Exhibit
10.16


 


TENTH AMENDMENT


 


This
TENTH AMENDMENT, dated as of March 9, 2010 (this “Agreement”), to the
Debtor-in-Possession Credit Agreement, dated as of October 27, 2009 (as amended
prior to the date hereof, the “Credit Agreement”), by and among FAIRPOINT
COMMUNICATIONS, INC., a Delaware corporation and a debtor and
debtor-in-possession under Chapter 11 of the Bankruptcy Code (as hereinafter
defined) (“FairPoint”), FAIRPOINT LOGISTICS, INC., a South Dakota
corporation and a debtor and debtor-in-possession under Chapter 11 of the
Bankruptcy Code (“Logistics”; Logistics, together with FairPoint, each a
“Borrower” and, collectively, the “Borrowers”), the lenders from
time to time party thereto (the “Lenders”), and BANK OF AMERICA, N.A.,
as Administrative Agent (in such capacity, together with any successor
administrative agent, the “Administrative Agent”).  Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement.


 


WHEREAS,
the Borrowers have requested that the Administrative Agent and the Required
Lenders amend certain provisions of the Credit Agreement.


 


NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:


 


SECTION 1.       Amendments.


 


1.1   Section 5.08
of the Credit Agreement is hereby amended by adding a new proviso at the end of
the first sentence thereof that reads as follows:


 


“; provided, however,
the foregoing representation and warranty is qualified to give effect to
FairPoint’s disclosure set forth in its Form 8-K filed with the Securities and
Exchange Commission on February 23, 2010.”


 


1.2   Section 5.09(a)
of the Credit Agreement is hereby amended by adding a new proviso at the end of
the last sentence thereof that reads as follows:


 


“; provided, however,
the foregoing representation and warranty in clause (iii) is qualified to give
effect to FairPoint’s disclosure set forth in its Form 8-K filed with the
Securities and Exchange Commission on February 23, 2010.”


 


1.3   Section 6.01
of the Credit Agreement is hereby amended by adding a new clause (k) at the end
thereof which reads as follows:


 


“(k)         Intercompany Debt.  (i) On or prior to May 30, 2010, an
Intercompany Debt Report for the fiscal month ending March 31, 2010 and for the
period commencing on the Petition Date and ending on the last day of the fiscal
month ending March 31, 2010, (ii) on or prior to June 15, 2010, an Intercompany
Debt Report for the fiscal month ending April 30, 2010, (iii) on or prior to June
30, 2010, an Intercompany Debt Report for the fiscal month ending May 31, 2010
and (iv) at the time of the delivery of the financial statements provided for
in


 

















 


Section 6.01(c) for each fiscal month ending on or
after June 30, 2010, an Intercompany Debt Report for such fiscal month.”


 


1.4   Section 6.15
of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:


 


“6.15       Conference Calls.  The Borrowers shall conduct a conference call
on the second Tuesday of every month or as soon as practicable thereafter
(commencing with the first such Tuesday following the Petition Date) with the
Administrative Agent, the Lenders, the Financial Advisor and the “Consenting
Lenders” party to the Plan Support Agreement, for the purpose of discussing,
inter alia, the most recently delivered financial statements, the Debtors’
financial performance, operations, current trends and other material events.”


 


1.5   Section 7.04(b)
of the Credit Agreement is hereby amended by adding the words “or Section 7.06(f)”
at the end thereof immediately before the “;”.


 


1.6   Section 7.06(c)
of the Credit Agreement is hereby amended by adding a new proviso at the end
thereof that reads as follows:


 


“ provided, further, that Logistics may
make Intercompany Loans to FairPoint to the extent (but only to the extent)
that (A)(x) FairPoint has insufficient cash on hand to make a payment required
to be made by FairPoint (and permitted to be made under the Credit Documents
and by the Bankruptcy Court) on behalf of itself or a Subsidiary (each, a “Required
FairPoint Payment”), (y) the amount of such Intercompany Loan made to
FairPoint by Logistics does not exceed the difference between the amount of
such Required FairPoint Payment and the amount of FairPoint’s cash on hand and (z)
the proceeds received by FairPoint from any such Intercompany Loan made by
Logistics are immediately either (i) used by FairPoint to make such Required
FairPoint Payment or (ii) deposited by FairPoint into a disbursement account
from which a check will be issued or a wire transfer will be made to the
applicable payee in respect of such Required FairPoint Payment; provided,
that in the event such check is not issued or such wire transfer is not made to
applicable payee within five Business Days after deposit into such disbursement
account, FairPoint shall immediately repay the amount of such Intercompany Loan
(or unused portion thereof) to Logistics or (B)(x) the proceeds from any such
Intercompany Loans are immediately utilized to pay payroll, expenses or other
amounts on behalf of FairPoint or any of its Legacy Subsidiaries (in each case,
to the extent such payments are (1) permitted to be made under the Credit
Documents and by the Bankruptcy Court and (2) made in the ordinary course of
business and consistent with past practice) (each, a “FairPoint Ordinary
Course Payment”), (y) the amount of any such Intercompany Loan does not
exceed the amount of the FairPoint Ordinary Course Payment to be made with the
proceeds thereof and (z) within fifteen (15) days after delivery of its Intercompany
Debt Report pursuant to Section 6.01(k) for any fiscal period, FairPoint
shall repay to Logistics all Intercompany Loans in respect of FairPoint
Ordinary Course Payments that were made during such fiscal period (or, to the 


 


2

















 


extent FairPoint does not have sufficient cash on hand
repay such Intercompany Loans at such time, FairPoint shall (1) pay such
portion of such Intercompany Loans in an amount equal to the amount of its cash
on hand at such time (excluding cash in any of FairPoint’s disbursement
accounts) and (2) repay the unpaid portion of such Intercompany Loans as it
receives cash (other than from Intercompany Loans made in accordance with
clause (A) of this proviso).”


 


1.7   Section 7.06(f)
of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:


 


“(f)          (i) FairPoint, its Wholly-Owned
Subsidiaries and its 90%-Owned Subsidiaries may incur and hold Intercompany
Payables and Receivables and (ii) Subsidiaries of FairPoint may incur
intercompany payables and receivables resulting from (x) purchases of goods and
services between such Subsidiaries and (y) allocations of payroll and other
expenses between or among such Subsidiaries (clauses (x) and (y) being referred
to herein as “Subsidiary Ordinary Course Payables and Receivables”), to
the extent such Subsidiary Ordinary Course Payables and Receivables are
incurred in the ordinary course of business consistent with past practice.”


 


1.8   Section 7.09(a)
of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:


 


“(a) The Borrowers will
not, and will not permit any of their Subsidiaries to, make any Restricted
Payment, except that (i) any Subsidiary of FairPoint may pay Dividends to any
Subsidiary Guarantor, (ii) FairPoint may repay any Intercompany Loan made to it
by Logistics in accordance with the provisions of Section 7.06(c) and (iii) in
the ordinary course of business and consistent with past practice (and in any
event no more frequently than one time per calendar month) (x) FairPoint and
each Legacy Subsidiary may setoff the amount of Legacy Intercompany Receivables
owing by FairPoint to such Legacy Subsidiary at such time against the amount of
Legacy Intercompany Payables owing by such Legacy Subsidiary to FairPoint at
such time (each such date that such setoff occurs being referred to herein as a
“Legacy Setoff Date”) and (y) to the extent that the amount of Legacy
Intercompany Receivables owing by FairPoint to a Legacy Subsidiary on a Legacy
Setoff Date is greater than the amount of Legacy Intercompany Payables owing by
such Legacy Subsidiary to FairPoint on such Legacy Setoff Date (such net amount
of Legacy Intercompany Receivables owing to such Legacy Subsidiary being
referred to herein as “Net Legacy Intercompany Receivables”), such
Legacy Subsidiary may directly or indirectly, as applicable, dividend or
distribute its Net Legacy Intercompany Receivables to FairPoint on such Legacy
Setoff Date.”


 


1.9   The
definition of “Consolidated Capital Expenditures” appearing in Section 9
of the Credit Agreement is hereby amended by adding the following immediately
prior to the “.” at the end of such definition:


 


3

















 


“and shall further exclude
settlement payments to be made in cash to Capgemini, U.S., LLC permitted to be
made pursuant to Section 5.05(a)(iv) to the extent such payments were
previously recorded on the consolidated balance sheet of FairPoint as a capital
expenditure in prior periods.”


 


1.10 The
definition of “Excluded Intercompany Payable” appearing in Section 9 of
the Credit Agreement is hereby deleted in its entirety.


 


1.11 The
definition of “Intercompany Debt” appearing in Section 9 of the Credit
Agreement is hereby amended by (i) deleting the parenthetical appearing in the
second line thereof in its entirety and (ii) adding “including, without
limitation, Intercompany Payables and Receivables” at the end thereof.


 


1.12 The definition
of “Operating EBITDA” appearing in Section 9 of the Credit Agreement is
hereby amended by amending and restating clause (B) thereof in its entirety to
read as follows:


 


“(B) subtracting therefrom, an amount equal to the
sum, without duplication (but only to the extent included in determining
Consolidated Net Income for such period), of: (i) gains on sales of assets
(excluding sales in the ordinary course of business) and other extraordinary
gains, (ii) all non-cash gains and non-cash income accrued by FairPoint and its
Subsidiaries during such period, and (iii) non-operating interest and dividend
income for such period, all as determined for FairPoint and its Subsidiaries on
a consolidated basis in accordance with GAAP.”


 


1.13 The
definition of “Restricted Payment” appearing in Section 9 of the Credit
Agreement is hereby amended by adding the parenthetical “(whether in cash, by
setoff or otherwise)” immediately after the word “payment” appearing in clause (iii)
thereof.


 


1.14 Section 9
of the Credit Agreement is hereby amended by adding the following terms in the
correct alphabetical order:


 


“Intercompany Debt Report” shall mean, for any fiscal period, a
written report certified by the chief financial officer or controller of
FairPoint setting forth (i) the aggregate amount of Intercompany Loans made by
Logistics to FairPoint during such fiscal period, (ii) the aggregate amount of
Intercompany Loans made by Legacy Subsidiaries to FairPoint during such fiscal
period, (iii) the aggregate amount of Legacy Intercompany Payables created
during such fiscal period, (iv) the aggregate amount of Legacy Intercompany
Receivables created during such fiscal period, (v) the aggregate amount of NNE
Intercompany Payables created during such fiscal period, (vi) the aggregate
amount of NNE Intercompany Receivables created during such fiscal period, (vii)
the aggregate amount of Net Legacy Intercompany Receivables dividended or
distributed, directly or indirectly, by one or more Legacy Subsidiaries to
FairPoint during such fiscal period and (vii) the aggregate amount of
Subsidiary Ordinary Course Payables and Receivables created between Subsidiary
Guarantors, on the one hand, and 


 


4

















 


Subsidiaries that are not Subsidiary Guarantors, on
the other hand, during such fiscal period.


 


“Intercompany Payables
and Receivables” shall mean, collectively, Intercompany Tax Payables,
Legacy Intercompany Payables, Legacy Intercompany Receivables, NNE Intercompany
Payables and NNE Intercompany Receivables.


 


“Intercompany Tax
Payable” shall mean any payable owing by a Subsidiary of FairPoint to its
parent company (if FairPoint or another Subsidiary of FairPoint) arising in
connection with the tax sharing arrangements entered into among FairPoint and its
Subsidiaries, so long as the amount of such payable relates to the taxes
attributable to the operations of such Subsidiary.


 


“Legacy Intercompany
Payable” shall mean an intercompany payable owing by a Legacy Subsidiary to
FairPoint as a result of payments made by FairPoint on behalf of such Legacy
Subsidiary in the ordinary course of business consistent with past practices.


 


“Legacy Intercompany
Receivable” shall mean an intercompany receivable owing by FairPoint to a
Legacy Subsidiary as a result of cash collections made, in the ordinary course
of business consistent with past practices, by FairPoint from such Legacy
Subsidiary’s account debtors on behalf of such Legacy Subsidiary.


 


“Legacy Subsidiaries”
shall mean, collectively, each of FairPoint’s Subsidiaries other than Logistics
and the NNE Subsidiaries.


 


“Net Legacy
Intercompany Receivables” shall have the meaning set forth in Section 7.09(a).


 


“NNE Intercompany
Payable” shall mean an intercompany payable owing by an NNE Subsidiary to
Logistics as a result of payments made by Logistics on behalf of such NNE
Subsidiary in the ordinary course of business consistent with past practices.


 


“NNE Intercompany
Receivable” shall mean an intercompany receivable owing by Logistics to an
NNE Subsidiary as a result of cash collections made, in the ordinary course of
business consistent with past practices by Logistics from such NNE Subsidiary’s
account debtors on behalf of such NNE Subsidiary.


 


“NNE Subsidiaries”
shall mean, collectively, (i) Northern New England Telephone Operations LLC, (ii)
Enhanced Communications of Northern New England Inc., and (iii) Telephone
Operating Company of Vermont LLC.


 


“Subsidiary Ordinary
Course Payables and Receivables” shall have the meaning set forth in Section
7.06(f).


 


5

















 


SECTION 2.       Conditions
Precedent.


 


This Agreement shall become effective on the date (the “Effective
Date”) upon which (i) the Bankruptcy Court has entered the Final Order in
form and substance satisfactory to the Administrative Agent and (ii) the
Administrative Agent has received executed counterparts of this Agreement duly
executed by the Credit Parties, the Administrative Agent and the Required
Lenders.


 


SECTION 3.       Representations
and Warranties.  After giving effect
to this Agreement, the Credit Parties, jointly and severally, reaffirm and
restate the representations and warranties set forth in the Credit Agreement
and in the other Credit Documents (except to the extent such representations
and warranties expressly relate to an earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date) and all such representations and warranties
shall be true and correct on the date hereof with the same force and effect as
if made on such date.  Each of the Credit
Parties represents and warrants (which representations and warranties shall
survive the execution and delivery hereof) to the Administrative Agent and the
Lenders that:


 


(a)           it has the company power and
authority to execute, deliver and carry out the terms and provisions of this
Agreement and the transactions contemplated hereby and has taken or caused to
be taken all necessary action to authorize the execution, delivery and
performance of this Agreement and the transactions contemplated hereby;


 


(b)           no consent of any Person (including,
without limitation, any of its equity holders or creditors), and no action of,
or filing with, any governmental or public body or authority is required to
authorize, or is otherwise required in connection with, the execution, delivery
and performance of this Agreement;


 


(c)           this Agreement has been duly executed
and delivered on its behalf by a duly authorized officer, and constitutes its
legal, valid and binding obligation enforceable in accordance with its terms,
subject to bankruptcy, reorganization, insolvency, moratorium and other similar
laws affecting the enforcement of creditors’ rights generally and the exercise
of judicial discretion in accordance with general principles of equity;


 


(d)           no Default or Event of Default shall
have occurred and be continuing; and


 


(e)           the execution, delivery and
performance of this Agreement will not violate any law, statute or regulation,
or any order or decree of any court or governmental instrumentality, or
conflict with, or result in the breach of, or constitute a default under, any
contractual obligation of any Credit Party or any of its Subsidiaries.


 


SECTION 4.       Affirmation
of Credit Parties.  Each Credit Party
hereby approves and consents to this Agreement and the transactions
contemplated by this Agreement, and affirms its obligations under the Credit
Documents to which it is a party.  Each
Subsidiary Guarantor agrees and affirms that its guarantee of the Obligations
continues to be in full force and effect and is hereby ratified and confirmed
in all respects and shall apply to (i) the Credit 


 


6

















 


Agreement and (ii) all of the other Credit
Documents, as such are amended, restated, supplemented or otherwise modified
from time to time in accordance with their terms.


 


SECTION 5.       Ratification.


 


(a)           Except as herein agreed, the Credit
Agreement and the other Credit Documents remain in full force and effect and
are hereby ratified and affirmed by the Credit Parties.  Each of the Credit Parties hereby (i) confirms
and agrees that the Borrowers are truly and justly indebted to the
Administrative Agent and the Lenders in the aggregate amount of the Obligations
without defense, counterclaim or offset of any kind whatsoever, and (ii) reaffirms
and admits the validity and enforceability of the Credit Agreement and the
other Credit Documents.


 


(b)           This Agreement shall be limited
precisely as written and, except as expressly provided herein, shall not be
deemed (i) to be a consent granted pursuant to, or a waiver, modification or
forbearance of, any term or condition of the Credit Agreement or any of the
instruments or agreements referred to therein or a waiver of any Default or
Event of Default under the Credit Agreement, whether or not known to the
Administrative Agent or any of the Lenders, or (ii) to prejudice any right or
remedy which the Administrative Agent or any of the Lenders may now have or
have in the future against any Person under or in connection with the Credit
Agreement, any of the instruments or agreements referred to therein or any of
the transactions contemplated thereby.


 


SECTION 6.       Waivers; Amendments.  Neither this Agreement, nor any provision
hereof, may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Administrative Agent and the Required
Lenders.


 


SECTION 7.       References.  All references to the “Credit Agreement”, “thereunder”,
“thereof” or words of like import in the Credit Agreement or any other Credit
Document and the other documents and instruments delivered pursuant to or in
connection therewith shall mean and be a reference to the Credit Agreement as
modified hereby and as each may in the future be amended, restated,
supplemented or modified from time to time.


 


SECTION 8.       Counterparts.  This Agreement may be executed by the parties
hereto individually or in combination, in one or more counterparts, each of
which shall be an original and all of which shall constitute one and the same
agreement.  Delivery of an executed
counterpart of a signature page by telecopier shall be effective as delivery of
a manually executed counterpart.


 


SECTION 9.       Successors and Assigns.  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.


 


SECTION 10.     Severability.  If any provision of this Agreement shall be
held invalid or unenforceable in whole or in part in any jurisdiction, such
provision shall, as to such jurisdiction, be ineffective to the extent of such
invalidity or enforceability without in any 


 


7

















 


manner affecting the validity or
enforceability of such provision in any other jurisdiction or the remaining
provisions of this Agreement in any jurisdiction.


 


SECTION 11.     Governing
Law.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK.


 


SECTION 12.     Miscellaneous.


 


(a)   The parties hereto shall, at any time from
time to time following the execution of this Agreement, execute and deliver all
such further instruments and take all such further action as may be reasonably
necessary or appropriate in order to carry out the provisions of this
Agreement.


 


(b)   The Credit Parties acknowledge and agree that
this Agreement constitutes a Credit Document and that the failure of any of the
Credit Parties to comply with the provisions of this Agreement shall constitute
an Event of Default.


 


SECTION 13.     Headings.  Section headings in this Agreement are
included for convenience of reference only and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Agreement.


 


[The remainder of this page left blank intentionally]


 


8

















 


[Signature Pages Omitted]