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Exhibit 10.6
FIFTH AMENDMENT AND CONSENT
FIFTH AMENDMENT AND CONSENT (this "Amendment"), dated as of October 6,
2000, 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"), and
BANKERS TRUST COMPANY, as Administrative Agent (the "Administrative Agent" and,
together with the Documentation Agent and the Syndication Agent, collectively,
the "Agents"). 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 :
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WHEREAS, the Borrower, the Lenders, 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 has advised the Lenders that it intends to
effect an equity financing (the "Sponsor Equity Financing") pursuant to
which it intends to raise up to approximately $100.0 million, of which
$50.0 million will be raised from the sale of its equity securities to THL
and/or the THL Affiliates and $50.0 million will be raised from the sale of
its equity securities to Kelso and/or the Kelso Affiliates;
WHEREAS, the Borrower has also advised the Lenders that it desires to
use the proceeds from the Sponsor Equity Financing to fund further expansion
by its subsidiary, FairPoint Communications Solutions Corp. ("FairPoint
Solutions");
WHEREAS, the Borrower has requested that the Credit Agreement be
amended to permit the foregoing transactions and to modify certain other
provisions thereof, in each case as described herein; and
WHEREAS, subject to and on the terms and conditions set forth herein,
the parties hereto wish to amend the Credit Agreement and the Lenders wish
to grant a certain consent to the Credit Agreement, in each case as
provided below;
NOW, THEREFORE, it is agreed:
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1. Section 1.02 of the Credit Agreement is hereby amended by deleting
the text "eight" appearing in the last sentence of said Section and
inserting the text "twelve" in lieu thereof.
2. Section 4 of the Credit Agreement is hereby amended by inserting
the following new Section 4.05 immediately after Section 4.04 appearing
therein:
"4.05 CONDITIONS PRECEDENT TO CERTAIN BORROWINGS. The obligation of
each Lender to make RF Loans and AF Loans is subject, at the time of the
making of each such Loan, to (i) the receipt by the Administrative Agent
of a certificate (each, a "Permitted Subordinated Debt Compliance
Certificate") from a financial officer of the Borrower in form and
substance reasonably satisfactory to the Administrative Agent (which
certificate may be incorporated into the Notice of Borrowing given in
respect of the Borrowing of such Loans), which certificate shall (I)
contain a representation and warranty that (x) the Borrowing of such
Loans does not violate the terms of any Permitted Subordinated Debt and
(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 (II) (x) certify that after giving effect
to the incurrence of such Loans, the aggregate principal amount of all
Loans outstanding at such time does not exceed $375.0 million (the "Senior
Debt Threshold Certification") or (y) if the Senior Debt Threshold
Certification cannot be (or is not) made, certify that the Borrower is in
compliance with a Leverage Ratio (as defined in the documentation
governing the Permitted Subordinated Debt) of not greater than 7.0:1.0
(after giving PRO FORMA effect to the incurrence of such Loans and as
determined in accordance with the requirements of the documentation
governing the Permitted Subordinated Debt) and be accompanied by financial
calculations in form and substance reasonably satisfactory to the
Administrative Agent establishing compliance with such Leverage Ratio,
(ii) in event the Senior Debt Threshold Certification cannot be (or is
not) made at the time of the making of such Loans, the receipt by each
trustee for the Permitted Subordinated Debt of a Permitted Subordinated
Debt Compliance Certificate and (iii) compliance with the requirements of
the documentation governing the Permitted Subordinated Debt and all
applicable covenants contained therein."
3. The last paragraph appearing in Section 4 of the Credit Agreement is
hereby amended by deleting the text "and/or 4.04 (in the case of AF Loans)" and
inserting the text ", 4.04 (in the case of AF Loans) and/or 4.05 (in the case
of RF Loans and AF Loans)" in lieu thereof and (ii) deleting the text "and
4.04" appearing in the second sentence of said paragraph and inserting the text
", 4.04 and 4.05" in lieu thereof.
4. Exhibit A of the Credit Agreement is hereby amended by (i) deleting the
word "and" occurring at the end clause (A) of the last sentence in said Exhibit
and inserting the text "[and]" in lieu thereof, (ii) deleting the period at the
end of clause (B) of the last sentence in said Exhibit and inserting the text
"[.] [;]" in lieu thereof and (iii) inserting the following new clauses (C),
(D) and (E) immediately after clause (B) appearing in the last sentence of said
Exhibit:
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"[(C) the Proposed Borrowing (both before and after giving
effect to the application of proceeds thereof) will not conflict or
be inconsistent with or 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;
(D) after giving effect to the Proposed Borrowing, all Loans and
all other Obligations under the Credit Documents (including, without
limitation, pursuant to the Subsidiary Guaranty) are within the
definitions of "Senior Debt" under the documentation governing the
Permitted Subordinated Debt; and
(E) [after giving effect to the Proposed Borrowing, the
aggregate principal amount of all Loans outstanding under the Credit
Agreement does not exceed $375.0 million] [attached hereto as Annex I
is a true and correct copy of financial calculations establishing
that, after giving effect to the Proposed Borrowing, the Borrower is
in compliance with a Leverage Ratio (as defined in the documentation
governing the Permitted Subordinated Debt) of not greater than
7.0:1.0 (after giving pro forma effect to the incurrence of such
Proposed Borrowing and as determined in accordance with the
requirements of the documentation governing the Permitted
Subordinated Debt)]*.
* Bracketed clauses (C), (D) and (E) to be included for any
Proposed Borrowing to be made at any time any Permitted
Subordinated Debt remains outstanding. Borrower to include
relevant bracketed text in clause (E) for any given
Proposed Borrowing.]."
5. Notwithstanding anything to the contrary contained in Section
7.03 of the Credit Agreement, the Lenders hereby agree that the Lien granted by
Peoples Mutual Telephone Company, a Wholly-Owned Subsidiary of the Borrower
("Peoples"), in favor of CFW Communications Company on the equity interests of
Virginia PCS Alliance L.C. owned by Peoples and securing certain of its
Permitted Refinancing Indebtedness shall be permitted, so long as the property
subject to such Lien is identical to the property originally subject to the
Lien securing the Indebtedness refinanced with such Permitted Refinancing
Indebtedness pursuant to Section 7.04(l) of the Credit Agreement.
6. 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
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Trigger Date through
December 31, 2001 1.50 to 1.0
March 31, 2002 through
December 31, 2002 1.60 to 1.0
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March 31, 2003 through
December 31, 2003 1.65 to 1.0
March 31, 2004 through
December 31, 2004 1.75 to 1.0
Thereafter 2.00 to 1.0
7. Notwithstanding anything to the contrary contained in Section 7.06
of the Credit Agreement, the Borrower may make additional investments in
FairPoint Solutions (by way of loans, cash capital contributions or the
purchase of common stock of FairPoint Solutions) in an aggregate amount for
all such investments not to exceed $100.0 million (determined, in the case
of equity investments in the form of loans, without regard to any
write-downs or write-offs thereof), so long as (i) no Default or Event of
Default exists at the time of the respective investment or immediately
after giving effect thereto and (ii) the Sponsor Equity Financing shall
have been consummated prior to the making of any such investment.
8. Notwithstanding anything to the contrary contained in Section 7.10
of the Credit Agreement, the Borrower may effect the Sponsor Equity Financing.
9. The Lenders hereby acknowledge that nothing contained in this
Amendment shall be construed to limit the Borrower's ability to use the
proceeds from the Financing (as defined in the Third Amendment and Waiver
referred to below) in the manner provided, and subject to the terms and
conditions contained in, the Third Amendment and Waiver to the Credit
Agreement, dated as of January 12, 2000.
10. In order to induce the Lenders to enter into this Amendment, the
Borrower hereby (i) makes each of the representations, warranties and
agreements contained in Section 5 of the Credit Agreement and (ii)
represents and warrants that there exists no Default or Event of Default,
in each case on the Fifth Amendment Effective Date (as defined below), both
before and after giving effect to this Amendment.
11. 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.
12. 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 instrument. A complete set
of counterparts shall be lodged with the Borrower and the Administrative
Agent.
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13. 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.
14. This Amendment shall become effective on the date (the "Fifth
Amendment Effective Date") when (i) each of the Borrower and the Required
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 White & Case LLP, 1155 Avenue of the
Americas, New York, NY 10036 Attention: Steve Rockoff (facsimile number
212-354-8113) and (ii) the Borrower shall have paid to each Lender which
has executed and delivered a counterpart hereof on or before 5:00 p.m. (New
York time) on October 17, 2000, an amendment fee equal to 0.125% of the sum
of (x) the Revolving Commitment of such Lender as in effect on such date,
(y) the aggregate principal amount of all Term Loans made by such Lender
and outstanding on such date and (z) the Acquisition Commitment of such
Lender as in effect on such date.
15. From and after the Fifth Amendment Effective Date, all references
to the Credit Agreement in the Credit Agreement and the other Credit
Documents shall be deemed to be references to the Credit Agreement as
modified hereby.
* * *
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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/ Timothy W. Henry
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Name: Timothy W. Henry
Title: Vice President of
Finance & Treasurer
BANKERS TRUST COMPANY, Individually
and as Administrative Agent
By: /s/ Anca Trifan
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Name: Anca Trifan
Title: Director
BANK OF AMERICA, N.A., Individually
and as Syndication Agent
By: /s/ Pamela S. Kurtzman
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Name: Pamela S. Kurtzman
Title: Principal
FIRST UNION NATIONAL BANK, Individually
and as Documentation Agent
By: /s/ C. Brand Hosford
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Name: C. Brand Hosford
Title: Vice President
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COBANK, ACB
By: /s/ Rick Freeman
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Name: Rick Freeman
Title: Vice President
MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST
By: /s/ Peter Gewirtz
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Name: Peter Gewirtz
Title: Vice President
HELLER FINANCIAL, INC.
By: /s/ Craig Gallehagh
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Name: Craig Gallehagh
Title: Senior Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ Allen R. Cantrell
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Name: Allen R. Cantrell
Title: Investment Officer
UNION BANK OF CALIFORNIA, N.A.
By: /s/ James C. Opdyke
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Name: James C. Opdyke
Title: Assistant Vice President
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CENTURA BANK
By: /s/ John A. Krusoe
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Name: John A. Krusoe
Title: Corporate Banking Officer
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By: /s/ John P. Sirico, II
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Name: John P. Sirico, II
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Kay H. Campbell
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Name: Kay H. Campbell
Title: Vice President
DELANO COMPANY
By: Pacific Investment Management
Company as its Investment Advisor
By: /s/ Raymond G. Kennedy
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Name: Raymond G. Kennedy
Title: Executive Vice President
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FORTIS CAPITAL CORP. (f/k/a
MEESPIERSON CAPITAL CORP.)
By:
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Name:
Title:
By:
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Name:
Title:
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT AND
RESEARCH, as Investment Manager
By: /s/ Payson F. Swaffield
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Name: Payson F. Swaffield
Title: Vice President
OXFORD STRATEGIC INCOME FUND
By: Eaton Vance Management as
Investment Advisor
By: /s/ Payson F. Swaffield
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Name: Payson F. Swaffield
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Karl Kieffer
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Name: Karl Kieffer
Title: Duly Authorized Signatory
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FIRSTAR BANK, N.A. (f/k/a MERCANTILE
BANK NATIONAL ASSOCIATION)
By: /s/ Douglas P. Best
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Name: Douglas P. Best
Title: Officer
NATIONAL CITY BANK
By: /s/ Elizabeth A. Brosky
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Name: Elizabeth A. Brosky
Title: Assistant Vice President
