EXECUTION
Exhibit 10.10
AMENDMENT TO SECURITY DOCUMENTS
This AMENDMENT TO SECURITY DOCUMENTS (this "AMENDMENT") is dated as of
May 10, 2002 and entered into by and among FairPoint Communications Solutions
Corp. ("COMPANY"), each of the other Assignors party to the Security Agreement
referred to below, each of the other pledgors ("PLEDGORS") party to the Pledge
Agreement referred to below, and Wachovia Bank, National Association, formerly
known as First Union National Bank, as Collateral Agent under each of the
Security Documents (as defined below) and as Pledgee under such Pledge Agreement
(in such capacities, "COLLATERAL AGENT") for the benefit of the Secured
Creditors (as defined in each of the Security Documents), and is made with
reference to that certain (i) Amended and Restated Security Agreement dated as
of October 20, 1999, as amended and restated as of March 27, 2000, and as
further amended and restated as of November 9, 2000 (as so amended and restated
and as otherwise amended, restated, supplemented or modified from time to time
to the date hereof, the "SECURITY AGREEMENT"), by and among Company, such
Assignors and Collateral Agent and (ii) Amended and Restated Pledge Agreement
dated as of October 20, 1999, as amended and restated as of March 27, 2000, and
as further amended and restated as of November 9, 2000 (as so amended and
restated and as otherwise amended, restated, supplemented or modified from time
to time after the date hereof, the "PLEDGE AGREEMENT"), by and among Company,
such Pledgors and Collateral Agent. The Security Agreement and the Pledge
Agreement are sometimes referred to herein collectively as the "SECURITY
DOCUMENTS." Unless otherwise indicated, capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Security
Agreement.
RECITALS
WHEREAS, the parties to each of the Security Agreement and the Pledge
Agreement desire to amend the Security Agreement and the Pledge Agreement,
respectively, to conform certain provisions contained in the Security Agreement
and the Pledge Agreement to Revised Article 9 of the Uniform Commercial Code as
in effect in the State of New York as of the date hereof;
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 SECURITY AGREEMENT
1.1 AMENDMENT TO SECTION 1.1: GRANT OF SECURITY INTEREST
Section 1.1(a) of the Security Agreement is hereby amended by deleting
in its entirety the language immediately preceding the semi-colon contained
therein and substituting the following therefor:
"As security for the prompt and complete payment and performance
when
due of all of its Obligations, each Assignor does hereby assign
and transfer unto the Collateral Agent, and does hereby pledge and
grant to the Collateral Agent for the benefit of the Secured
Creditors, a continuing security interest of first priority in and to
all of the right, title and interest of such Assignor in and to all of
the personal property and assets of such Assignor, whether now
existing or hereafter from time to time acquired, including without
limitation, the following"
1.2 AMENDMENT TO ARTICLE IX: DEFINITION
A. Article IX of the Security Agreement is hereby amended by deleting
each reference to "Uniform Commercial Code as in effect on the date hereof in
the State of New York" contained therein and substituting therefor "NY UCC".
B. Article IX of the Security Agreement is hereby further amended by
adding to such Article the following definition in proper alphabetical order:
"NY UCC" shall mean the Uniform Commercial Code, as in effect on the
date hereof or as it may hereafter be amended, in the State of New York.
1.3 AMENDMENT TO SECTION 10.1: NOTICES
Section 10.1(b) of the Security Agreement is hereby amended by
deleting it in its entirety and substituting the following therefor:
"(b) if to the Collateral Agent, at:
Wachovia Bank, National Association
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxx
Telephone No.: (000)000-0000
Facsimile No.: (000) 000-0000".
SECTION 2. AMENDMENTS TO PLEDGE AGREEMENT
2.1 AMENDMENT TO SECTION 1: DEFINITIONS; ANNEXES
Section 1 of the Pledge Agreement is hereby amended by deleting the
references to "Section 9-105(1)(i)", "Section 9-115(f)" and "Section 9-306(1)"
contained in the definitions of "Instrument", "Investment Property" and
"Proceeds", respectively, and substituting therefor "9-102(47)", "Section
9-102(49)" and "Section 9-102(64)", respectively.
2.2 AMENDMENT TO SECTION 3.2: PROCEDURES
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A. Section 3.2(a)(iii) of the Pledge Agreement is hereby amended by
deleting the references to "Sections 9-115(4)(a) and (b), 9-115(1)(e)" contained
therein and substituting therefor "Sections 9-314 and 9-312, 9-106",
respectively.
B. Section 3.2(b)(2) of the Pledge Agreement is hereby amended by
deleting the reference to "Section 9-155(4)(b)" contained therein and
substituting therefore "Section 9- 312".
2.3 AMENDMENT TO SECTION 20: NOTICES, ETC.
Section 20(ii) of the Pledge Agreement is hereby amended by deleting
it in its entirety and substituting the following therefor:
"(ii) if to the Pledgee, at:
Wachovia Bank, National Association
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxx
Telephone No.: (000)000-0000
Facsimile No.: (000) 000-0000".
SECTION 3. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE SECURITY DOCUMENTS AND THE OTHER CREDIT
DOCUMENTS.
(i) On and after the effective date of this Amendment, each
reference in the Security Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Security
Agreement and each reference in the other Credit Documents to the "Security
Agreement", "thereunder", "thereof" or words of like import referring to
the Security Agreement shall mean and be a reference to the Security
Agreement as amended hereby.
(ii) On and after the effective date of this Amendment, each
reference in the Pledge Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Pledge
Agreement and each reference in the other Credit Documents to the "Pledge
Agreement", "thereunder", thereof" or words of like import referring the
Pledge Agreement shall mean and be a reference to the Pledge Agreement as
amended hereby.
(iii) Except as specifically amended by this Amendment, each of the
Security Agreement, the Pledge Agreement and the other Credit Documents
shall remain in full force and effect and are hereby ratified and
confirmed.
(iv) 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
Collateral Agent or any Secured
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Creditor under any of the Security Agreement, the Pledge Agreement or any
of the other Credit Documents.
B. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
C. APPLICABLE LAW. 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 INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
D. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate 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;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment shall become effective upon the execution of a
counterpart hereof by Company, each Assignor and Pledgor and Collateral Agent
and receipt by Company and Collateral Agent of written or telephonic
notification of such execution and authorization of delivery thereof.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
WACHOVIA BANK, NATIONAL
ASSOCIATION, not in its capacity but solely as
Collateral Agent and Pledgee
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Director
FAIRPOINT COMMUNICATIONS
SOLUTIONS CORP., as Assignor and Pledgor
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President
Notice Address:
FairPoint Communications Solutions Corp.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Vice President of Finance/
Treasurer
FAIRPOINT COMMUNICATIONS
SOLUTIONS CORP. - NEW YORK, as Assignor
and Pledgor
By: /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------------------
Name Xxxxxx X. Xxxxx, xX.
Title: Senior Vice President
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FAIRPOINT COMMUNICATIONS
SOLUTIONS CORP. - VIRGINIA, , as Assignor
and Pledgor
By: /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------------------
Name Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President
FAIRPOINT SOLUTIONS CAPITAL, LLC, as
Assignor and Pledgor
By: /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------------------
Name Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President
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