Exhibit 10.16
C TERM NOTE - FIXED RATE
$____________ New York, New York
______ __, ____
FOR VALUE RECEIVED, FAIRPOINT COMMUNICATIONS, INC. (f/k/a MJD
Communications, Inc.), a Delaware corporation (the "Borrower"), hereby promises
to pay to the order of __________ (the "LENDER"), in lawful money of the United
States of America in immediately available funds, at the Payment Office (as
defined in the Agreement referred to below) initially located at ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the principal sum of ________________________
($_________), which aggregate amount shall be payable as provided on Schedule I
hereto. Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Agreement referred to below.
The Borrower also promises to pay interest on the unpaid principal amount
hereof in like money at said office from the date hereof until paid at the rates
and at the times provided in Section 1 of this Note. All payments of principal,
interest and all other amounts due under this Note shall be made in the manner
provided in Section 3.03 of the Agreement referred to below.
This Note is one of the C Term Notes-Fixed Rate referred to in the Credit
Agreement, dated as of March 30, 1998 and amended and restated as of March 6,
2003, among the Borrower, the lenders from time to time party thereto (including
the Lender), Bank of America, N.A., as Syndication Agent, Wachovia Bank, N.A.,
as Documentation Agent, and Deutsche Bank Trust Company Americas (f/k/a Bankers
Trust Company), as Administrative Agent (as so amended and restated and as the
same may be further amended, amended and restated, modified or supplemented from
time to time, the "AGREEMENT"), and is entitled to the benefits thereof and of
the other Credit Documents (as defined in the Agreement). This Note is secured
equally and ratably with all other Notes issued pursuant to the Agreement and is
subject to voluntary prepayment as set forth in Section 2 below.
In case an Event of Default shall occur and be continuing, the principal of
and accrued interest on this Note may be declared to be or become due and
payable in the manner and with the effect provided in the Agreement.
SECTION 1. INTEREST. During the period commencing on the Restatement
Effective Date and ending on the FRE Date identified on Schedule I hereto (the
"FIXED RATE PERIOD"), interest shall accrue on the unpaid principal amount of
this Note at a rate of __________ percent (____%) per annum and shall be payable
quarterly in arrears on
the last Business Day of each March, June, September and December commencing on
March 31, 2003 and on any prepayment, at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand. From and after the FRE Date,
interest shall be payable on this Note as provided in the Agreement for
Eurodollar Loans and/or Base Rate Loans as the Loans evidenced hereby shall be
maintained from time to time.
SECTION 2. VOLUNTARY PREPAYMENT. During the Fixed Rate Period, the Borrower
may, on one Business Day's prior notice, prepay in full, but not in part, the
outstanding principal balance of this Note. Notwithstanding the foregoing, the
Borrower's right to prepay shall be conditioned upon the payment of a surcharge
as defined and calculated below (the "SURCHARGE") on the date such prepayment is
made. The Surcharge shall be an amount equal to the sum of: (a) the present
value of any funding losses incurred or imputed by the Lender to be incurred as
a result of such prepayment, PLUS, (b) 0.5% of the amount prepaid. Such
Surcharge, including the amount of any funding losses incurred by the Lender,
shall be determined and calculated in accordance with methodology established by
the Lender and notified in writing to the Borrower. After the FRE Date, this
Note may be prepaid as provided in the Agreement.
SECTION 3. APPLICATION OF MANDATORY PREPAYMENTS. All mandatory prepayments
of Term Loans required pursuant to Section 3.02(A)(c) through (g) of the
Agreement that are to be applied to the C Term Loans-Fixed Rate (x) will first
be applied to those C Term Loans-Fixed Rate as to which the FRE Date has
occurred (all in accordance with the Agreement) and (y) to the extent (after
giving effect to all payments under clause (x)) such prepayments are to be
applied to C Term Loans-Fixed Rate as to which the FRE Date has not occurred,
such prepayment amount shall, unless otherwise agreed by the Borrower and the
Lender, be allocated among the outstanding principal amounts of such C Term
Loans-Fixed Rate, as determined by the Lender. To the extent any such prepayment
is applied to the outstanding principal balance of this Note during the Fixed
Rate Period, a Surcharge shall be payable in connection with such prepayment.
SECTION 4. APPLICATION OF SCHEDULED REPAYMENTS. Each Scheduled Repayment of
C Term Loans-Fixed Rate made by the Borrower shall be allocated to this Note in
accordance with the repayment schedule set forth on Schedule I hereto.
SECTION 5. WAIVER. The Borrower hereby waives presentment, demand, protest
or notice of any kind in connection with this Note.
SECTION 6. GOVERNING LAW. THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
FAIRPOINT COMMUNICATIONS, INC.
(f/k/a MJD Communications, Inc.)
By
------------------------------------
Name:
Title: