immediately following Section 10.12 contained therein
and substituting the following therefor:
"then, and in any such event, and at any time thereafter, if any Event
of Default shall then be continuing, the Administrative Agent may (x) upon
at least thirty days' prior written notice to the Lenders and (y) to the
extent not otherwise directed by Required Lenders, by written notice to the
Borrower, take any or all of the following actions, without prejudice to
the rights of the Administrative Agent or any Lender to enforce its claims
against any Subsidiary Guarantor or the Borrower, except as otherwise
specifically provided for in this Agreement (PROVIDED that, if an Event of
Default specified in Section 10.05 shall occur with respect to the
Borrower, the result which would occur upon the giving of written notice by
the Administrative Agent as specified in clause (a) below shall occur
automatically without the giving of any such notice):".
8. Section 10 of the Credit Agreement is hereby further amended by
adding at the end thereof the following paragraph:
"Notwithstanding anything in this Section 10 to the contrary, no
Lender shall exercise any remedy available to it in any way (other than the
Conversion Option) with respect to its Loans, or direct Administrative
Agent to exercise any such remedy, unless (x) such Lender shall have
elected to exercise its Conversion Option with respect to all or any
portion of its Loans and the Parent shall have failed to comply with any of
its material obligations under the Preferred Stock Issuance and Capital
Contribution Agreement with respect to any such Conversion Option, or (y) a
bankruptcy or insolvency Event of Default under Section 10.05 shall have
occurred and be continuing. Notwithstanding anything to the contrary
contained in this Agreement or the Preferred Stock Issuance and Capital
Contribution Agreement, each Lender may, at its election, (x) upon any
failure by Borrower after the First Amendment Effective Date to pay any
amount due hereunder with respect to any of the Tranche A Loan or Tranche B
Loan, as the case may be, of such Lender, within the applicable grace
period(s) provided in this Section 10, exercise its Conversion Option with
respect to all principal and interest on such Tranche A Loan or Tranche B
Loan, respectively, and all other amounts owed to it under this Agreement
and the Credit Documents with respect to such Loan, and (y) upon the
occurrence (without giving effect to any applicable grace periods) of (1) a
bankruptcy or insolvency "Event of Default" under Section 8.05 of the
Parent Credit Agreement or (2) a bankruptcy or insolvency Event of Default
under Section 10.5, exercise its Conversion Option with respect to all
principal and interest on its Loans and all other amounts owed to it under
this Agreement and the Credit Documents, in each case, without ability
(except as expressly set forth in clauses (x) and (y) of the preceding
sentence) or necessity of Administrative Agent or any other Lender to
exercise other remedies (including the remedies described in clauses (a)(i)
through (a)(iii) above) hereunder (it being understood that (1) any amounts
converted pursuant to this Section 10 shall be deemed to be converted on
the basis of a Trigger Event described in clause (i) of
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the definition of "Trigger Event" contained in Section 1 of the Preferred
Stock Issuance and Capital Contribution Agreement and (2) the "Clawback
Amount" referred to in Section 2.1(b) of the Preferred Stock Issuance and
Capital Contribution Agreement shall be calculated with respect to all
amounts converted pursuant to this Section 10).".
9. Section 12.12 of the Credit Agreement is hereby amended by (1)
deleting the "or" at the end of clause (v) thereof and substituting ";" therefor
and (2) adding immediately prior to the ";" at the end of clause (vi) thereof
the following:
" or (vii) change in any manner the definition of "Trigger Event".
10. Section 12 of the Credit Agreement is hereby amended by adding at
the end thereof the following new subsection 12.20:
"12.20 ACKNOWLEDGEMENT BY FIRST AMENDMENT NON-CONTINUING LENDERS;
WAIVER BY EXISTING LENDERS. Each First Amendment Non-Continuing Lender
hereby acknowledges that it has reviewed the terms and provisions of this
Agreement. Each First Amendment Non-Continuing Lender hereby acknowledges
and agrees that, from and after the First Amendment Effective Date, such
Non-Continuing Lender shall not be a Lender under this Agreement (unless
such First Amendment Non-Continuing Lender subsequently becomes a Lender by
assignment pursuant to Section 12.04) and, other than as set forth in
Section 12.13 of the Existing Credit Agreement, the rights and obligations
of such First Amendment Non-Continuing Lender under this Agreement shall be
terminated on and as of the First Amendment Effective Date.".
B. SUBSTITUTION OF DEUTSCHE BANK AS AGENT
1. Wachovia hereby resigns as Administrative Agent and Collateral
Agent, and Lenders hereby appoint Deutsche Bank (and Deutsche Bank hereby
accepts such appointment) as Administrative Agent and Collateral Agent. The
Borrower hereby consents to such appointment. The requirement for 15 days' prior
notice of resignation by Wachovia as Administrative Agent and Collateral Agent
is hereby waived by all parties hereto.
2. From and after the First Amendment Effective Date, all references
in the Security Documents and in the other Credit Documents to Wachovia, in its
capacity as Collateral Agent and/or Administrative Agent shall be deemed to be
references to Deutsche Bank.
C. ACKNOWLEDGMENT AND CONSENT
1. The Security Documents and the Credit Documents to which the
Borrower and other Credit Parties are party are herein referred to collectively
as the "CREDIT SUPPORT DOCUMENTS". Each Credit Party (other than the Parent)
which is party to this First Amendment (each a "CREDIT SUPPORT PARTY", and
collectively, "CREDIT SUPPORT PARTIES") hereby acknowledges that it has reviewed
the terms and provisions of the Credit Agreement and this Amendment. Each such
Credit Support Party hereby confirms that each Credit Support Document to which
it is a party or otherwise bound and all Collateral encumbered thereby (after
giving effect to the transactions contemplated hereby) will continue to guaranty
or secure, as the case may be, to the fullest extent set forth therein the
payment and performance of all
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"Guaranteed Obligations" and "Obligations" as the case may be (in each case as
such terms are defined in the applicable Credit Support Document), including
without limitation the payment and performance of all such "Guaranteed
Obligations" or "Obligations", as the case may be, in respect of the Obligations
of the Borrower now or hereafter existing under or in respect of the Credit
Agreement as amended by this Amendment (the "AMENDED AGREEMENT") and the other
Credit Documents. Each such 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. Each Credit Support Party
(other than the Borrower) 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 this Amendment, and (ii) nothing in the Amended
Agreement, this Amendment or any other Credit Document shall be deemed to
require the consent of such Credit Support Party to any future consents or
waivers to the Amended Agreement.
2. No Agent nor any Lender has or shall have, by reason of this
Amendment, the Credit Agreement or the other Credit Documents, a fiduciary
relationship in respect of the Borrower, any other Credit Party or Credit
Parties.
3. Each Credit Support Party hereby confirms, reaffirms and
acknowledges (i) that the Collateral Agent (for the benefit of the Secured
Creditors (as defined in each of the Credit Support Documents)) has a fully
perfected first Lien on, and security interest in, all right, title and interest
of such Credit Support Party in the Collateral, subject to no other Liens (other
than Permitted Liens) and (ii) the continuing validity and effectiveness of the
Collateral Agent's and Secured Creditors' rights under the Credit Documents and
applicable law.
4. Except as expressly set forth in this Amendment, each of the
undersigned hereby acknowledges and agrees that the execution and delivery by
any Agent and the Lenders of this Amendment shall not be deemed (i) to create a
course of dealing or otherwise obligate any Agent or the Lenders to execute
similar agreements under the same or similar circumstances in the future, and
(ii) to modify, relinquish or impair any right of any Agent or the Lenders to
receive any indemnity or similar payment from, or exercise any rights granted
by, any Person or entity as a result of any matter arising from or relating to
this Amendment.
D. ACKNOWLEDGEMENT BY THE BORROWER
The Borrower hereby acknowledges that the dissolution of FairPoint
Solutions Capital, LLC by the Borrower completed on February 6, 2003, was done
in compliance with Section 9.02(a)(i) of the Credit Agreement.
E. ACKNOWLEDGMENT AND CONSENT BY LENDERS
1. Each Lender hereby acknowledges and agrees that (i) the repurchase
on or about the First Amendment Effective Date of a portion of the outstanding
shares of Parent Preferred Stock held by each of Credit Suisse First Boston,
Cayman Branch ("CSFB") and Citicorp USA, Inc. (the "PARENT PREFERRED STOCK
REPURCHASE") and (ii) the purchase on or
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about the First Amendment Effective Date by THL Affiliate or THL Fund IV Bridge
Corp. of a portion of the outstanding shares of Parent Preferred Stock held by
each of CSFB, Citicorp USA, Inc., CoBank, ACB, CIT Lending Services Corporation,
and Bank of America, N.A. ("BOFA") (the "THL PARENT PREFERRED STOCK Purchase"),
do not constitute a "Trigger Event" and, therefore, do not give rise to the
Conversion Option provided in Section 5.02(k) of the Credit Agreement.
2. Each Lender hereby consents to the assignment to Parent of all
right, title and interest of the Borrower in the "FairPoint Communications"
trademark, and the Borrower hereby represents that such trademark has no
material value in the hands of the Borrower.
F. LIMITED WAIVER
Deutsche Bank (in its capacity as successor Administrative Agent)
hereby waives the $3,500 nonrefundable assignment fee otherwise required to be
paid to Administrative Agent under Section 12.04(b) of the Credit Agreement,
with respect to each of the BofA Assignment (as defined below) and the CSFB
Assignment (as defined below) (and any assignments from THL Affiliate to THL
Fund IV Bridge Corp.).
G. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective only upon the satisfaction of
all of the following conditions precedent (the date of satisfaction of such
conditions precedent being referred to herein as the "FIRST AMENDMENT EFFECTIVE
DATE"):
1. the Borrower, the other Credit Parties, the Administrative Agent,
the Collateral Agent and the Lenders shall have signed a counterpart hereof
(whether the same or different counterparts) and shall have delivered (including
by way of telecopier) the same to the Administrative Agent at the Notice Office;
2. the Borrower shall have delivered to the Lenders an acknowledgement
(in form and substance reasonably satisfactory to the Lenders) executed by the
Parent, to the effect that (i) the execution, delivery and effectiveness of this
Amendment do not impair, limit or otherwise affect adversely to the Lenders the
Parent's obligations under the Preferred Stock Issuance and Capital Contribution
Agreement and (ii) the rights granted in Section A.8 of this Amendment to
Lenders with respect to their Conversion Options are acknowledged and agreed to
by the Parent;
3. (i) each of (x) the Parent Preferred Stock Repurchase and (y) the
THL Parent Preferred Stock Purchase, shall have occurred and (ii) the holders of
the Parent Preferred Stock shall have executed a waiver with respect to their
pro rata repurchase rights under the certificate of designation of the Parent
Preferred Stock;
4. the Borrower shall have made arrangements reasonably satisfactory
to Wachovia for the payment of the amount referenced in the definition of First
Amendment Takeout to Wachovia on the First Amendment Effective Date;
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5. THL Affiliate or THL Fund IV Bridge Corp. shall have (1) entered
into an Assignment Agreement with BofA for the assignment of all of the
outstanding Loans of BofA (the "BOFA ASSIGNMENT"), and (2) made arrangements
reasonably satisfactory to BofA for the payment of the consideration for such
assignment referenced in the Assignment Agreement to BofA on the First Amendment
Effective Date;
6. THL Affiliate or THL Fund IV Bridge Corp. shall have (1) entered
into an Assignment Agreement with CSFB for the assignment of all of the
outstanding Loans of CSFB (the "CSFB ASSIGNMENT"), and (2) made arrangements
reasonably satisfactory to CSFB for the payment of the consideration for such
assignment referenced in the Assignment Agreement to CSFB on the First Amendment
Effective Date;
7. the Parent shall have entered into an agreement with Wachovia and
Deutsche Bank (which shall be in the form attached hereto as ANNEX A) to the
effect that during the period from the First Amendment Effective Date to the
date that is the second anniversary of the First Amendment Effective Date, the
dividend rate on the Parent Preferred Stock held by each of Wachovia and
Deutsche Bank shall be 15%, and thereafter, 17.428%;
8. the Parent, Deutsche Bank and the lenders under the Parent Credit
Agreement shall have entered into an amendment and restatement to the Parent
Credit Agreement, permitting the issuance of up to $225,000,000 of senior
unsecured notes, and such amendment and the Parent Credit Agreement as so
amended shall be in full force and effect;
9. Wachovia shall have delivered to Deutsche Bank all items of
Collateral described in ANNEX B hereto;
10. Deutsche Bank, as successor Collateral Agent, shall have received
duly executed UCC-3 assignment statements relating to all UCC-1 financing
statements filed in connection with the Security Documents, in each case
reflecting the assignment of the interest of Wachovia as Collateral Agent to
Deutsche Bank;
11. Deutsche Bank shall have received all documents or instruments
(duly executed where appropriate) necessary or advisable, in the opinion of
Deutsche Bank and its counsel, to maintain perfected security interests in favor
of Deutsche Bank, as successor Collateral Agent, in the Collateral under the
Security Agreement and the Pledge Agreement, together with any cover sheets for
filing such documents or instruments with the United States Patent and Trademark
Office;
12. Deutsche Bank shall have received certificates from the Borrower's
insurance broker or other evidence satisfactory to it that Deutsche Bank, as
successor Collateral Agent, has been named as loss payee, to the extent required
under subsection 6(j) of the Credit Agreement, under such policies of insurance
as are required to be maintained pursuant to such subsection;
13. The Borrower and Wachovia shall have taken such other actions and
delivered to Deutsche Bank such other documents as Deutsche Bank may reasonably
request (i) to maintain Collateral Agent's perfected security interests, and the
priority thereof, in all of the Collateral in favor of Deutsche Bank as
successor Collateral Agent and (ii) to evidence Wachovia's resignation as, and
Deutsche Bank's appointment as, Administrative Agent and
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Collateral Agent, and all such documents shall be in form and substance
satisfactory to Deutsche Bank and its counsel; and
H. MISCELLANEOUS PROVISIONS
1. In order to induce the Lenders to enter into this Amendment, the
Borrower hereby represents and warrants that (i) the representations and
warranties contained in the Credit Agreement and in the other Credit Documents
are true and correct in all material respects on and as of the First Amendment
Effective Date (except with respect to any representations and warranties
limited by their terms to a specific date, which shall be true and correct in
all material respects as of such date), and (ii) there exists no Default or
Event of Default under the Credit Agreement on the First Amendment Effective
Date, in each case both before and after giving effect to this Amendment.
2. This Amendment is limited as specified and shall not constitute an
amendment, modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document, and, except as expressly set
forth herein, no waiver or amendment contained herein shall be deemed to
prejudice any right or remedy that any Agent or Lender may now have or may have
in the future under or in connection with the Credit Agreement or any other
agreement or instrument referred to therein. Each of the Agents and the Lenders
hereby expressly reserves all such rights and remedies.
3. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
5. The Borrower acknowledges that all reasonable out-of-pocket costs
and expenses as described in Section 12.01 of the Credit Agreement incurred by
the Agents (including, without limitation, the reasonable fees and disbursements
of O'Melveny & Xxxxx LLP) with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of the Borrower.
6. From and after the First Amendment Effective Date, all references
in the Credit Agreement and in the other Credit Documents to the Credit
Agreement shall be deemed to be references to the Amended Agreement.
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Exhibit 10.5
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
be duly executed and delivered as of the date first above written.
CREDIT PARTIES: FAIRPOINT CARRIER SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President of Finance
FAIRPOINT COMMUNICATIONS
SOLUTIONS CORP. - NEW YORK (for
purposes of Section C only)
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President of Finance
FAIRPOINT COMMUNICATIONS
SOLUTIONS CORP. - VIRGINIA (for
purposes of Section C only)
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President of Finance
S-1
LENDERS: BANK OF AMERICA, N.A., as a Lender
By: /s/ XxXxxx X. Xxxx III
---------------------------
Name: XxXxxx X. Xxxx III
Title: Managing Director
DEUTSCHE BANK TRUST COMPANY
AMERICAS, individually, as a Lender, and
as Successor Administrative Agent
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Director
WACHOVIA BANK,
NATIONAL ASSOCIATION,
individually, as a First Amendment
Non-Continuing Lender, and as resigning
Administrative Agent and Collateral Agent
By: /s/ Xxxxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Director
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH, as a Lender
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
S-2
Exhibit 10.5
ANNEX A
[FORM OF SIDE LETTER]
March 6, 2003
FairPoint Communications, Inc.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: FAIRPOINT COMMUNICATIONS, INC. SERIES A PREFERRED STOCK
Ladies and Gentlemen:
Reference is made to (i) the Certificate of Designation of FairPoint
Communications, Inc., a Delaware corporation (the "Company"), relating to its
Series A Preferred Stock, par value $.01 per share (the "Series A Preferred
Stock"), filed with the Secretary of State of the State of Delaware on May 10,
2002 (the "Certificate of Designation"), which forms a part of the Company's
Seventh Amended and Restated Certificate of Incorporation (the "Certificate of
Incorporation"), and (ii) the Amended and Restated Credit Agreement, dated as of
October 20, 1999, as amended and restated as of March 27, 2000, as further
amended and restated as of November 9, 2000, as further amended and restated as
of May 10, 2002 and as further amended as of the date hereof (as so amended and
restated, the "Credit Agreement"), among FairPoint Carrier Services, Inc. (f/k/a
FairPoint Solutions Corp.) and the lenders listed on the signature pages
thereof.
(a) The undersigned is the record holder of _________ shares of
Series A Preferred Stock (the "Original Shares" and, together with any
additional shares of Series A Preferred Stock that may be issued to the
undersigned after the date hereof, directly or indirectly, on account of such
shares, the "Shares"). Notwithstanding anything to the contrary contained
herein, the "Shares" shall not include any additional shares of Series A
Preferred Stock that may be issued to the undersigned after the date hereof upon
exercise of the "Conversion Option" provided to the undersigned under the Credit
Agreement or any additional shares of Series A Preferred Stock that may be
issued to the undersigned after the date hereof, directly or indirectly, on
account of such shares.
(b) The undersigned hereby agrees that during the period commencing
on the date hereof and ending on the second anniversary of the date hereof (the
"Reduced Dividend Period") the term "Dividend Rate" as defined and used in the
Certificate of Designation with respect to the Shares shall mean 15.000% instead
of 17.428%.
Annex A-1
(c) The undersigned hereby agrees that during the Reduced Dividend
Period it will not sell, assign or otherwise transfer title to (collectively,
"Transfer") any of the Shares unless the transferee of such Shares agrees in
writing to be bound by the terms of this Letter Agreement for the remainder of
the Reduced Dividend Period. Any attempted Transfer of the Shares in
contravention of this provision shall, to the fullest extent permitted by law,
be void and of no effect and shall not bind or be recognized by the Company.
(d) The undersigned acknowledges and agrees that this Letter
Agreement does not constitute an amendment of the Certificate of Designation or
the Certificate of Incorporation. The undersigned agrees not to challenge the
enforceability of this Letter Agreement by asserting that a formal amendment to
the Certificate of Designation and/or the Certificate of Incorporation was
needed to effect the reduction in the Dividend Rate during the Reduced Dividend
Period contemplated by this Letter Agreement.
(e) This Letter Agreement has been duly authorized, executed and
delivered by the undersigned.
(f) This Letter Agreement shall be governed by and construed in all
respects under the laws of the State of Delaware, without reference to its
conflicts of laws rules or principles. This Letter Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. This Letter
Agreement may be amended only by an instrument in writing executed by the
undersigned and the Company. In case any provision contained in this Letter
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
If this Letter Agreement is consistent with your understanding of the
subject matter hereof, please so confirm by executing this Letter Agreement.
[NAME OF LENDER]
By:
------------------------------------
Name:
Title:
Acknowledged and Agreed:
FAIRPOINT COMMUNICATIONS, INC.
By:
--------------------------------------------
Name:
Title:
Annex A-2
ANNEX B
COLLATERAL DELIVERY
1. Insurance Certificate
2. Stock Certificates:
NUMBER
CLASS OF OF
PLEDGED CERT. PAR PLEDGED
ISSUER OF PLEDGED SHARES PLEDGOR SHARES NO. VALUE SHARES
--------------------------------------------------------------------------------------------------------------------
FairPoint Communications Solutions FairPoint Carrier Common 1 $ 1.00 100
Corp. - Virginia Services, Inc., f/k/a
FairPoint Communications
Solutions Corp
(f/k/a FairPoint Communications
Corp. - Virginia)
FairPoint Communications Solutions FairPoint Carrier Common 1 $ .01 100
Corp. - New York Services, Inc., f/k/a
FairPoint Communications
Solutions Corp
(x/x/x XxxxXxxxx Xxxxxxxxxxxxxx
Xxxx. - Xxx Xxxx)
Choice One Communications Inc. FairPoint Carrier Common 0757 $ .01 1,000,000
Services, Inc., f/k/a
FairPoint Communications
Solutions Corp.
Choice One Communications Inc. FairPoint Carrier Common 0654 $ .01 2,500,000
Services, Inc., f/k/a
FairPoint Communications
Solutions Corp.
Annex B-1
