Exhibit 10.1
Execution Copy
AMENDMENT, WAIVER, RESIGNATION
AND
APPOINTMENT
AGREEMENT
THIS AMENDMENT, WAIVER,
RESIGNATION AND APPOINTMENT AGREEMENT, dated as of
January 21, 2009 (this “ Amendment
”), is by and among FAIRPOINT COMMUNICATIONS, INC. , a
Delaware corporation (the “ Company ”),
the Lenders (as defined below) party hereto, LEHMAN COMMERCIAL
PAPER INC. (“ LCPI ”), a debtor and
debtor in possession under chapter 11 of the Bankruptcy Code (as
defined below), as resigning Administrative Agent, Collateral Agent
and Swingline Lender (as each such role is defined in the 2008
Credit Agreement defined below and in the other Credit Documents)
under the 2008 Credit Agreement (as defined below), and BANK OF
AMERICA, N.A. (“ Bank of America ”),
as Syndication Agent and as successor Administrative Agent,
Collateral Agent and Swingline Lender under the Amended Credit
Agreement (as defined below).
W I T N E S S E T
H:
WHEREAS , the Company is party to that certain Credit
Agreement, dated as of March 31, 2008 (as amended, restated or
otherwise modified to but excluding the Effective Date (as defined
below) hereof, the “ 2008 Credit Agreement
”), among the Company, as Borrower, the financial
institutions from time to time party thereto, as lenders
(collectively, the “ Lenders ” and each a
“ Lender ”), Morgan Stanley Senior
Funding, Inc., and Deutsche Bank Securities Inc., as
co-documentation agents, Bank of America, as Syndication Agent, and
LCPI, as Administrative Agent; capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such
terms in the 2008 Credit Agreement;
WHEREAS , the Company and certain subsidiaries thereof,
as pledgors, and LCPI, as Collateral Agent, are parties to a Pledge
Agreement, dated as of March 31, 2008 (the “
Pledge Agreement ”);
WHEREAS , Northern New England Telephone Operations LLC,
Telephone Operating Company of Vermont LLC and LCPI, as custodian
thereunder, are parties to a Deposit Agreement, dated as of
March 31, 2008 (the “ Deposit Agreement
”);
WHEREAS , on October 5, 2008, LCPI commenced a
voluntary case under chapter 11 of title 11 of the United States
Code (the “ Bankruptcy Code ”) and on
such date, pursuant to section 362(a) of the Bankruptcy Code,
an automatic stay went into effect that prohibits actions to
interfere with, or obtain possession or control of, LCPI’s
property or to collect or recover from LCPI any debts or claims
that arose before such date;
WHEREAS , on October 6, 2008, the United States
Bankruptcy Court for the Southern District of New York entered an
order (the “ Bankruptcy Court Order ”) in
the bankruptcy case of LCPI authorizing and empowering LCPI to
transfer, assign or resign from any administrative agent positions
in LCPI’s business judgment in accordance with the provisions
of any applicable credit agreements and in accordance with the
Bankruptcy Court Order; and
WHEREAS , the Company has notified the Lenders, pursuant
to the notice attached as Exhibit A hereto (the “
Notice ”), that (a) LCPI desires to resign
as Administrative Agent, Collateral Agent and Swingline Lender
under the Credit Documents and (b) Bank of America has agreed
to be appointed as successor Administrative Agent, Collateral Agent
and Swingline Lender under the Credit Documents, in each case in
accordance with (i) Section 10.10 of the Credit
Agreement, (ii) the Resignation, Assignment and Assumption
Agreement, substantially in the form of Exhibit B
attached hereto (the “ Agency Assignment and
Assumption ”), (iii) the Resignation, Assignment
and Assumption Agreement, substantially in the form of
Exhibit C attached hereto (the “ Custodian
Assignment and Assumption ” and, together with the
Agency Assignment and Assumption, the “ Assignment and
Assumption ”), and (iv) the terms and conditions
hereof;
NOW THEREFORE
, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
SECTION 1.01.
Conversion of LCPI RF Loans to
LCPI Loans .
(a)
Section 1.01 of the 2008 Credit
Agreement is hereby amended by inserting the following new clause
(g):
(g)
As of the Conversion Date, all of
the outstanding RF Loans of LCPI in the amount of $29,695,328.36
shall be converted to a new tranche of Loans payable in full on the
RF Loan Maturity Date (collectively, the “ LCPI Loans
”) and shall no longer be RF Loans thereafter. On the
Conversion Date, all LCPI Loans shall consist of LCPI Loans of the
same Type and may, at the option of the Borrower, be incurred and
maintained as, and/or converted into or continued as, Base Rate
Loans or Eurodollar Loans. Once prepaid or repaid, LCPI Loans
may not be reborrowed.
(b)
Section 1.05 of the 2008 Credit
Agreement is hereby amended by inserting the following new clause
(e-1) between clauses (e) and (f):
(e-1)
Each LCPI Note, if any, issued to
LCPI shall (i) be executed by the Borrower, (ii) be
payable to the order of LCPI and be dated as of the Conversion
Date, (iii) be in a stated principal amount equal to
$29,695,328.36, (iv) mature on the RF Maturity Date,
(v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar
Loans, as the case may be, evidenced thereby, (vi) be subject
to mandatory repayment as provided in
Section 3.03(A)(g) and (v) be entitled to the
benefits of this Agreement and the other Credit
Documents.
(c)
Section 1.09(a)(iv) of the
2008 Credit Agreement is hereby amended by inserting “LCPI
Loans,” between “RF Loans,” and “B Term
Loans”.
(d)
Clause (x) of the last full
paragraph of Section 1.13 of the 2008 Credit Agreement is
hereby revised to replace the phrase “outstanding Term Loans
and/or a Commitment
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hereunder” with the phrase
“outstanding Term Loans, LCPI Loans and/or a Commitment
hereunder”.
(e)
Section 3.01 of the 2008 Credit
Agreement is hereby amended by inserting the following new clause
(d):
(d)
The Borrower promises to repay 100%
of the outstanding LCPI Loans on the RF Maturity Date.
(f)
Clause (ii) of
Section 3.03A(g) of the 2008 Credit Agreement is hereby
amended by inserting “, LCPI Loans” between the words
“Term Loans” and “and RF Loans”.
(g)
Section 5.05(c) of the
2008 Credit Agreement is hereby amended by inserting “and the
LCPI Loans” after the phrase “The proceeds of the RF
Loans”.
(h)
The proviso in
Section 5.05(g) of the 2008 Credit Agreement is hereby
amended by inserting the words “and the LCPI Loans”
after the phrase “that proceeds of RF
Loans”.
(i)
Section 9 of the 2008 Credit
Agreement is hereby amended as follows:
(i)
(A) Clause (iv) of the
definition of “ Applicable Base Rate Margin ” is
hereby amended by inserting “and the LCPI Loans” after
the phrase “in the case of the RF Loans” and
(B) the table at the end of such definition is hereby deleted
in its entirety and replaced by the following (for ease of review,
changes are highlighted in bold/italics):
|
Leverage Ratio
|
|
Applicable Base Rate Margin
for
RF Loans, LCPI Loans and
Swingline Loans
|
|
|
Greater than or equal to 3.0:1.0
|
|
1.75
|
%
|
|
Less than 3.0:1.0
|
|
1.50
|
%
|
(ii)
(A) Clause (iv) of the
definition of “ Applicable Eurodollar Margin ”
is hereby amended by inserting “and the LCPI Loans”
after the phrase “in the case of the RF Loans” and
(B) the table at the end of such definition is hereby deleted
in its entirety and replaced by the following (for ease of review,
changes are highlighted in bold/italics):
3
|
Leverage Ratio
|
|
Applicable Eurodollar Margin
for
RF Loans, LCPI Loans and
Swingline Loans
|
|
|
Greater than or equal to
3.0:1.0
|
|
2.75
|
%
|
|
Less than 3.0:1.0
|
|
2.50
|
%
|
(iii)
Clause (a)(ii) of the
definition of “ Eurodollar Rate ” is hereby
amended by inserting “, the LCPI Loans” between the
words “Swingline Loans” and “and RF
Loans”.
(iv)
The definition of “
Facility ” is hereby amended by inserting “, the
LCPI Facility” after the words “the Delayed-Draw B Term
Facility” occurring before the proviso thereof.
(v)
Clause (iii) of the definition
of “ Maturity Date ” is hereby amended by
inserting “and the LCPI Loans” after the phrase
“and with respect to the RF Loans”.
(vi)
Clause (ii) of the definition
of “ Minimum Borrowing Amount ” is herby amended
by inserting “and the LCPI Loans” after the phrase
“in the case of RF Loans”.
(vii)
The definition of “
Note ” is hereby amended by inserting “, each
LCPI Note” between the words “each RF Note” and
“and the Swingline Note”.
(viii)
The parenthetical in clause
(A) of the proviso of the definition of “ Permitted
Acquisition ” is hereby amended by inserting the words
“and the LCPI Loans” after the phrase “including
proceeds of RF Loans”.
(ix)
The definition of “
Required Lenders ” is hereby amended in accordance
with Section 11.11(a)(iii) of the 2008 Credit Agreement
to read as follows (for ease of review, changes are highlighted in
bold/italics):
“ Required Lenders
” shall mean Non-Defaulting Lenders the sum of whose
outstanding A Term Loans, B Term Loans (and, if prior to the
termination thereof, Delayed-Draw B Term Commitments) , LCPI
Loans and Revolving Commitments (or, after the termination
thereof, outstanding RF Loans and Percentages of
(x) outstanding Swingline Loans and (y) Letter of Credit
Outstandings) constitute greater than 50% of the sum of
(i) all outstanding A Term Loans and B Term Loans (and if
prior to the termination thereof, Delayed-Draw B Term Commitments)
of Non-Defaulting Lenders, (ii) all outstanding LCPI
Loans and (iii) the Total Revolving
Commitment less the Revolving Commitments of all Defaulting Lenders
(or after the termination thereof, the sum of then total
outstanding RF Loans of Non-Defaulting Lenders and the
aggregate
4
Percentages of all Non-Defaulting
Lenders of the total outstanding Swingline Loans and Letter of
Credit Outstandings at such time).
(x)
The definition of “
Super-Majority Lender ” is hereby amended in
accordance with Section 11.11(a)(iii) of the 2008 Credit
Agreement to read as follows (for ease of review, changes are
highlighted in bold/italics):
“ Super-Majority
Lenders ” shall mean Non-Defaulting Lenders the sum of
whose outstanding A Term Loans, B Term Loans (and, if prior to the
termination thereof, Delayed-Draw B Term Commitments) , LCPI
Loans and Revolving Commitments (or, after the termination
thereof, outstanding RF Loans and Percentages of
(x) outstanding Swingline Loans and (y) Letter of Credit
Outstandings) constitute at least 75% of the sum of (i) all
outstanding A Term Loans and B Term Loans (and, if prior to the
termination thereof, Delayed-Draw B Term Commitments) of
Non-Defaulting Lenders , (ii) the LCPI
Loans and (iii) the Total Revolving
Commitment less the Revolving Commitments of all Defaulting Lenders
(or after the termination thereof, the sum of then total
outstanding RF Loans of Non-Defaulting Lenders and the aggregate
Percentages of all Non-Defaulting Lenders of the total outstanding
Swingline Loans and Letter of Credit Outstandings at such
time).
(xi)
The following defined terms are
hereby inserted in Section 9 of the 2008 Credit Agreement in
alphabetical order:
“ Conversion Date
” shall mean the effective date of the Amendment, Waiver,
Resignation and Appointment Agreement, dated as of January 21,
2009, among the Borrower, the Required Lenders party thereto, LCPI,
as resigning Administrative Agent, Collateral Agent and Swingline
Lender, and Bank of America, N.A., as successor Administrative
Agent, Collateral Agent and Swingline Lender.
“ LCPI Facility ”
shall mean the Facility evidenced by the LCPI Notes.
“ LCPI Note ”
shall mean a note substantially in the form of Exhibit B-5
with blanks appropriately completed in conformity herewith and
otherwise issued in accordance with
Section 1.05(e-1).
(j)
Section 11.04(b) of the
2008 Credit Agreement is hereby amended by (i) inserting a
reference to “LCPI Loans” between “Delayed-Draw
Term Commitments” and “and/or Revolving
Commitment” in the opening phrase of clause (x) and
(ii) inserting a new subclause (III) as
follows:
“(III) and in the case of
LCPI Loans, the lesser of (A) $10,000,000 and (B) the
greater of (1) $2,500,000 and (2) 33.33% of the aggregate
outstanding LCPI
5
Loans of the assigning Lender, and,
in each case such assigning Lender’s related rights and
obligations hereunder”.
(k)
The Exhibits to the 2008 Credit
Agreement are hereby amended by inserting Exhibit B-5,
attached hereto, in appropriate alphabetical and numerical
order.
(l)
Clause (X) of the second
proviso of Section 11.11(a) of the 2008 Credit Agreement
is hereby amended in accordance with the parenthetical of
Section 11.11(a)(iii) of the 2008 Credit Agreement by
inserting “, LCPI Loans” after the phrase “all
outstanding Term Loans”.
(m)
The Borrower, LCPI and the
undersigned Required Lenders (including the undersigned Majority
Lenders under the Revolving Credit Facility) hereby
(i) acknowledge and agree all the outstanding RF Loans of LCPI
shall be converted to LCPI Loans in accordance with the amendments
set forth in clauses (a) through (f) of this
Section 1.01 and shall no longer be RF Loans
thereafter, (ii) waive the requirements of
Section 2.03(g) of the 2008 Credit Agreement that require
all partial reductions of the Commitments under a Facility apply
proportionately to reduce the Commitment of each Lender under such
Facility solely with respect to the transactions described in this
Section 1.01 , (iii) agree that, effective as of
the Effective Date, all the Revolving Commitments of LCPI, in its
capacity as an RF Lender, are terminated and of no further force
and effect and (iv) acknowledge and agree that all the
Revolving Commitments of all the other RF Lenders, other than LCPI,
shall remain in full force and effect.
(n)
In consideration of the amendments
set forth in this Amendment, effective as of the Effective Date,
LCPI hereby waives (i) its right to pro rata sharing in any
prepayment or payment made with respect to the RF Loans pursuant to
Section 11.06(a) of the Amended Credit Agreement and
(ii) any right to prepayment of the LCPI Loans pursuant to
Section 2.02 of the Amended Credit Agreement so long as any RF
Loan remains outstanding under and in accordance with the Amended
Credit Agreement.
SECTION 1.02.
Replacement of References to
LCPI . Other than in
Sections 3.03(C), 1.01(h) and 1.05(e-1) of the 2008 Credit
Agreement, as amended herein, and in the definition of
“LCPI” contained in Section 9 of the 2008 Credit
Agreement, each instance of the words “Lehman Commercial
Paper Inc.” and “LCPI” in the 2008 Credit
Agreement are hereby replaced with “Bank of America,
N.A.”
SECTION 1.03.
Amendment to
Section 1.01(e) . Clause (i) of the second sentence
of Section 1.01(e) of the 2008 Credit Agreement is hereby
deleted in its entirety and replaced by the following:
(i) the Swingline Lender shall
not be obligated to make or maintain any Swingline Loan and any
advance of a Swingline Loan shall be made in the Swingline
Lender’s sole discretion
SECTION 1.04.
Amendment to
Section 1A.01(c) . Section 1A.01(c) of the 2008
Credit Agreement is hereby deleted in its entirety and replaced by
the following:
6
Notwithstanding the foregoing, in
the event that (i) a Lender Default exists or (ii) any
Letter of Credit Issuer determines in good faith or obtains actual
knowledge that any Lender is an Impacted Lender, the respective
Letter of Credit Issuer shall not be required to issue any Letter
of Credit unless arrangements satisfactory to the respective Letter
of Credit Issuer shall have been entered into (“
Section 1A.01(c) Arrangements ”) to
eliminate such Letter of Credit Issuer’s risk with respect to
the participation in Letters of Credit of such Defaulting Lender or
Impacted Lender or Lenders, which may include requiring the
Borrower to cash collateralize each Defaulting Lender’s or
Impacted Lender’s Percentage of the Letter of Credit
Outstandings; provided , that, if at any time a Lender is
deemed to no longer be an Impacted Lender in accordance with
Section 11.17(a) , any cash collateral provided by the
Borrower to collateralize such Lender’s Percentage of the
Letter of Credit Outstandings shall be released by each applicable
Letter of Credit Issuer and returned to the Borrower.
SECTION 1.05.
Amendment to
Section 2.01 .
(a) Each of the undersigned (including all of the RF Lenders)
hereby agrees that Section 2.01(a) of the 2008 Credit
Agreement is hereby amended by inserting the following immediately
after the phrase “each RF Lender that is a Non-Defaulting
Lender”: “and that is not an Impacted
Lender”.
(b)
Each of the undersigned (including
all of the RF Lenders) hereby agrees that
Section 2.01(c) of the 2008 Credit Agreement is hereby
amended by inserting the following immediately after the phrase
“for the account of each Non-Defaulting Lender”:
“that is not an Impacted Lender”.
SECTION 1.06.
Amendment to
Section 3.02 .
(a)
Section 3.02 of the 2008 Credit
Agreement is hereby amended by adding the following after the words
“The Borrower shall have the right to prepay Loans”
occurring in the first sentence thereof: “(other than
the LCPI Loans, to which such prepayments shall not be applied if
RF Loans are outstanding)”.
(b)
Clause (i) of Section 3.02
of the 2008 Credit Agreement is hereby amended by adding “,
LCPI Loans” after the words “whether such Loans are A
Term Loans under the A Term Facility, B Term Loans under the B Term
Facility, RF Loans”.
SECTION 1.07.
Amendment to
Section 7.09(a) and Related Provisions
.
(a)
Section 7.09(a) of the
2008 Credit Agreement is hereby amended by replacing the last
proviso thereto with the following:
provided , further , that the quarterly per share
dividend amount payable by the Borrower (after taking into account
any stock split or stock dividend) may not be:
(1) increased above the per share amount of the dividend paid
by the Company on October 17, 2008 except during any
Applicable Leverage Ratio Period; or (2) increased from the
amount of the dividend declared for the preceding quarter except
that, if at any time the Borrower declares a quarterly dividend
that is less than the per share amount of the dividend paid by the
Company on October 17,
7
2008, it may at any subsequent time
increase the quarterly dividend to any amount up to and including
the per share amount of the dividend paid by the Company on
October 17, 2008, so long as after giving effect thereto the
Borrower is in compliance with Section 7.09(a)(iii)
.
(b)
Section 7.09 of the 2008 Credit
Agreement is hereby amended by inserting the following new clause
(xvii):
(xvii) the Borrower may
prepay, repurchase, redeem or otherwise acquire for value any
Spinco Senior Notes so long as (A) no Default or Event of
Default is then in existence or would exist immediately after
giving effect thereto, (B) no Dividend Suspension Period is
then in effect, (C) the Minimum Liquidity Condition is
satisfied at such time (before and after giving effect to the
respective repayment, repurchase, redemption or acquisition of
Spinco Senior Notes), (D) the Borrower shall have delivered an
officer’s certificate on the date of the proposed repayment,
repurchase, redemption or acquisition certifying that the
Cumulative Distributable Cash on such date (after giving effect to
all prior and contemporaneous adjustments thereto, except as a
result of such proposed repayment, repurchase, redemption or
acquisition) exceeds the aggregate amount of the proposed
repayment, repurchase, redemption or acquisition of Spinco Senior
Notes, and (E) such Spinco Senior Notes shall be retired
promptly upon such repurchase, redemption or other acquisition by
the Borrower; provided , that in the event the Borrower
exercises its rights to redeem any Spinco Senior Notes in
accordance with the indenture governing such Spinco Senior Notes,
(x) the conditions set forth in the foregoing clauses
(A) through (D) of this Section 7.09(a)(xvii) shall
be satisfied as of the date of delivery of a redemption notice in
accordance with such indenture and (y) no Default under
Section 8.01 or 8.05 and no Event of Default shall exist as of
the date of or would exist immediately after giving effect to such
repayment, repurchase, redemption or acquisition of Spinco Senior
Notes. Notwithstanding anything herein to the contrary, any
gains of the Borrower arising from any prepayment, repurchase,
redemption or other acquisition of Spinco Senior Notes permitted
under this Section 7.09(a)(xvii) shall be deemed to be
“non-cash gains” for the purpose of calculating
Adjusted Consolidated EBITDA, Available Cash and Excess Cash Flow
and for all purposes under the Credit Documents.
(c)
In connection with the amendment
described in the foregoing clause (b) of this
Section 1.07 , clause (ii) of
Section 3.03(A)(f) of the 2008 Credit Agreement (which,
for the avoidance of doubt, excludes the remainder of such
Section 3.03(A)(f) commencing with “in each case
less”, which remaining portion shall remain unchanged) is
hereby deleted in its entirety and replaced by the
following:
“(ii) 90% of
(1) Excess Cash Flow, if any, during the preceding fiscal
quarter minus (2) the sum of (x) the amount of
Dividends paid in cash by the Borrower on the Borrower Common Stock
during such fiscal quarter as otherwise permitted by this Credit
Agreement and (y) the amount of prepayments,
repurchases,
8
redemptions or acquisitions of
Spinco Senior Notes paid in cash during such fiscal quarter as
permitted by Section 7.09(a)(xvii) of this Credit
Agreement”
(d)
In connection with the amendment
described in the foregoing clause (b) of this
Section 1.07 , the second parenthetical of clause
(ii) of the definition of “ Cumulative Distributable
Cash ” set forth in Section 9 of the 2008 Credit
Agreement is hereby amended by inserting the following at the end
of such parenthetical:
“but, for the avoidance of
doubt, including, without limitation, Restricted Payments made in
accordance with Section 7.09(a)(iii) or
Section 7.09(a)(xvii))”
(e)
In connection with the amendment
described in the foregoing clause (b) of this
Section 1.07 , the definition of “ Minimum
Liquidity Condition ” set forth in Section 9 of the
2008 Credit Agreement is hereby amended by replacing the phrase
“as of any date on which a Dividend is to be paid on the
Borrower Common Stock” with the phrase “as of any date
on which a Dividend is to be paid on the Borrower Common Stock
(including any such Dividend made pursuant to
Section 7.09(a)(iii)) or a Restricted Payment is to be made
pursuant to Section 7.09(a)(xvii)”.
SECTION 1.08.
Amendments to
Section 9.
Section 9 of the 2008 Credit Agreement is hereby amended,
effective as of the date that is one Business Day after the
Effective Date, by (a) adding the following new clause
(iii) to
