Exhibit 10.7
SIXTH AMENDMENT TO CREDIT AGREEMENT
AND FIRST AMENDMENT TO PLEDGE AGREEMENT
SIXTH AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO PLEDGE
AGREEMENT (collectively, this "Amendment") dated as of March 30, 2001, among
FAIRPOINT COMMUNICATIONS, INC. (f/k/a MJD Communications, Inc.), a Delaware
corporation (the "Borrower"), the lenders from time to time party to the Credit
Agreement referred to below (the "Lenders"), FIRST UNION NATIONAL BANK, as
Documentation Agent (the "Documentation Agent"), BANK OF AMERICA, N.A. (f/k/a
Bank of America National Trust and Savings Association, successor by merger to
Bank of America, N.A. f/k/a Nationsbank, N.A. successor by merger to NATIONSBANK
OF TEXAS, N.A.), as Syndication Agent (the "Syndication Agent"), BANKERS TRUST
COMPANY, as Administrative Agent (the "Administrative Agent" and, together with
the Documentation Agent and the Syndication Agent, collectively, the "Agents")
and BANKERS TRUST COMPANY, as Pledgee under the Pledge Agreement referred to
below (the "Pledgee"). Unless otherwise indicated, all capitalized terms used
herein and not otherwise defined shall have the respective meanings provided
such terms in the Credit Agreement referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders and the Agents are parties to a
Credit Agreement, dated as of March 30, 1998 (as amended, modified or
supplemented to but not including the date hereof, the "Credit Agreement");
WHEREAS, the Borrower, various Subsidiaries of the Borrower and the
Pledgee are parties to a Pledge Agreement, dated as of March 30, 1998 (as
amended, modified or supplemented to, but not including, the date hereof, the
"Pledge Agreement"); and
WHEREAS, subject to the terms and conditions of this Amendment, the
parties hereto wish to amend the Credit Agreement and the Pledge Agreement, in
each case as herein provided;
NOW, THEREFORE, it is agreed:
I. AMENDMENTS TO CREDIT AGREEMENT.
1. Section 1.01(a) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
1.01(a) in lieu thereof:
"(a) Loans under the Initial B Term Facility (each, an "Initial B
Term Loan" and, collectively, the "Initial B Term Loans") (i) shall be
made to the Borrower pursuant to one or more drawings on and after the
Closing Date and prior to the Initial B Termination Date, provided that
Initial B Term Loans incurred pursuant to Initial B Term Commitments
created pursuant to an Initial B Term Commitment Renewal shall not be
subject to
the foregoing but shall be made within the time frame specified in the
definition of Initial B Term Commitment Renewal, (ii) except as
hereinafter provided, may, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans,
provided that all Initial B Term Loans made as part of the same Borrowing
shall, unless specifically provided herein, consist of Loans of the same
Type and (iii) shall not exceed in aggregate principal amount for any
Lender in respect of any incurrence of Initial B Term Loans the Initial B
Term Commitment, if any, of such Lender as in effect immediately prior to
such incurrence. Once repaid, Initial B Term Loans may not be reborrowed,
provided that Initial B Term Loans may be subsequently incurred to the
extent of the Initial B Term Commitments created pursuant to the Initial B
Term Commitment Renewal.".
2. Section 1.01(b) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
1.01(b) in lieu thereof:
"(b) Loans under the Initial C Term Facility shall be made pursuant
to the Total Initial C Term Commitment (each, an "Initial C Term
Loan-Floating Rate" and, collectively, the "Initial C Term Loans-Floating
Rate") and pursuant to the CoBank Commitment (each, a "C Term Loan-Fixed
Rate" and, collectively, the " C Term Loans-Fixed Rate"), with (A) the
Initial C Term Loans-Floating Rate (i) to be made to the Borrower pursuant
to a single drawing on the Closing Date (and not thereafter), (ii) except
as hereinafter provided, and, in any event, at the option of the Borrower,
to be incurred and maintained as, and/or converted into, Base Rate Loans
or Eurodollar Loans, provided that all Initial C Term Loans-Floating Rate
made as part of the same Borrowing shall, unless specifically provided
herein, consist of Loans of the same Type and (iii) not to exceed in
aggregate principal amount for any Lender at the time of incurrence of
Initial C Term Loans-Floating Rate on the Closing Date the Initial C Term
Commitment, if any, of such Lender as in effect on such date immediately
prior to such incurrence and (B) the C Term Loans-Fixed Rate to be made to
the Borrower by CoBank on the Closing Date (and not thereafter) by
converting the CoBank Continuing Loans into C Term Loans-Fixed Rate in the
aggregate amount of the CoBank Commitment. Once repaid, Initial C Term
Loans-Floating Rate and C-Term Loans-Fixed Rate may not be reborrowed.".
3. Section 1.01 of the Credit Agreement is hereby amended by
inserting the following new clauses (e) and (f) at the end of said Section:
"(e) Subject to Section 1.14 and the other terms and conditions set
forth herein, Loans under the Incremental B Term Facility (each, an
"Incremental B Term Loan" and, collectively, the "Incremental B Term
Loans") (i) shall be made to the Borrower pursuant to a single drawing on
the respective Incremental B Term Borrowing Date (which date, in any
event, shall be the date of effectiveness of the applicable Incremental
Term Loan Commitment Agreement pursuant to which such Incremental B Term
Loans are to be made and shall not be later than the Incremental Term
Commitment Termination Date); (ii) except as hereinafter provided, may, at
the option of the Borrower, be incurred and maintained as, and/or
converted into, Base Rate Loans or Eurodollar Loans, provided that
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all Incremental B Term Loans made as part of the same Borrowing shall,
unless specifically provided herein, consist of Loans of the same Type and
(iii) shall not exceed in aggregate principal amount for any Lender in
respect of any incurrence of Incremental B Term Loans the Incremental B
Term Commitment, if any, of such Lender as in effect immediately prior to
such incurrence. Once repaid, Incremental B Term Loans may not be
reborrowed.
(f) Subject to Section 1.14 and the other terms and conditions set
forth herein, Loans under the Incremental C Term Facility (each, an
"Incremental C Term Loan" and, collectively, the "Incremental C Term
Loans") (i) shall be made to the Borrower pursuant to a single drawing on
the respective Incremental C Term Borrowing Date (which date, in any
event, shall be the date of effectiveness of the applicable Incremental
Term Loan Commitment Agreement pursuant to which such Incremental C Term
Loans are to be made and shall not be later than the Incremental Term
Commitment Termination Date); (ii) except as hereinafter provided, may, at
the option of the Borrower, be incurred and maintained as, and/or
converted into, Base Rate Loans or Eurodollar Loans, provided that all
Incremental C Term Loans made as part of the same Borrowing shall, unless
specifically provided herein, consist of Loans of the same Type and (iii)
shall not exceed in aggregate principal amount for any Lender in respect
of any incurrence of Incremental C Term Loans the Incremental C Term
Commitment, if any, of such Lender as in effect immediately prior to such
incurrence. Once repaid, Incremental C Term Loans may not be reborrowed.".
4. Section 1.05(b) of the Credit Agreement is hereby amended by (i)
inserting the text "(or, if issued after the Closing Date, be dated the date of
the issuance thereof)" immediately following the text "Closing Date" in
subclause (ii) of said Section and (ii) deleting the parenthetical appearing in
subclause (iii) of said Section and inserting the text "(or, if issued after the
Closing Date, be in a stated principal amount equal to the outstanding principal
amount of B Term Loans of such Lender at such time)" in lieu thereof.
5. Section 1.05(c) of the Credit Agreement is hereby amended by (i)
inserting the text "(or, if issued after the Closing Date, be dated the date of
the issuance thereof)" immediately following the text "Closing Date" in
subclause (ii) of said Section and (ii) deleting the parenthetical appearing in
subclause (iii) of said Section and inserting the text "(or, if issued after the
Closing Date, be in a stated principal amount equal to the outstanding principal
amount of C Term Loans-Floating Rate of such Lender at such time)" in lieu
thereof.
6. Section 1.07 of the Credit Agreement is hereby amended by
deleting the first sentence of said Section in its entirety and inserting the
following new sentence in lieu thereof:
"All Loans under this Agreement (other than C Term Loans-Fixed Rate)
shall be made by the Lenders PRO RATA on the basis of their Initial B Term
Commitments, Incremental B Term Commitments, Initial C Term Commitments,
Incremental C Term
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Commitments, Revolving Commitments or Acquisition Commitments, as the case
may be, if any.".
7. Section 1 of the Credit Agreement is hereby amended by inserting
the following new Section 1.14 immediately after Section 1.13 appearing therein:
"1.14. INCREMENTAL TERM COMMITMENTS. (a) So long as no Default or
Event of Default then exists or would result therefrom, the Borrower
shall, in consultation with the Administrative Agent, have the right to
request on one or more occasions on and after the Sixth Amendment
Effective Date and prior to the Incremental Term Commitment Termination
Date that one or more Lenders (and/or one or more other Persons which will
become Lenders as provided below) provide Incremental B Term Commitments
and/or Incremental C Term Commitments and, subject to the terms and
conditions contained in this Agreement, make Incremental B Term Loans
and/or Incremental C Term Loans pursuant thereto, as the case may be, it
being understood and agreed, however, that (i) no Lender shall be
obligated to provide an Incremental Term Commitment as a result of any
such request by the Borrower, and until such time, if any, as such Lender
has agreed in its sole discretion to provide an Incremental Term
Commitment and executed and delivered to the Administrative Agent an
Incremental Term Loan Commitment Agreement as provided in clause (b) of
this Section 1.14, such Lender shall not be obligated to fund any
Incremental B Term Loans and/or Incremental C Term Loans, as the case may
be, (ii) any Lender (or, in the circumstances contemplated by clause (vii)
below, any other Person which will qualify as an Eligible Transferee) may
so provide an Incremental Term Commitment without the consent of any other
Lender, (iii) each provision of Incremental Term Commitments pursuant to
this Section 1.14 on a given date shall be in a minimum aggregate amount
(for all Lenders (including in the circumstances contemplated by clause
(vii) below, Eligible Transferees who will become Lenders)) of at least
$30,000,000, (iv) the aggregate amount of all Incremental Term Commitments
permitted to be provided pursuant to this Section 1.14 and the aggregate
principal amount of all Incremental Term Loans permitted to be made
pursuant to Sections 1.01(e) and (f) shall not, in either case, exceed
$150,000,000, (v) the relevant Incremental Term Loan Commitment Agreements
shall specifically set forth whether the Incremental Term Commitments in
respect thereof shall constitute either Incremental B Term Commitments or
Incremental C Term Commitments, (vi) the upfront fees payable in respect
of the relevant Incremental Term Commitments, the applicable voluntary
prepayment premiums (if any) payable in respect of the Incremental B Term
Loans and/or Incremental C Term Loans and the interest rate margin
applicable to the Incremental B Term Loans and/or Incremental C Term Loans
shall be as set forth in the relevant Incremental Term Loan Commitment
Agreement; PROVIDED that in no event shall the applicable interest rate
margin set forth in any such Incremental Term Loan Commitment Agreement
for any Incremental Term Loans exceed the Applicable Base Rate Margin or
Applicable Eurodollar Margin (in each case, as in effect on the Sixth
Amendment Effective Date) by more than 1.00%, (vii) if, within 10 Business
Days after the Borrower has requested the then existing Lenders (other
than Defaulting Lenders) to provide Incremental Term Commitments pursuant
to this Section 1.14 the Borrower has not received Incremental Term
Commitments in an aggregate
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amount equal to that amount of Incremental Term Commitments which the
Borrower desires to obtain pursuant to such request (as set forth in the
notice provided by the Borrower as provided below), then the Borrower may,
with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed), request Incremental Term Commitments
from Persons which would qualify as Eligible Transferees hereunder in an
aggregate amount equal to such deficiency (and with the fees to be paid to
such Eligible Transferee to be no greater than that to be paid to the then
existing Lenders providing Incremental Term Commitments), (viii) on each
Incremental Term Borrowing Date, each of the Administrative Agent and each
trustee for the Permitted Subordinated Debt shall have received an
officer's certificate from the chief financial officer of the Borrower in
form and substance reasonably satisfactory to the Administrative Agent,
which certificate shall (I) contain a representation and warranty that (x)
the Borrowing of Incremental B Term Loans and/or Incremental C Term Loans
(and the incurrence of Liens by the Borrower and the Subsidiary Guarantors
to secure such Obligations) do not conflict and are not inconsistent with
and do not result in any breach or violation of, any of the terms,
covenants, conditions or provisions of, or constitute a default under, any
terms of any Permitted Subordinated Debt or the documentation governing
the same, (y) after giving effect to the incurrence of such Loans, all of
the Obligations constitute "Senior Debt" under the documentation governing
the Permitted Subordinated Debt and (z) the respective Incremental Term
Loans are being incurred under the documentation governing each incurrence
of Permitted Subordinated Debt in reliance on the "Leverage Ratio"
incurrence test referred to therein and subclause (II) below (and that the
Borrower will not take a contrary position for any purpose), (II) certify
that the Borrower is in compliance with a Leverage Ratio (as defined in
the documentation governing the respective Permitted Subordinated Debt) of
not greater than 7.0:1.0 (after giving PRO FORMA effect to the incurrence
of the Incremental Term Loans to be incurred and as determined in
accordance with the requirements of the documentation governing the
respective Permitted Subordinated Debt), (III) be accompanied by financial
calculations in form and substance reasonably satisfactory to the
Administrative Agent establishing compliance with the Leverage Ratio
referred to in preceding clause (II) and (IV) certify compliance with the
requirements of the documentation governing all Permitted Subordinated
Debt and all applicable covenants contained therein; and (ix) all actions
taken by the Borrower pursuant to this Section 1.14 shall be done in
coordination with the Administrative Agent.
(b) At the time of any provision of Incremental Term Commitments
pursuant to this Section 1.14, (i) the Borrower, the Administrative Agent
and each such Lender or other Eligible Transferee (each, an "Incremental
Term Lender") which agrees to provide an Incremental Term Commitment shall
execute and deliver to the Administrative Agent an Incremental Term Loan
Commitment Agreement substantially in the form of Exhibit L (appropriately
completed), with the effectiveness of such Incremental Term Lender's
Incremental Term Commitment to occur upon delivery of such Incremental
Term Loan Commitment Agreement to the Administrative Agent and the payment
of any fees (including, without limitation, any fees payable pursuant to
clause (ii) below) required in connection therewith, (ii) the
Administrative Agent shall receive from the Borrower (or,
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to the extent agreed to by the Borrower and the respective Incremental
Term Lender, from such respective Incremental Term Lender) the payment of
a non-refundable fee of $3,500 for each Eligible Transferee which becomes
a Lender pursuant to this Section 1.14 and (iii) the Borrower shall
deliver to the Administrative Agent an opinion or opinions, in form and
substance reasonably satisfactory to the Administrative Agent, from
counsel to the Borrower reasonably satisfactory to the Administrative
Agent and dated such date, covering such of the matters set forth in the
opinions of counsel delivered to the Administrative Agent on the Closing
Date pursuant to Section 4.01(b) as may be reasonably requested by the
Administrative Agent, and such other matters as the Administrative Agent
may reasonably request (including an opinion as to no conflict with all
Permitted Subordinated Debt and the documentation governing the same). The
Administrative Agent shall promptly notify each Lender as to the
effectiveness of each Incremental Term Loan Commitment Agreement, and (i)
at such time Annex I shall be deemed modified to reflect the Incremental B
Term Commitments and/or Incremental C Term Commitments, as the case may
be, of such Incremental Term Lenders and (ii) to the extent requested by
such Incremental Term Lenders, B Term Notes and/or C Term Notes-Floating
Rate will be issued, at the Borrower's expense, to such Incremental Term
Lenders, to be in conformity with the requirements of Section 1.05 (with
appropriate modifications) to the extent needed to reflect the new
Incremental Term Loans made by such Incremental Term Lenders.
(c) In connection with each incurrence of Incremental B Term Loans
pursuant to Section 1.01(e) or Incremental C Term Loans pursuant to
Section 1.01(f), the Lenders and the Borrower hereby agree that,
notwithstanding anything to the contrary contained in this Agreement, the
Borrower and the Administrative Agent may take all such actions as may be
necessary to ensure that all Lenders with outstanding B Term Loans and C
Term Loans-Floating Rate, as the case may be, continue to participate in
each Borrowing of outstanding B Term Loans and C Term Loans-Floating Rate
(after giving effect to the incurrence of Incremental B Term Loans or
Incremental C Term Loans pursuant to Section 1.01(e) or (f), as the case
may be) on a PRO RATA basis, including by adding the Incremental B Term
Loans or the Incremental C Term Loans to be so incurred to the then
outstanding Borrowings of B Term Loans or C Term Loans-Floating Rate, as
the case may be, on a PRO RATA basis even though as a result thereof such
new Incremental B Term Loan or Incremental C Term Loan, as the case may be
(to the extent required to be maintained as Eurodollar Loans), may
effectively have a shorter Interest Period than the then outstanding
Borrowings of B Term Loans or C Term Loans-Floating Rate, as the case may
be, and it is hereby agreed that (x) to the extent any then outstanding
Borrowings of B Term Loans or C Term Loans-Floating Rate that are
maintained as Eurodollar Loans are affected as a result thereof, any costs
of the type described in Section 1.11 incurred by such Lenders in
connection therewith shall be for the account of the Borrower or (y) to
the extent the Incremental B Term Loans and Incremental C Term Loans to be
so incurred are added to the then outstanding Borrowings of B Term Loans
or C Term Loans-Floating Rate, as the case may be, which are maintained as
Eurodollar Loans, the Lenders that have made such additional Incremental B
Term Loans or Incremental C Term Loans, as the case may be, shall be
entitled to receive an effective
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interest rate on such additional Incremental B Term Loans or Incremental C
Term Loans, as the case may be, as is equal to the Eurodollar Rate as in
effect two Business Days prior to the incurrence of such additional
Incremental B Term Loans or Incremental C Term Loans, as the case may be,
plus the then Applicable Eurodollar Margin for such Term Loans until the
end of the respective Interest Period or Interest Periods with respect
thereto."
8. Section 2.01 of the Credit Agreement is hereby amended by
inserting the following new clause (f) at the end of said Section:
"(f) All voluntary prepayments of principal of B Term Loans and C
Term Loans-Floating Rate, in each case made on or after the occurrence of
the first Incremental Term Borrowing Date to occur after the Sixth
Amendment Effective Date and prior to the second anniversary of such
Incremental Term Borrowing Date, will be subject to payment to the
Administrative Agent, for the ratable account of each Lender with
outstanding B Term Loans and each Lender with outstanding C Term
Loans-Floating Rate, of a fee as follows: (x) if prior to the first
anniversary of the first Incremental Term Borrowing Date to occur after
the Sixth Amendment Effective Date, an amount equal to the Specified
Prepayment Premium Percentage of the aggregate principal amount of such
prepayment and (y) if payable on or after the first anniversary of the
first Incremental Term Borrowing Date to occur after the Sixth Amendment
Effective Date and prior to the second anniversary of such Incremental
Term Borrowing Date, an amount equal to the Specified Prepayment Premium
Percentage of the aggregate principal amount of such prepayment. Such
prepayment fees shall be due and payable upon the date of any voluntary
prepayment of such Term Loans.".
9. Section 2.02(a) of the Credit Agreement is hereby amended by (i)
deleting the comma appearing at the end of clause (x) of said Section and
inserting the word "and" in lieu thereof and (ii) deleting the text "any
reduction of the Total Revolving Commitment or Total Acquisition Commitment, as
the case may be, pursuant to this Section 2.02(a) shall reduce the then
remaining Scheduled Reductions applicable thereto PRO RATA and (z)" appearing in
said Section.
10. Section 2.03(a) of the Credit Agreement is hereby amended by
deleting the text "The Total Commitment (and the Commitment of each Lender)"
appearing in said Section and inserting the text "The Total Initial B Term
Commitment, the Total Initial C Term Commitment, the Co-Bank Commitment, the
Total Revolving Commitment and the Total Acquisition Commitment (and the Initial
B Term Commitment, Initial C Term Commitment, Co-Bank Commitment, Revolving
Commitment and Acquisition Commitment of each Lender with such a Commitment)" in
lieu thereof.
11. Section 2.03(b) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
2.03(b) in lieu thereof:
"(b) The Total Initial B Term Commitment shall (i) be reduced on the
date any Initial B Term Loans are incurred in an amount equal to the
aggregate principal amount
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of Initial B Term Loans so incurred, (ii) terminate in its entirety (to
the extent not theretofore terminated) at 5:00 P.M. (New York time) on the
Initial B Termination Date, whether or not any Initial B Term Loans are
incurred on such date, (iii) until terminated in full, be reduced on each
day on which Initial B Term Loans, if still outstanding, would be required
to be repaid pursuant to Sections 3.02(A)(c), (e) and (f) by the amount,
if any, by which the amount required to be applied pursuant to said
Sections to repay Initial B Term Loans (determined as if an unlimited
amount of Initial B Term Loans were actually outstanding) exceeds the
aggregate principal amount of Initial B Term Loans being repaid, (iv)
terminate in its entirety (to the extent not theretofore terminated) on
the date of the initial issuance of any Permitted Subordinated Debt, (v)
terminate in its entirety on the day on which a Change of Control occurs
and (vi) be increased after any Initial B Term Loans have been mandatorily
repaid pursuant to Section 3.02 or the Total Initial B Term Loan
Commitment has been reduced pursuant to clause (iii) or (iv) above in the
aggregate amount of such repayment and/or reduction to the extent new
Initial B Term Commitments are provided pursuant to an Initial B Term
Commitment Renewal.".
12. Section 2.03(c) of the Credit Agreement is hereby amended by
inserting the word "Initial" (i) immediately following the word "Total" and (ii)
immediately preceding the text "C Term Loans-Floating Rate", in each case
appearing in said Section.
13. Section 2.03(d) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
2.03(d) in lieu thereof:
"(d) The Incremental B Term Commitment of each Lender provided
pursuant to a particular Incremental Term Loan Commitment Agreement shall
terminate in its entirety on the respective Incremental B Term Borrowing
Date for such Incremental Term Loan Commitment Agreement (after giving
effect to the incurrence of the Incremental B Term Loans on each such
date).".
14. Section 2.03(e) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
2.03(e) in lieu thereof:
"(e) The Incremental C Term Commitment of each Lender provided
pursuant to a particular Incremental Term Loan Commitment Agreement shall
terminate in its entirety on the respective Incremental C Term Borrowing
Date for such Incremental Term Loan Commitment Agreement (after giving
effect to the incurrence of the Incremental C Term Loans on each such
date).".
15. Section 3.01 of the Credit Agreement is hereby amended by (i)
deleting the word "and" immediately prior to the text "(iv)" appearing in said
Section and (ii) inserting the following text at the end of said Section:
"; and (v) each prepayment of B Term Loans and C Term Loans-Floating
Rate pursuant to this Section 3.01 made on or after the occurrence of the
first Incremental Term Borrowing Date to occur after the Sixth Amendment
Effective Date and prior to the
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second anniversary of such Incremental Term Borrowing Date shall be
subject to the payment of the fee described in Section 2.01(f)".
16. Section 3.02(A)(b)(i) of the Credit Agreement is hereby amended
by (i) deleting the table appearing in said Section in its entirety and
inserting the following new table in lieu thereof:
"DATE AMOUNT
---- ------
June 30, 1998 [$171,976.35
September 30, 1998 $ 171,976.35
December 31, 1998 $ 171,976.35
March 31, 1999 $ 171,976.35
June 30, 1999 $ 171,976.35
September 30, 1999 $ 171,976.35
December 31, 1999 $ 171,976.35
March 31, 2000 $ 171,976.35
June 30, 2000 $ 171,976.35
September 30, 2000 $ 171,976.35
December 31, 2000 $ 171,976.35
March 31, 2001 $ 171,976.35
June 30, 2001 $ 171,976.35
September 30, 2001 $ 171,976.35
December 31, 2001 $ 171,976.35
March 31, 2002 $ 171,976.35
June 30, 2002 $ 171,976.35
September 30, 2002 $ 171,976.35
December 31, 2002 $ 171,976.35
March 31, 2003 $ 171,976.35
June 30, 2003 $ 171,976.35
September 30, 2003 $ 171,976.35
December 31, 2003 $ 171,976.35
March 31, 2004 $ 171,976.35
June 30, 2004 $ 171,976.35
September 30, 2004 $ 171,976.35
December 31, 2004 $ 10,719,297.50
March 31, 2005 $ 10,719,297.50
June 30, 2005 $ 10,719,297.50
September 30, 2005 $ 10,719,297.50
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"DATE AMOUNT
---- ------
December 31, 2005 $ 10,719,297.50
B Maturity Date $ 10,719,296.10]
and (ii) deleting the proviso appearing at the end of said Section and inserting
the following sentence in lieu thereof:
"In the event that the Borrower incurs any Incremental B Term Loans
pursuant to Section 1.01(e), then (i) each of the foregoing Scheduled
Repayments occurring after the date of such incurrence through and
including September 30, 2004 shall be increased by 0.25% of the aggregate
principal amount of the Incremental B Term Loans so incurred and (ii) each
of the foregoing Scheduled Repayments occurring after September 30, 2004
shall be increased by an amount equal to (x) the aggregate principal
amount of the Incremental B Term Loans so incurred less the portion
thereof allocated to the foregoing Scheduled Repayments as provided in the
preceding clause (i) divided by (y) 6.".
17. Section 3.02(A)(b)(ii) is hereby amended by (i) deleting the
table appearing in said Section in its entirety and inserting the following new
table in lieu thereof:
Floating Rate Fixed Rate
"Date Amount Amount
--------------------- ---------------- ------------
April 1, 1998 [$0 $ 313,567
June 30, 1998 $ 58,734 $ 301,638
September 30, 1998 $ 58,734 $ 307,321
December 31, 1998 $ 58,734 $ 330,617
March 31, 1999 $ 58,734 $ 336,530
June 30, 1999 $ 58,734 $ 342,560
September 30, 1999 $ 58,734 $ 348,712
December 31, 1999 $ 58,734 $ 363,736
March 31, 2000 $ 58,734 $ 370,135
June 30, 2000 $ 58,734 $ 376,663
September 30, 2000 $ 58,734 $ 383,321
December 31, 2000 $ 58,734 $ 402,613
March 31, 2001 $ 58,734 $ 409,540
June 30, 2001 $ 58,734 $ 416,606
September 30, 2001 $ 58,734 $ 515,704
December 31, 2001 $ 58,734 $ 529,893
March 31, 2002 $ 58,734 $ 539,266
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Floating Rate Fixed Rate
"Date Amount Amount
--------------------- ---------------- ------------
June 30, 2002 $ 58,734 $ 548,826
September 30, 2002 $ 58,734 $ 521,965
December 31, 2002 $ 58,734 $ 531,665
March 31, 2003 $ 58,734 $ 541,567
June 30, 2003 $ 58,734 $ 551,674
September 30, 2003 $ 58,734 $ 561,990
December 31, 2003 $ 58,734 $ 572,520
March 31, 2004 $ 58,734 $ 583,267
June 30, 2004 $ 58,734 $ 594,237
September 30, 2004 $ 58,734 $ 49,807
December 31, 2004 $ 58,734 $ 49,807
March 31, 2005 $ 58,734 $ 49,807
June 30, 2005 $ 2,731,130 $ 4,970,106
September 30, 2005 $ 2,731,130 $ 4,970,106
December 31, 2005 $ 2,731,130 $ 4,970,106
March 31, 2006 $ 2,731,130 $ 4,970,106
June 30, 2006 $ 2,731,130 $ 4,970,106
September 30, 2006 $ 2,731,130 $ 4,970,106
December 31, 2006 $ 2,731,130 $ 4,970,106
C Maturity Date $ 2,731,130 $ 4,970,106"].
and (ii) inserting the following sentence at the end of said Section:
------------------------------------------------------------------------------
"In the event that the Borrower incurs any Incremental C Term Loans
pursuant to Section 1.01(f), then (i) each of the Scheduled Repayments for
C Term Loans-Floating Rate occurring after the date of such incurrence
through and including March 31, 2005 shall be increased by 0.25% of the
aggregate principal amount of the Incremental C Term Loans so incurred and
(ii) each of the Scheduled Repayments for C Term Loans-Floating Rate
occurring after March 31, 2005 shall be increased by an amount equal to
(x) the aggregate principal amount of the Incremental C Term Loans so
incurred less the portion thereof allocated to the Scheduled Repayments
for C Term Loans-Floating Rate as provided in the preceding clause (i)
divided by (y) 8.".
18. Section 5.05(a) of the Credit Agreement is hereby amended by
inserting the text "(other than Incremental B Term Loans and Incremental C Term
Loans)" immediately after the text "all Term Loans" appearing in said Section.
-11-
19. Section 5.05(c) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
5.05(c) in lieu thereof:
"(c) The proceeds of AF Loans may only be used (x) for working
capital requirements, (y) to finance capital expenditure requirements
(including Permitted CLEC Expenditures) and Permitted Acquisitions and/or
(z) to repay RF Loans.".
20. Section 5.05 of the Credit Agreement is hereby further amended
by inserting the following new Section 5.05(e) immediately following Section
5.05(d) thereof:
"(e) The proceeds of all Incremental Term Loans shall be utilized on
the date of incurrence of such Loans for the same purposes as AF Loans
specified in Section 5.05(c) above."
21. Section 7.11(b) of the Credit Agreement is hereby amended by
deleting the table appearing in said Section in its entirety and inserting the
following new table in lieu thereof:
"FISCAL QUARTER ENDING RATIO
---------------------- -----
Trigger Date through 1.50 to 1.0
March 31, 2003
June 30, 2003 1.60 to 1.0
through September 31, 2003
December 31, 2003 1.65 to 1.0
through March 31, 2004
June 30, 2004 through 1.75 to 1.0
December 31, 2004
Thereafter 2.0 to 1.0
22. Section 7.12(b) of the Credit Agreement is hereby amended by
deleting the table appearing in said Section in its entirety and inserting the
following new table in lieu thereof:
"FISCAL QUARTER ENDING RATIO
---------------------- -----
Trigger Date through 6.50 to 1.0
September 30, 2002
December 31, 2002 6.25 to 1.0
-12-
through March 31, 2003
June 30, 2003 6.00 to 1.0
through September 30, 2003
December 31, 2003 5.75 to 1.0
through March 31, 2004
Thereafter 5.50 to 1.0".
23. Section 7.13(b) of the Credit Agreement is hereby amended by
deleting the table appearing in said Section in its entirety and inserting the
following new table in lieu thereof:
"FISCAL QUARTER ENDING RATIO
---------------------- -----
Trigger Date
through September 30, 2002 4.00 to 1.0
December 31, 2002
through September 30, 2003 3.50 to 1.0
Thereafter 3.25 to 1.0".
24. The definition of "Credit Documents" appearing in Section 9 of
the Credit Agreement is hereby amended by (i) deleting the word "and" appearing
in said definition and inserting a comma in lieu thereof and (ii) inserting the
text "and each Incremental Term Loan Commitment Agreement" immediately following
the text "Subsidiary Guaranty" appearing in said definition.
25. Section 9 of the Credit Agreement is hereby further amended by
(i) deleting the definitions of "Applicable Base Rate Margin", "Applicable CC
Percentage", "Applicable Eurodollar Margin", "B Term Commitment", "B Term
Commitment Renewal", "B Term Facility", "B Termination Date", "B Term Loan", "C
Term Commitment", "C Term Facility", "C Term Loan", "C Term Loans-Floating
Rate", "Margin Reduction Discount", "Scheduled Reductions" and "Total Term
Commitment" appearing in said Section and (ii) inserting in the appropriate
alphabetical order the following new definitions:
"Applicable Base Rate Margin" shall mean (i) in the case of AF Loans
and RF Loans, 1.75% LESS the Margin Reduction Discount, if any, (ii) in
the case of B Term Loans, 2.25% LESS the Margin Reduction Discount, if any
and (iii) in the case of C Term Loans-Floating Rate, 2.50% LESS the Margin
Reduction Discount, if any; PROVIDED that in the case of B Term Loans and
C Term Loans-Floating Rate, in the event that the "Applicable Base Rate
Margin" as set forth in any Incremental Term Loan Commitment
-13-
Agreement with any Incremental Term Lender exceeds the Applicable Base
Rate Margin then in effect under this Agreement (after giving effect to
any prior increases thereto pursuant to this proviso), the Applicable Base
Rate Margin as used herein shall be increased on the respective
Incremental Term Borrowing Date to the Applicable Base Rate Margin set
forth in such Incremental Term Loan Commitment Agreement.
"Applicable CC Percentage" shall mean, for any day, a percentage
equal to (i) in the case of RF Loans, (x) if the unutilized portion of the
Total Revolving Commitment on such day is less than 50% of the Total
Revolving Commitment on such day, 0.50% and (y) if the unutilized portion
of the Total Revolving Commitment on such day equals or exceeds 50% of the
Total Revolving Commitment on such day, 0.75% and (ii) in the case of AF
Loans, (x) if the unutilized portion of the Total Acquisition Commitment
on such day is less than 50% of the Total Acquisition Commitment on such
day, 0.50% and (y) if the unutilized portion of the Total Acquisition
Commitment on such day equals or exceeds 50% of the Total Acquisition
Commitment on such day, 0.75%.
"Applicable Eurodollar Margin" shall mean (i) in the case of AF
Loans and RF Loans, 2.75% LESS the Margin Reduction Discount, if any, (ii)
in the case of B Term Loans, 3.25% LESS the Margin Reduction Discount, if
any and (iii) in the case of C Term Loans-Floating Rate, 3.50% LESS the
Margin Reduction Discount, if any; PROVIDED that in the case of B Term
Loans and C Term Loans-Floating Rate, in the event that the "Applicable
Eurodollar Margin" as set forth in any Incremental Term Loan Commitment
Agreement with any Incremental Term Lender exceeds the Applicable
Eurodollar Margin then in effect under this Agreement (after giving effect
to any prior increases thereto pursuant to this proviso), the Applicable
Eurodollar Margin as used herein shall be increased on the respective
Incremental Term Borrowing Date to the Applicable Eurodollar Margin set
forth in such Incremental Term Loan Commitment Agreement.
"B Term Commitment" of any Lender shall mean the Initial B Term
Commitment and/or the Incremental B Term Commitment of such Lender.
"B Term Facility" shall mean and include the Initial B Term Facility
and the Incremental B Term Facility.
"B Term Loans" shall mean and include Initial B Term Loans and
Incremental B Term Loans.
"C Term Commitment" of any Lender shall mean the Initial C Term
Commitment and/or the Incremental C Term Commitment of such Lender.
"C Term Facility" shall mean and include the Initial C Term Facility
and the Incremental C Term Facility.
"C Term Loan-Floating Rate" shall mean each Initial C Term
Loan-Floating Rate and each Incremental C Term Loan.
-14-
"C Term Loans" shall mean each C Term Loan-Floating Rate and each C
Term Loan-Fixed Rate.
"Incremental B Term Commitment" shall mean, for each Incremental
Term Lender, the commitment of such Incremental Term Lender to make
Incremental B Term Loans pursuant to Section 1.01(e) on a given
Incremental B Term Borrowing Date, as such commitment (x) is set forth in
the respective Incremental Term Loan Commitment Agreement delivered
pursuant to Section 1.14(b) and (y) may be terminated pursuant to Section
2.03.
"Incremental B Term Facility" shall mean the Facility evidenced by
the Total Incremental B Term Commitment.
"Incremental B Term Loan" shall have the meaning provided in Section
1.01(e).
"Incremental B Term Borrowing Date" shall mean each date on which
the Borrower incurs a Borrowing of Incremental B Term Loans, each of which
dates shall be the date of the effectiveness of the respective Incremental
Term Loan Commitment Agreement pursuant to which such Incremental B Term
Loans are to be made; PROVIDED that no such date shall occur after the
Incremental Term Commitment Termination Date.
"Incremental C Term Commitment" shall mean, for each Incremental
Term Lender, the commitment of such Incremental Term Lender to make
Incremental C Term Loans pursuant to Section 1.01(f) on a given
Incremental C Term Borrowing Date, as such commitment (x) is set forth in
the respective Incremental Term Loan Commitment Agreement delivered
pursuant to Section 1.14(b) and (y) may be terminated pursuant to Section
2.03.
"Incremental C Term Facility" shall mean the Facility evidenced by
the Total Incremental C Term Commitment.
"Incremental C Term Loan" shall have the meaning provided in Section
1.01(f).
"Incremental C Term Borrowing Date" shall mean each date on which
the Borrower incurs a Borrowing of Incremental C Term Loans, each of which
dates shall be the date of effectiveness of the respective Incremental
Term Loan Commitment Agreement pursuant to which such Incremental C Term
Loans are to be made; PROVIDED that no such date shall occur after the
Incremental Term Commitment Termination Date.
"Incremental Term Borrowing Date" shall mean and include any
Incremental B Term Borrowing Date and any Incremental C Term Borrowing
Date.
"Incremental Term Loan" shall mean each Incremental B Term Loan and
each Incremental C Term Loan.
-15-
"Incremental Term Commitment" shall mean, for each Incremental Term
Lender, such Incremental Term Lender's Incremental B Term Commitment or
Incremental C Term Commitment, as the case may be.
"Incremental Term Loan Commitment Agreement" shall mean an
Incremental Term Loan Commitment Agreement substantially in the form of
Exhibit L (appropriately completed).
"Incremental Term Commitment Termination Date" shall mean December
31, 2001.
"Incremental Term Lender" shall have the meaning provided in Section
1.14(b).
"Initial B Term Loan" shall have the meaning provided in Section
1.01(a).
"Initial B Term Commitment" shall mean, with respect to each Lender,
the amount set forth opposite such Lender's name on Annex I hereto
directly below the column entitled "Initial B Term Commitment", as the
same may be (x) reduced or terminated pursuant to Sections 2.02, 3.03
and/or 8 or (y) adjusted from time to time as a result of assignments to
or from such Lender pursuant to Sections 1.13 and/or 11.04(b) plus the
amount, if any, of an Initial B Term Commitment of such Lender committed
to pursuant to an Initial B Term Commitment Renewal.
"Initial B Term Commitment Renewal" shall mean the providing of
additional Initial B Term Commitments from time to time after any
mandatory repayment of Initial B Term Loans and/or mandatory reduction of
Initial B Term Commitments pursuant to Section 2.03(b)(iii) or (iv) (each,
a "B Reduction Event") in an aggregate amount (the "Additional B
Commitment Amount"), selected by the Borrower, not to exceed the principal
amount of the Initial B Term Loans so repaid and the Initial B Term
Commitments so reduced, with any Initial B Term Commitment Renewal to be
effected by: (i) the Borrower requesting in writing some or all of the
Lenders and/or other Eligible Transferees acceptable to the Agents and the
Borrower to provide an additional Initial B Term Commitment, which request
shall be given within 90 days following the B Reduction Event but in any
event prior to the date occurring 255 days after the Closing Date and (ii)
each such Lender or Eligible Transferee who desires to do so, providing a
written notice to the Borrower and the Administrative Agent in response to
such request setting forth the additional Initial B Term Commitment it
will offer, with the amount so specified (or such lesser amount as is
allocated to such Lender by the Agents if the aggregate offered additional
Initial B Term Commitments exceed the Additional B Commitment Amount) to
be such Person's additional Initial B Term Commitment, it being agreed
that any such additional Initial B Term Commitments shall terminate on the
date occurring 270 days after the Closing Date (after giving effect to the
making of Initial B Term Loans, if any, on such date) and each such Person
with an additional Initial B Term Commitment shall be a Lender.
-16-
"Initial B Term Facility" shall mean the Facility evidenced by the
Total Initial B Term Commitment.
"Initial B Termination Date" shall mean the date occurring 270 days
after the Closing Date.
"Initial C Term Commitment" shall mean, for each Lender, the amount
set forth opposite such Lender's name on Annex I hereto directly below the
column entitled "Initial C Term Commitment," as the same may be terminated
pursuant to Section 2.03.
"Initial C Term Facility" shall mean the Facility evidenced by the
Total Initial C Term Commitment and the Co-Bank Commitment.
"Initial C Term Loan-Floating Rate" shall have the meaning provided
in Section 1.01(b).
"Margin Reduction Discount" shall mean zero, PROVIDED that (I) at
any time prior to the occurrence of the first Incremental Term Borrowing
Date to occur after the Sixth Amendment Effective Date, the Margin
Reduction Discount applicable to B Term Loans and C Term Loans-Floating
Rate shall be increased to .25% per annum, when, and for so long as, the
Leverage Ratio as at the end of the then Relevant Fiscal Quarter is less
than 5.0 to 1 and (II) the Margin Reduction Discount applicable to RF
Loans and AF Loans (and only such Loans) shall be increased to .25%, .50%
or .75% per annum, as specified in clauses (i), (ii) and (iii) below, as
the case may be, when, and for so long as, the ratio set forth in such
clause has been satisfied as at the end of the then Relevant Fiscal
Quarter:
(i) the Margin Reduction Discount for RF Loans and AF Loans shall be
.25% per annum in the event that as of the end of the Relevant Fiscal
Quarter the Leverage Ratio is less than 5.50 to 1 but equal to or greater
than 5.00 to 1;
(ii) the Margin Reduction Discount for RF Loans and AF Loans shall
be .50% per annum in the event that as of the end of the Relevant Fiscal
Quarter the Leverage Ratio is equal to or greater than 4.50 to 1 but less
than 5.00 to 1; and
(iii) the Margin Reduction Discount for RF Loans and AF Loans shall
be .75% per annum in the event that as of the end of the Relevant Fiscal
Quarter the Leverage Ratio is less than 4.50 to 1.
The Leverage Ratio shall be determined as of the last day of the
Relevant Fiscal Quarter, by delivery of an officer's certificate of the
Borrower to the Lenders pursuant to Section 6.01(e), which certificate
shall set forth the calculation of the Leverage Ratio. The Margin
Reduction Discount so determined shall apply, except as set forth below,
from the date on which such officer's certificate is delivered to the
Administrative Agent to the earlier of (x) the date on which the next
certificate is delivered to the Administrative Agent pursuant to Section
6.01(e) and (y) the 45th day following the end
-17-
of the fiscal quarter in which such first certificate was delivered to the
Administrative Agent (or the 90th day if such fiscal quarter was the last
fiscal quarter of a fiscal year). Notwithstanding anything to the contrary
contained above, the Margin Reduction Discount shall be zero (x) if no
officer's certificate has been delivered to the Lenders pursuant to
Section 6.01(e) which sets forth the Leverage Ratio as of the last day of
the Relevant Fiscal Quarter or the financial statements upon which any
such calculations are based have not been delivered, until such a
certificate and/or financial statements are delivered, (y) at all times
when there shall exist a Default under Section 8.01 or an Event of Default
and (z) in the case of B Term Loans and C Term Loans-Floating Rate only,
at all times on and after the first Incremental Term Borrowing Date to
occur after the Sixth Amendment Effective Date. It is understood and
agreed that the Margin Reduction Discount as provided above shall in no
event be cumulative and, in the case of the Margin Reduction Discount
applicable to RF Loans and AF Loans, only the Margin Reduction Discount
available pursuant to clause (i), (ii) or (iii) of clause (II) of the
proviso in the first sentence of this definition above, if any, contained
in this definition shall be applicable.
"Sixth Amendment" shall mean the Sixth Amendment to this Agreement,
dated as of March 30, 2001.
"Sixth Amendment Effective Date" shall have the meaning provided in
the Sixth Amendment.
"Scheduled Reduction" shall have the meaning provided in the Credit
Agreement immediately prior to the Sixth Amendment Effective Date.
"Specified Prepayment Premium Percentage" shall mean, at any time,
the highest "Voluntary Prepayment Premium Percentage" specified in any
Incremental Term Loan Commitment Agreement executed and delivered on or
prior to such time.
"Total Incremental B Term Commitment" shall mean the sum of the
Incremental B Term Commitments of each of the Lenders.
"Total Incremental C Term Commitment" shall mean the sum of the
Incremental C Term Commitments of each of the Lenders.
"Total Initial B Term Commitment" shall mean the sum of the Initial
B Term Commitments of each of the Lenders.
"Total Initial C Term Commitment" shall mean the sum of the Initial
C Term Commitments of each of the Lenders.
26. Section 11.04(b) of the Credit Agreement is hereby amended by
deleting the text ", with the consent of the Administrative Agent and the
Borrower (which consents shall not be unreasonably withheld)" appearing the last
sentence of said Section and inserting the text ", with prior written notice to
the Administrative Agent," in lieu thereof.
-18-
27. The Credit Agreement is hereby further amended by adding new
Exhibit L thereto in the form of Exhibit L attached hereto.
II. AMENDMENTS TO PLEDGE AGREEMENT.
1. The Pledge Agreement is hereby amended by deleting the
third recital appearing therein in its entirety.
2. Section 1 of the Pledge Agreement is hereby amended by (i)
deleting the text "such Pledgor" in each instance where it appears in clause (i)
of said Section and inserting the text "the Borrower" in lieu thereof, (ii)
deleting the text "such Pledgor" in the first place such text appears in clause
(ii) of said Section and inserting the text "the Borrower" in lieu thereof and
(iii) deleting the text ", including all obligations, if any, of such Pledgor
under its Guaranty (if any) in respect of Secured Interest Rates Agreements"
appearing in clause (ii) of said Section.
3. The Pledge Agreement is hereby amended by the following new
Section 26 immediately following Section 25 thereof:
"26. At any time a payment is made by any Pledgor in respect of
the Obligations from the proceeds of any sale or other disposition of
Collateral owned by such Pledgor (each, a "RELEVANT PAYMENT"), the right
of contribution of each Pledgor hereunder against each other such Pledgor
shall be determined as provided in the immediately following sentence,
with the right of contribution of each Pledgor to be revised and restated
as of each date on which a Relevant Payment is made. At any time that a
Relevant Payment is made by a Pledgor that results in the aggregate
payments made by such Pledgor hereunder in respect of the Obligations to
and including the date of the Relevant Payment exceeding such Pledgor's
Contribution Percentage (as defined below) of the aggregate payments made
by all Pledgors hereunder in respect of the Obligations from the proceeds
of any sale or other disposition of Collateral owned by the Pledgors to
and including the date of the Relevant Payment (such excess, the
"AGGREGATE EXCESS AMOUNT"), each such Pledgor shall have a right of
contribution against each other Pledgor who has made payments hereunder in
respect of the Obligations from the proceeds of any sale or other
disposition of Collateral owned by such Pledgor to and including the date
of the Relevant Payment in an aggregate amount less than such other
Pledgor's Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Pledgors hereunder in
respect of the Obligations from the proceeds of any sale or other
disposition of Collateral owned by the Pledgors (the aggregate amount of
such deficit, the "AGGREGATE DEFICIT AMOUNT") in an amount equal to (x) a
fraction the numerator of which is the Aggregate Excess Amount of such
Pledgor and the denominator of which is the Aggregate Excess Amount of all
Pledgors multiplied by (y) the Aggregate Deficit Amount of such other
Pledgor. A Pledgor's right of contribution pursuant to the preceding
sentences shall arise at the time of each computation, subject to
adjustment to the time of any subsequent computation; PROVIDED, that no
Pledgor may take any action to enforce such right until the Obligations
have been paid in full and the Total Commitment has been terminated, it
being expressly recognized and agreed by all parties hereto that
-19-
any Pledgor's right of contribution arising pursuant to this Agreement
against any other Pledgor shall be expressly junior and subordinate to
such other Pledgor's obligations and liabilities in respect of the
Obligations and any other obligations owing under this Agreement. As used
in this Section 26: (i) each Pledgor's "CONTRIBUTION PERCENTAGE" shall
mean the percentage obtained by dividing (x) the Adjusted Net Worth (as
defined below) of such Pledgor by (y) the aggregate Adjusted Net Worth of
all Pledgors; (ii) the "ADJUSTED NET WORTH" of each Pledgor shall mean the
greater of (x) the Net Worth (as defined below) of such Pledgor and (y)
zero; and (iii) the "NET WORTH" of each Pledgor shall mean the amount by
which the fair salable value of such Pledgor's assets on the date of any
Relevant Payment exceeds its existing debts and other liabilities
(including contingent liabilities, but without giving effect to any
obligations arising under this Agreement) on such date. All parties hereto
recognize and agree that, except for any right of contribution arising
pursuant to this Section 26, each Pledgor who makes any payment in respect
of the Obligations shall have no right of contribution or subrogation
against any other Pledgor in respect of such payment. Each of the Pledgors
recognizes and acknowledges that the rights to contribution arising
hereunder shall constitute an asset in favor of the party entitled to such
contribution. In this connection, each Pledgor has the right to waive its
contribution right against any Pledgor to the extent that after giving
effect to such waiver such Pledgor would remain solvent, in the
determination of the Required Lenders.".
III. MISCELLANEOUS PROVISIONS.
1. In order to induce the Lenders to enter into this Amendment, the
Borrower hereby represents and warrants that:
(a) no Default or Event of Default exists as of the Sixth Amendment
Effective Date, both before and after giving effect to this Amendment; and
(b) all of the representations and warranties contained in the
Credit Agreement or the other Credit Documents are true and correct in all
material respects on the Sixth Amendment Effective Date, both before and
after giving effect to this Amendment, with the same effect as though such
representations and warranties had been made on and as of the Sixth
Amendment Effective Date (it being understood that any representation or
warranty made as of a specific date shall be true and correct in all
material respects as of such specific date).
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
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
-20-
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. This Amendment shall become effective on the date (the "Sixth
Amendment Effective Date") when each of the following conditions shall have been
satisfied:
(i) the Administrative Agent shall have received from each Credit
Party certified copies of resolutions of the Board of Directors of such
Credit Party with respect to the matters set forth in this Amendment and
such resolutions shall be satisfactory to the Administrative Agent;
(ii) the Administrative Agent shall have received from Paul,
Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel to the Credit
Parties, an opinion addressed to the Agents, the Collateral Agent and each
of the Lenders and dated the Sixth Amendment Effective Date in form and
substance satisfactory to the Administrative Agent, and covering such
matters incident to this Amendment as the Administrative Agent may
reasonably request (including an opinion as to no conflict with all
Permitted Subordinated Debt and the documentation governing the same);
(iii) the Borrower shall have paid to each Lender which has executed
and delivered a counterpart of this Amendment on or prior to 5:00 P.M.
(New York time) on Thursday, March 29, 2001, an amendment fee equal to the
sum of (I) 0.50% of the sum of (x) the Revolving Commitment of such Lender
as in effect on such date PLUS (y) the Acquisition Commitment of such
Lender as in effect on such date PLUS (II) 0.25% of the aggregate
principal amount of the Term Loans made by such Lender and outstanding on
such date (immediately prior to the occurrence of the Sixth Amendment
Effective Date);
(iv) the Borrower shall have paid to the Administrative Agent such
fees as may have been agreed to in writing among such parties;
(v) the Borrower, each Subsidiary Guarantor, the Required AF/RF
Lenders, the Required AF Lenders, the Required RF Lenders, the Required TF
Lenders, the Required B TF Lenders and the Required C TF Lenders shall
have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent at its Notice Office.
6. By executing and delivering a copy hereof, each Credit Party
hereby (x) agrees that all Loans (including, without limitation, upon the
incurrence thereof, the Incremental B Term Loans and Incremental C Term Loans)
shall be fully guaranteed pursuant to the Subsidiary Guaranty in accordance with
the terms and provisions thereof and shall be fully secured pursuant to the
Pledge Agreement and (y) reaffirms all of its obligations and liabilities under
the various Credit Documents to which it is a party.
-21-
7. From and after the Sixth Amendment Effective Date, all references
in the Credit Agreement and each of the other Credit Documents to the Credit
Agreement and the Pledge Agreement shall be deemed to be references to the
Credit Agreement or the Pledge Agreement, as the case may be, as modified
hereby.
* * *
-22-
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
FAIRPOINT COMMUNICATIONS, INC. (f/k/a
MJD Communications, Inc.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President of Finance
BANKERS TRUST COMPANY, Individually
and as Administrative Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
BANK OF AMERICA, N.A., Individually
and as Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Principal
FIRST UNION NATIONAL BANK,
Individually and as Documentation
Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Wessmock
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Wessmock
Title: Sr. Vice President
COBANK, ACB
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ PRIME
INCOME TRUST
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Investment Officer
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
CENTURA BANK
By:
-------------------------------------
Name:
Title:
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By:
-------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By:
-------------------------------------
Name:
Title:
DELANO COMPANY
By: Pacific Investment Management
Company as its Investment Advisor
By:
-------------------------------------
Name:
Title:
FORTIS CAPITAL CORP. (f/k/a
MEESPIERSON CAPITAL CORP.)
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT AND RESEARCH,
as Investment Manger
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
OXFORD STRATEGIC INCOME FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ Management as
Investment Advisor
By:
-------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
FIRSTAR BANK, N.A. (f/k/a MERCANTILE
BANK NATIONAL ASSOCIATION)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇▇▇ ▇▇▇▇▇ Management as
Investment Advisor
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Each of the undersigned, each being a Subsidiary Guarantor under,
and as defined in, the Credit Agreement referenced in the foregoing Sixth
Amendment, hereby consents to the entering into of the Sixth Amendment and
agrees to the provisions thereof (including, without limitation, Sections 6 and
7 of Part II thereof).
MJD HOLDINGS CORP.,
as a Subsidiary Guarantor and a Pledgor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President of Finance
MJD VENTURES, INC.,
as a Subsidiary Guarantor and a
Pledgor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President of Finance
MJD SERVICES CORP.
as a Subsidiary Guarantor and a
Pledgor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President of Finance
ST ENTERPRISES LTD.
as a Subsidiary Guarantor and a
Pledgor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President of Finance
IBM CREDIT CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager of Credit, Commercial
& Special Financing
EXHIBIT L
FORM OF INCREMENTAL TERM LOAN COMMITMENT AGREEMENT
[Names(s) of Lenders(s)]
[Date]
FairPoint Communications, Inc.
[Insert Address]
re INCREMENTAL TERM LOAN COMMITMENT
Ladies and Gentlemen:
Reference is hereby made to the Credit Agreement, dated as of March
30, 1998 (as amended, modified or supplemented from time to time, the "Credit
Agreement"), among FairPoint Communications, Inc. (f/k/a MJD Communications,
Inc.) (the "Borrower" or "you"), the lenders from time to time party thereto
(the "Lenders") and Bankers Trust Company, as Administrative Agent (the
"Administrative Agent"). Unless otherwise defined herein, capitalized terms used
herein shall have the respective meanings set forth in the Credit Agreement.
Each Lender (each, an "Incremental Term Lender") party to this
letter agreement (this "Agreement") hereby severally agrees that, subject to the
terms and conditions set forth herein, in Annex I hereto and in the Credit
Agreement, it shall provide the Incremental B Term Commitment and/or the
Incremental C Term Commitment set forth opposite its name on Annex I attached
hereto (for each such Incremental Term Lender, its "Incremental Term
Commitment"). Each Incremental Term Commitment provided pursuant to this
Agreement shall be subject to the terms and conditions set forth in the Credit
Agreement, including Section 1.14 thereof.
Each Incremental Term Lender and the Borrower acknowledge and agree
that the Incremental Term Commitments provided pursuant to this Agreement shall
constitute either Incremental B Term Commitments or Incremental C Term
Commitments (as specified in Annex I attached hereto) under, and as defined in,
the Credit Agreement. Each Incremental Term Lender and the Borrower further
agree that (i) the maturity date, interest rate provisions (other than the
interest rate margins which may be as specified on Annex I hereto) and scheduled
amortizations applicable to each Incremental Term Loan to be made available
pursuant to its relevant Incremental Term Commitment provided pursuant to this
Agreement are set forth in the relevant provisions of the Credit Agreement, (ii)
the up-front fees payable in respect of the Incremental Term Commitment(s)
provided by it pursuant to this Agreement shall be as set forth in Annex I to
this Agreement and (iii) the "Applicable Base Rate Margin", the "Applicable
Eurodollar Margin" and the "Voluntary Prepayment Premium Percentage" applicable
to the
Annex L
Page 2
respective Incremental Term Loans to be made available pursuant to its
Incremental Term Commitments provided pursuant to this Agreement shall be as set
forth in Annex I to this Agreement (subject, however, to the limitations and
requirements of Section 1.14 of the Credit Agreement).
Each Incremental Term Lender party to this Agreement (i) confirms
that it has received a copy of the Credit Agreement and the other Credit
Documents, together with copies of the financial statements referred to therein
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Agreement and, to the
extent applicable, to become a Lender under the Credit Agreement, (ii) agrees
that it will, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement, (iii) appoints and authorizes the
Administrative Agent and the Collateral Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement and the other
Credit Documents as are delegated to the Administrative Agent and the Collateral
Agent, as the case may be, by the terms thereof, together with such powers as
are reasonably incidental thereto, (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender, and (v) in the
case of each lending institution organized under the laws of a jurisdiction
outside the United States, attaches the applicable forms described in Section
3.04(b) certifying as to its entitlement to a complete exemption from United
States withholding taxes with respect to all payments to be made under the
Credit Agreement and the other Credit Documents. Upon the execution of a
counterpart of this Agreement by such Incremental Term Lenders, the
Administrative Agent and the Borrower, the delivery to the Administrative Agent
of a fully executed copy (including by way of counterparts and by facsimile)
hereof and the payment of any fees (including, without limitation, the upfront
fees payable pursuant to the immediately preceding paragraph and the
administrative fee payable to the Administrative Agent pursuant to Section
1.14(b)(ii) of the Credit Agreement) required in connection herewith, each
Incremental Term Lender party hereto (i) shall be obligated to make the
Incremental Term Loans provided to be made by it as provided in this Agreement
on the terms, and subject to the conditions, set forth in the Credit Agreement,
and, to the extent applicable, shall become a Lender pursuant to the Credit
Agreement and (ii) to the extent provided in this Agreement, shall have the
rights and obligations of a Lender thereunder and under the other Credit
Documents.
The Borrower acknowledges and agrees that all Obligations with
respect to the Incremental Term Loans to be made available to the Borrower shall
be fully secured pursuant to the Pledge Agreement in accordance with the terms
and provisions thereof. Each Subsidiary Guarantor acknowledges and agrees that
all Obligations with respect to the Incremental Term Loans shall be fully
guaranteed pursuant to the Subsidiary Guaranty in accordance with the terms and
provisions thereof and shall be fully secured pursuant to the Pledge Agreement
in accordance with the terms and provision thereof.
Annex L
Page 3
This Agreement shall become effective as of the date (the "Agreement
Effective Date") when (i) the Borrower, each Subsidiary Guarantor, each
Incremental Term Lender and the Administrative Agent shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile transmission) the same to the
Administrative Agent at the Notice Office, (ii) each condition set forth in
Section 1.14 of the Credit Agreement shall have been satisfied and (iii) the
Borrower shall have paid to each Incremental Term Lender the upfront fee set
forth on Annex I.
From and after the Agreement Effective Date, all references in the
Credit Agreement and the other Credit Documents to the Credit Agreement shall be
deemed to be references to the Credit Agreement as supplemented hereby.
You may accept this Agreement by signing the enclosed copies in the
space provided below, and returning one copy of same to us before the close of
business on __________ __, _____. If you do not so accept this Agreement by such
time, our Incremental Term Commitments set forth in this Agreement shall be
deemed canceled.
After the execution and delivery to the Administrative Agent of a
fully executed copy of this Agreement (including by way of counterparts and by
fax) by the parties hereto, this Agreement may only be changed, modified or
varied by written instrument in accordance with the requirements for the
modification of Credit Documents pursuant to Section 11.12 of the Credit
Agreement.
Annex L
Page 4
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
Very truly yours,
[NAMES OF INCREMENTAL TERM LENDERS]
By
----------------------------------------
Name:
Title:
Agreed and Accepted
this ___ day of __________, ____:
FAIRPOINT COMMUNICATIONS, INC.
(f/k/a MJD Communications, Inc.)
By:
------------------------------
Name:
Title:
[NAMES OF SUBSIDIARY GUARANTORS]
By:
------------------------------
Name:
Title:
Agreed and Accepted by:
BANKERS TRUST COMPANY,
as Administrative Agent
By:
------------------------------
Name:
Title:
ANNEX I
to
EXHIBIT L
TERMS AND CONDITIONS FOR
INCREMENETAL TERM LOAN COMMITMENT AGREEMENT
1. Agreement Effective Date:
__________, ____ (the "Agreement Effective Date")
2. Commitment Amounts (as of the Agreement Effective Date):
INCREMENTAL TERM LENDER INCREMENTAL B TERM COMMITMENT INCREMENTAL C TERM
COMMITMENT
---------------- ------------------ ------------------
Total $ $
------------------ ------------------
3. UP-FRONT FEE(1):
4. "APPLICABLE BASE RATE MARGIN":
------------------------------------------.
5. "APPLICABLE EURODOLLAR MARGIN":
-----------------------------------------.
6. "VOLUNTARY PREPAYMENT PREMIUM PERCENTAGE":
------------------------------.
7. ADDITIONAL CONDITIONS PRECEDENT FOR PURPOSES OF SECTION 1.14 OF THE
CREDIT AGREEMENT.(2)
--------
(1) Insert up-front fees as may be agreed to by the Borrower, the Administrative
Agent and Incremental Term Lenders.
(2) Insert any conditions precedent, for purposes of Sections 1.14 of the Credit
Agreement, to the making of any Incremental Term Loans that are required by
the Incremental Term Lenders or the Administrative Agent in connection with
the provision of Incremental Term Commitments pursuant to this Agreement.
Any officer's certificate required by Section 1.14 shall be attached hereto.
ANNEX I
PAGE 2
8. NOTICE AND INFORMATION:
BANKERS TRUST COMPANY
One Bankers Trust Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Telephone:
Telecopier:
[NAMES OF INCREMENTAL TERM LENDERS](3)
Address:
Attention:
Telephone:
Telecopier:
------------------
(3) Provide notice information for each Incremental Term Lender to be party to
this Agreement.