Exhibit 2.3
SECOND AMENDMENT TO MASTER
SERVICES AGREEMENT
This Second Amendment, dated as of
February 25, 2008 (this “ Amendment ”), to
Master Services Agreement as previously amended (the “
Agreement ”), dated as of January 15, 2007, by
and between Capgemini U.S. LLC, a Delaware limited liability
company with offices located at 623 Fifth Ave., 33 rd
Floor, New York, NY 10022 (“ Capgemini ”), and
FairPoint Communications, Inc., a Delaware corporation, with
its principal office located at 521 East Morehead Street,
Suite 250, Charlotte, NC 28202 (“ Client
” or “ FairPoint ”). Capitalized
terms used but not defined herein shall have the meaning given to
such terms in the Agreement and all references to Sections herein
are references to Sections of the Agreement.
In
consideration of the mutual promises herein made, and in
consideration of the agreements herein contained, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1.
Compensation . The following is hereby added to the
Agreement as a new Section 4(c):
“(c)
Deferred Amounts . Notwithstanding anything herein to
the contrary, any and all payments owed by Client under this
Agreement and in connection with Work Orders Nos. 1 and 2 (as
amended), or in connection with the termination of this Agreement,
up to an aggregate amount of $30 million (exclusive of any accrued
interest as provided in clause (ii) below) (collectively,
“ Deferred Amounts ”), may be withheld by Client
through the closing of the Acquisition and shall be paid on a
deferred basis and due to Capgemini as follows:
(i)
Commencing March 31, 2009, all Deferred Amounts owed and
unpaid by FairPoint shall be paid by FairPoint and due to Capgemini
in equal quarterly installments commencing with the first payment
on March 31, 2009 (the “ First Deferred Payment
Date ”) and ending with a final payment on
December 31, 2011; provided, however, that if the aggregate
amount owed and unpaid by FairPoint on March 31, 2008 shall
exceed $30 million, then such excess beyond $30 million shall be
paid by FairPoint and due to Capgemini on or before
December 31, 2008 (with interest at the rate and on the terms
specified in (ii) below) and the remaining balance of $30
million (the Deferred Amounts) shall be paid in equal quarterly
installments commencing on the First Deferred Payment Date and
ending on December 31, 2011 (and any additional amounts owed
by FairPoint after April 1, 2008 that exceeds the Deferred
Amounts ($30 million) shall be paid in accordance with
Section 4(a));
(ii)
Commencing April 1, 2008, Deferred Amounts outstanding from
time to time shall accrue interest at an annual rate of 6.25%, and
such interest shall be due and payable by FairPoint on a monthly
basis at the end of each calendar month beginning April 30,
2008 until such time as the Deferred Amounts have been repaid in
full. For illustrative purposes only, Attachment D hereto
sets forth examples of amounts deferred and payable amounts by
FairPoint under certain circumstances;
