Exhibit 10.12


 


SIXTH AMENDMENT


 


This
SIXTH AMENDMENT, dated as of January 29, 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 a provision 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.       Amendment.  Subject to all of the terms and conditions
set forth herein, Section 8.22(a) of the Credit Agreement is hereby
amended by deleting the reference to “February 1, 2010” and substituting “February 15,
2010” therefor.


 


SECTION 2.       Conditions
Precedent.


 


This Agreement shall become effective on the date (the “Effective
Date”) upon receipt by the Administrative Agent of 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 Guarantors.  Each Guarantor hereby
approves and consents to this Agreement and the transactions contemplated by
this Agreement and 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 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.


 


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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 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.


 


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