Exhibit 10.1


 


Execution
Copy


 


AMENDMENT,
WAIVER, RESIGNATION AND


APPOINTMENT
AGREEMENT


 


THIS AMENDMENT,
WAIVER, RESIGNATION AND APPOINTMENT AGREEMENT, dated as of January 21,
2009 (this “Amendment”), is by and among FAIRPOINT COMMUNICATIONS, INC.,
a Delaware corporation (the “Company”),
the Lenders (as defined below) party hereto, LEHMAN
COMMERCIAL PAPER INC. (“LCPI”), a
debtor and debtor in possession under chapter 11 of the Bankruptcy Code (as
defined below), as resigning Administrative Agent, Collateral Agent and
Swingline Lender (as each such role is defined in the 2008 Credit Agreement
defined below and in the other Credit Documents) under the 2008 Credit
Agreement (as defined below), and BANK
OF AMERICA, N.A. (“Bank of America”), as
Syndication Agent and as successor Administrative Agent, Collateral Agent and
Swingline Lender under the Amended Credit Agreement (as defined below).


 


W I T N E S S E T H:


 


WHEREAS, the Company is party to
that certain Credit Agreement, dated as of March 31, 2008 (as amended,
restated or otherwise modified to but excluding the Effective Date (as defined
below) hereof, the “2008 Credit Agreement”),
among the Company, as Borrower, the financial institutions from time to time
party thereto, as lenders (collectively, the “Lenders”
and each a “Lender”), Morgan Stanley
Senior Funding, Inc., and Deutsche Bank Securities Inc., as
co-documentation agents, Bank of America, as Syndication Agent, and LCPI, as
Administrative Agent; capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in the 2008 Credit Agreement;


 


WHEREAS, the Company and certain
subsidiaries thereof, as pledgors, and LCPI, as Collateral Agent, are parties
to a Pledge Agreement, dated as of March 31, 2008 (the “Pledge Agreement”);


 


WHEREAS, Northern New England
Telephone Operations LLC, Telephone Operating Company of Vermont LLC and LCPI,
as custodian thereunder, are parties to a Deposit Agreement, dated as of March 31,
2008 (the “Deposit Agreement”);


 


WHEREAS, on October 5, 2008, LCPI commenced a
voluntary case under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) and on such date,
pursuant to section 362(a) of the Bankruptcy Code, an automatic stay went
into effect that prohibits actions to interfere with, or obtain possession or
control of, LCPI’s property or to collect or recover from LCPI any debts or
claims that arose before such date;


 


WHEREAS, on October 6,
2008, the United States Bankruptcy Court for the Southern District of New York
entered an order (the “Bankruptcy Court Order”)
in the bankruptcy case of LCPI authorizing and empowering LCPI to transfer,
assign or resign from any administrative agent positions in LCPI’s business
judgment in accordance with the provisions of any applicable credit agreements
and in accordance with the Bankruptcy Court Order; and


 

















 


WHEREAS, the Company has notified the Lenders,
pursuant to the notice attached as Exhibit A hereto (the “Notice”), that (a) LCPI desires
to resign as Administrative Agent, Collateral Agent and Swingline Lender under
the Credit Documents and (b) Bank of America has agreed to be appointed as
successor Administrative Agent, Collateral Agent and Swingline Lender under the
Credit Documents, in each case in accordance with (i) Section 10.10 of
the Credit Agreement, (ii) the Resignation, Assignment and Assumption
Agreement, substantially in the form of Exhibit B attached hereto
(the “Agency Assignment and Assumption”),
(iii) the Resignation, Assignment and Assumption Agreement, substantially
in the form of Exhibit C attached hereto (the “Custodian
Assignment and Assumption” and, together with the Agency
Assignment and Assumption, the “Assignment and Assumption”),
and (iv) the terms and conditions hereof;


 


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


 


SECTION 1.01.                                             Conversion
of LCPI RF Loans to LCPI Loans.


 


(a)                                  Section 1.01
of the 2008 Credit Agreement is hereby amended by inserting the following new
clause (g):


 


(g)                                 As
of the Conversion Date, all of the outstanding RF Loans of LCPI in the amount
of $29,695,328.36 shall be converted to a new tranche of Loans payable in full
on the RF Loan Maturity Date (collectively, the “LCPI Loans”) and shall
no longer be RF Loans thereafter.  On the
Conversion Date, all LCPI Loans shall consist of LCPI Loans of the same Type
and may, at the option of the Borrower, be incurred and maintained as, and/or
converted into or continued as, Base Rate Loans or Eurodollar Loans.  Once prepaid or repaid, LCPI Loans may not be
reborrowed.


 


(b)                                 Section 1.05
of the 2008 Credit Agreement is hereby amended by inserting the following new
clause (e-1) between clauses (e) and (f):


 


(e-1)                        Each LCPI
Note, if any, issued to LCPI shall (i) be executed by the Borrower, (ii) be
payable to the order of LCPI and be dated as of the Conversion Date, (iii) be
in a stated principal amount equal to $29,695,328.36, (iv) mature on the
RF Maturity Date, (v) bear interest as provided in the appropriate clause
of Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as
the case may be, evidenced thereby, (vi) be subject to mandatory repayment
as provided in Section 3.03(A)(g) and (v) be entitled to the
benefits of this Agreement and the other Credit Documents.


 


(c)                                  Section 1.09(a)(iv) of
the 2008 Credit Agreement is hereby amended by inserting “LCPI Loans,” between “RF
Loans,” and “B Term Loans”.


 


(d)                                 Clause
(x) of the last full paragraph of Section 1.13 of the 2008 Credit Agreement
is hereby revised to replace the phrase “outstanding Term Loans and/or a
Commitment 


 


2

















 


hereunder” with the phrase “outstanding Term Loans, LCPI Loans and/or a
Commitment hereunder”.


 


(e)                                  Section 3.01
of the 2008 Credit Agreement is hereby amended by inserting the following new
clause (d):


 


(d)                                 The
Borrower promises to repay 100% of the outstanding LCPI Loans on the RF
Maturity Date.


 


(f)                                    Clause
(ii) of Section 3.03A(g) of the 2008 Credit Agreement is hereby
amended by inserting “, LCPI Loans” between the words “Term Loans” and “and RF
Loans”.


 


(g)                                 Section 5.05(c) of
the 2008 Credit Agreement is hereby amended by inserting “and the LCPI Loans”
after the phrase “The proceeds of the RF Loans”.


 


(h)                                 The
proviso in Section 5.05(g) of the 2008 Credit Agreement is hereby
amended by inserting the words “and the LCPI Loans” after the phrase “that
proceeds of RF Loans”.


 


(i)                                     Section 9
of the 2008 Credit Agreement is hereby amended as follows:


 


(i)                                     (A) Clause
(iv) of the definition of “Applicable Base Rate Margin” is hereby
amended by inserting “and the LCPI Loans” after the phrase “in the case of the
RF Loans” and (B) the table at the end of such definition is hereby
deleted in its entirety and replaced by the following (for ease of review,
changes are highlighted in bold/italics):


 


	
  Leverage Ratio

  	
   

  	
  Applicable
  Base Rate Margin for

  RF Loans, LCPI Loans and

  Swingline Loans

  	
   

  
	
  Greater than or equal
  to 3.0:1.0

  	
   

  	
  1.75

  	
  %

  
	
  Less than 3.0:1.0

  	
   

  	
  1.50

  	
  %

  



 


(ii)                                  (A) Clause
(iv) of the definition of “Applicable Eurodollar Margin” is hereby
amended by inserting “and the LCPI Loans” after the phrase “in the case of the
RF Loans” and (B) the table at the end of such definition is hereby
deleted in its entirety and replaced by the following (for ease of review,
changes are highlighted in bold/italics):


 


3

















 


	
  Leverage Ratio

  	
   

  	
  Applicable Eurodollar Margin for

  RF Loans, LCPI Loans and

  Swingline Loans

  	
   

  
	
  Greater than or
  equal to 3.0:1.0

  	
   

  	
  2.75

  	
  %

  
	
  Less than
  3.0:1.0

  	
   

  	
  2.50

  	
  %

  



 


(iii)                               Clause
(a)(ii) of the definition of “Eurodollar Rate” is hereby amended by
inserting “, the LCPI Loans” between the words “Swingline Loans” and “and RF
Loans”.


 


(iv)                              The
definition of “Facility” is hereby amended by inserting “, the LCPI
Facility” after the words “the Delayed-Draw B Term Facility” occurring before
the proviso thereof.


 


(v)                                 Clause
(iii) of the definition of “Maturity Date” is hereby amended by
inserting “and the LCPI Loans” after the phrase “and with respect to the RF
Loans”.


 


(vi)                              Clause
(ii) of the definition of “Minimum Borrowing Amount” is herby
amended by inserting “and the LCPI Loans” after the phrase “in the case of RF
Loans”.


 


(vii)                           The
definition of “Note” is hereby amended by inserting “, each LCPI Note”
between the words “each RF Note” and “and the Swingline Note”.


 


(viii)                        The
parenthetical in clause (A) of the proviso of the definition of “Permitted
Acquisition” is hereby amended by inserting the words “and the LCPI Loans”
after the phrase “including proceeds of RF Loans”.


 


(ix)                                The
definition of “Required Lenders” is hereby amended in accordance with Section 11.11(a)(iii) of
the 2008 Credit Agreement to read as follows (for ease of review, changes are
highlighted in bold/italics):


 


“Required Lenders”
shall mean Non-Defaulting Lenders the sum of whose outstanding A Term Loans, B
Term Loans (and, if prior to the termination thereof, Delayed-Draw B Term
Commitments), LCPI Loans and Revolving
Commitments (or, after the termination thereof, outstanding RF Loans and
Percentages of (x) outstanding Swingline Loans and (y) Letter of
Credit Outstandings) constitute greater than 50% of the sum of (i) all
outstanding A Term Loans and B Term Loans (and if prior to the termination
thereof, Delayed-Draw B Term Commitments) of Non-Defaulting Lenders, (ii) all outstanding LCPI Loans
and (iii) the Total Revolving
Commitment less the Revolving Commitments of all Defaulting Lenders (or after
the termination thereof, the sum of then total outstanding RF Loans of
Non-Defaulting Lenders and the aggregate 


 


4

















 


Percentages of all
Non-Defaulting Lenders of the total outstanding Swingline Loans and Letter of
Credit Outstandings at such time).


 


(x)                                 The
definition of “Super-Majority Lender” is hereby amended in accordance
with Section 11.11(a)(iii) of the 2008 Credit Agreement to read as
follows (for ease of review, changes are highlighted in bold/italics):


 


“Super-Majority
Lenders” shall mean Non-Defaulting Lenders the sum of whose outstanding A
Term Loans, B Term Loans (and, if prior to the termination thereof,
Delayed-Draw B Term Commitments), LCPI Loans
and Revolving Commitments (or, after the termination thereof, outstanding RF
Loans and Percentages of (x) outstanding Swingline Loans and (y) Letter
of Credit Outstandings) constitute at least 75% of the sum of (i) all
outstanding A Term Loans and B Term Loans (and, if prior to the termination
thereof, Delayed-Draw B Term Commitments) of Non-Defaulting Lenders,  (ii) the
LCPI Loans and (iii) the
Total Revolving Commitment less the Revolving Commitments of all Defaulting
Lenders (or after the termination thereof, the sum of then total outstanding RF
Loans of Non-Defaulting Lenders and the aggregate Percentages of all
Non-Defaulting Lenders of the total outstanding Swingline Loans and Letter of
Credit Outstandings at such time).


 


(xi)                              The
following defined terms are hereby inserted in Section 9 of the 2008
Credit Agreement in alphabetical order:


 


“Conversion
Date” shall mean the effective date of the Amendment, Waiver, Resignation
and Appointment Agreement, dated as of January 21, 2009, among the
Borrower, the Required Lenders party thereto, LCPI, as resigning Administrative
Agent, Collateral Agent and Swingline Lender, and Bank of America, N.A., as
successor Administrative Agent, Collateral Agent and Swingline Lender.


 


“LCPI
Facility” shall mean the Facility evidenced by the LCPI Notes.


 


“LCPI
Note” shall mean a note substantially in the form of Exhibit B-5 with
blanks appropriately completed in conformity herewith and otherwise issued in
accordance with Section 1.05(e-1).


 


(j)                                     Section 11.04(b) of
the 2008 Credit Agreement is hereby amended by (i) inserting a reference
to “LCPI Loans” between “Delayed-Draw Term Commitments” and “and/or Revolving
Commitment” in the opening phrase of clause (x) and (ii) inserting a
new subclause (III) as follows:


 


“(III) and in the
case of LCPI Loans, the lesser of (A) $10,000,000 and (B) the greater
of (1) $2,500,000 and (2) 33.33% of the aggregate outstanding LCPI 


 


5

















 


Loans of the assigning
Lender, and, in each case such assigning Lender’s related rights and
obligations hereunder”.


 


(k)                                  The
Exhibits to the 2008 Credit Agreement are hereby amended by inserting Exhibit B-5,
attached hereto, in appropriate alphabetical and numerical order.


 


(l)                                     Clause
(X) of the second proviso of Section 11.11(a) of the 2008 Credit
Agreement is hereby amended in accordance with the parenthetical of Section 11.11(a)(iii) of
the 2008 Credit Agreement by inserting “, LCPI Loans” after the phrase “all
outstanding Term Loans”.


 


(m)                               The
Borrower, LCPI and the undersigned Required Lenders (including the undersigned
Majority Lenders under the Revolving Credit Facility) hereby (i) acknowledge
and agree all the outstanding RF Loans of LCPI shall be converted to LCPI Loans
in accordance with the amendments set forth in clauses (a) through (f) of
this Section 1.01 and shall no longer be RF Loans thereafter, (ii) waive
the requirements of Section 2.03(g) of the 2008 Credit Agreement that
require all partial reductions of the Commitments under a Facility apply
proportionately to reduce the Commitment of each Lender under such Facility
solely with respect to the transactions described in this Section 1.01,
(iii) agree that, effective as of the Effective Date, all the Revolving
Commitments of LCPI, in its capacity as an RF Lender, are terminated and of no
further force and effect and (iv) acknowledge and agree that all the
Revolving Commitments of all the other RF Lenders, other than LCPI, shall
remain in full force and effect.


 


(n)                                 In
consideration of the amendments set forth in this Amendment, effective as of
the Effective Date, LCPI hereby waives (i) its right to pro rata sharing
in any prepayment or payment made with respect to the RF Loans pursuant to Section 11.06(a) of
the Amended Credit Agreement and (ii) any right to prepayment of the LCPI
Loans pursuant to Section 2.02 of the Amended Credit Agreement so long as
any RF Loan remains outstanding under and in accordance with the Amended Credit
Agreement.


 


SECTION 1.02.                                             Replacement of References to LCPI. Other than in Sections 3.03(C), 1.01(h) and
1.05(e-1) of the 2008 Credit Agreement, as amended herein, and in the
definition of “LCPI” contained in Section 9 of the 2008 Credit Agreement,
each instance of the words “Lehman Commercial Paper Inc.” and “LCPI” in the
2008 Credit Agreement are hereby replaced with “Bank of America, N.A.”


 


SECTION 1.03.                                             Amendment
to Section 1.01(e).  Clause (i) of
the second sentence of Section 1.01(e) of the 2008 Credit Agreement
is hereby deleted in its entirety and replaced by the following:


 


(i) the Swingline Lender shall not be obligated
to make or maintain any Swingline Loan and any advance of a Swingline Loan
shall be made in the Swingline Lender’s sole discretion


 


SECTION 1.04.                                             Amendment
to Section 1A.01(c).  Section 1A.01(c) of
the 2008 Credit Agreement is hereby deleted in its entirety and replaced by the
following:


 


6

















 


Notwithstanding the foregoing, in the event that (i) a Lender
Default exists or (ii) any Letter of Credit Issuer determines in good
faith or obtains actual knowledge that any Lender is an Impacted Lender, the
respective Letter of Credit Issuer shall not be required to issue any Letter of
Credit unless arrangements satisfactory to the respective Letter of Credit
Issuer shall have been entered into (“Section 1A.01(c) Arrangements”)
to eliminate such Letter of Credit Issuer’s risk with respect to the participation
in Letters of Credit of such Defaulting Lender or Impacted Lender or Lenders,
which may include requiring the Borrower to cash collateralize each Defaulting
Lender’s or Impacted Lender’s Percentage of the Letter of Credit Outstandings; provided,
that, if at any time a Lender is deemed to no longer be an Impacted Lender in
accordance with Section 11.17(a), any cash collateral provided by
the Borrower to collateralize such Lender’s Percentage of the Letter of Credit
Outstandings shall be released by each applicable Letter of Credit Issuer and
returned to the Borrower.


 


SECTION 1.05.                                             Amendment
to Section 2.01.  (a)  Each
of the undersigned (including all of the RF Lenders) hereby agrees that Section 2.01(a) of
the 2008 Credit Agreement is hereby amended by inserting the following
immediately after the phrase “each RF Lender that is a Non-Defaulting Lender”: “and
that is not an Impacted Lender”.


 


(b)                                 Each
of the undersigned (including all of the RF Lenders) hereby agrees that Section 2.01(c) of
the 2008 Credit Agreement is hereby amended by inserting the following
immediately after the phrase “for the account of each Non-Defaulting Lender”: “that
is not an Impacted Lender”.


 


SECTION 1.06.                                             Amendment
to Section 3.02.  (a)                                     Section 3.02
of the 2008 Credit Agreement is hereby amended by adding the following after
the words “The Borrower shall have the right to prepay Loans” occurring in the
first sentence thereof:  “(other than the
LCPI Loans, to which such prepayments shall not be applied if RF Loans are
outstanding)”.


 


(b)                                 Clause
(i) of Section 3.02 of the 2008 Credit Agreement is hereby amended by
adding “, LCPI Loans” after the words “whether such Loans are A Term Loans
under the A Term Facility, B Term Loans under the B Term Facility, RF Loans”.


 


SECTION 1.07.                                             Amendment
to Section 7.09(a) and Related Provisions.


 


(a)                                  Section 7.09(a) of
the 2008 Credit Agreement is hereby amended by replacing the last proviso
thereto with the following:


 


provided, further, that the
quarterly per share dividend amount payable by the Borrower (after taking into
account any stock split or stock dividend) may not be:  (1) increased above the per share amount
of the dividend paid by the Company on October 17, 2008 except during any
Applicable Leverage Ratio Period; or (2) increased from the amount of the
dividend declared for the preceding quarter except that, if at any time the
Borrower declares a quarterly dividend that is less than the per share amount
of the dividend paid by the Company on October 17, 


 


7

















 


2008, it may at any subsequent time increase the quarterly dividend to
any amount up to and including the per share amount of the dividend paid by the
Company on October 17, 2008, so long as after giving effect thereto the
Borrower is in compliance with Section 7.09(a)(iii).


 


(b)                                 Section 7.09
of the 2008 Credit Agreement is hereby amended by inserting the following new
clause (xvii):


 


(xvii)  the Borrower may prepay, repurchase, redeem
or otherwise acquire for value any Spinco Senior Notes so long as (A) no
Default or Event of Default is then in existence or would exist immediately
after giving effect thereto, (B) no Dividend Suspension Period is then in
effect, (C) the Minimum Liquidity Condition is satisfied at such time
(before and after giving effect to the respective repayment, repurchase,
redemption or acquisition of Spinco Senior Notes), (D) the Borrower shall
have delivered an officer’s certificate on the date of the proposed repayment,
repurchase, redemption or acquisition certifying that the Cumulative
Distributable Cash on such date (after giving effect to all prior and
contemporaneous adjustments thereto, except as a result of such proposed
repayment, repurchase, redemption or acquisition) exceeds the aggregate amount
of the proposed repayment, repurchase, redemption or acquisition of Spinco
Senior Notes, and (E) such Spinco Senior Notes shall be retired promptly
upon such repurchase, redemption or other acquisition by the Borrower; provided,
that in the event the Borrower exercises its rights to redeem any Spinco Senior
Notes in accordance with the indenture governing such Spinco Senior Notes, (x) the
conditions set forth in the foregoing clauses (A) through (D) of this
Section 7.09(a)(xvii) shall be satisfied as of the date of delivery of a
redemption notice in accordance with such indenture and (y) no Default
under Section 8.01 or 8.05 and no Event of Default shall exist as of the
date of or would exist immediately after giving effect to such repayment,
repurchase, redemption or acquisition of Spinco Senior Notes.  Notwithstanding anything herein to the
contrary, any gains of the Borrower arising from any prepayment, repurchase,
redemption or other acquisition of Spinco Senior Notes permitted under this Section 7.09(a)(xvii)
shall be deemed to be “non-cash gains” for the purpose of calculating Adjusted
Consolidated EBITDA, Available Cash and Excess Cash Flow and for all purposes
under the Credit Documents.


 


(c)                                  In
connection with the amendment described in the foregoing clause (b) of
this Section 1.07, clause (ii) of Section 3.03(A)(f) of
the 2008 Credit Agreement (which, for the avoidance of doubt, excludes the
remainder of such Section 3.03(A)(f) commencing with “in each case
less”, which remaining portion shall remain unchanged) is hereby deleted in its
entirety and replaced by the following:


 


“(ii) 90% of (1) Excess
Cash Flow, if any, during the preceding fiscal quarter minus (2) the
sum of (x) the amount of Dividends paid in cash by the Borrower on the
Borrower Common Stock during such fiscal quarter as otherwise permitted by this
Credit Agreement and (y) the amount of prepayments, repurchases, 


 


8

















 


redemptions or
acquisitions of Spinco Senior Notes paid in cash during such fiscal quarter as
permitted by Section 7.09(a)(xvii) of this Credit Agreement”


 


(d)                                 In
connection with the amendment described in the foregoing clause (b) of
this Section 1.07, the second parenthetical of clause (ii) of
the definition of “Cumulative Distributable Cash” set forth in Section 9
of the 2008 Credit Agreement is hereby amended by inserting the following at
the end of such parenthetical:


 


“but, for the avoidance
of doubt, including, without limitation, Restricted Payments made in accordance
with Section 7.09(a)(iii) or Section 7.09(a)(xvii))”


 


(e)                                  In
connection with the amendment described in the foregoing clause (b) of
this Section 1.07, the definition of “Minimum Liquidity
Condition” set forth in Section 9 of the 2008 Credit Agreement is
hereby amended by replacing the phrase “as of any date on which a Dividend is
to be paid on the Borrower Common Stock” with the phrase “as of any date on
which a Dividend is to be paid on the Borrower Common Stock (including any such
Dividend made pursuant to Section 7.09(a)(iii)) or a Restricted Payment is
to be made pursuant to Section 7.09(a)(xvii)”.


 


SECTION 1.08.                                             Amendments
to Section 9.  Section 9 of
the 2008 Credit Agreement is hereby amended, effective as of the date that is
one Business Day after the Effective Date, by (a) adding the following new
clause (iii) to the definition of “Lender Default”: “or (iii) with
respect to any RF Lender (solely with respect to such RF Lender’s RF Loans),
any Distress Event has occurred with respect to such RF Lender”; and (b) inserting
the following definitions in alphabetical order:


 


“Distress Event”
means, with respect to any Person (each, a “Distressed Person”), a
voluntary or involuntary case with respect to such Distressed Person under the
Bankruptcy Code or any similar bankruptcy laws of its jurisdiction of
formation, or a custodian, conservator, receiver or similar official is
appointed for such Distressed Person or any substantial part of such Distressed
Person’s assets, or such Distressed Person or any Person that directly or
indirectly controls such Distressed Person is subject to a forced liquidation,
merger, sale or other change of control supported in whole or in part by
guaranties or other support of (including without limitation the
nationalization or assumption of ownership or operating control by) the U.S.
government or other governmental authority, or such Distressed Person makes a
general assignment for the benefit of creditors or is otherwise adjudicated as,
or determined by any governmental authority having regulatory authority over
such Distressed Person or its assets to be, insolvent, bankrupt, or deficient
in meeting any capital adequacy or liquidity standard of any governmental
authority applicable to such Distressed Person.


 


“Impacted
Lender” means any RF Lender (a) that has given verbal or written
notice to the Administrative Agent or any Lender or has otherwise publicly
announced that such RF Lender believes it will become, or that fails following
inquiry promptly to provide to the Administrative Agent, a Letter of 


 


9

















 


Credit Issuer or the
Swingline Lender making such inquiry reasonably satisfactory assurance that
such RF Lender will not become, a Defaulting Lender, (b) as to which the
Administrative Agent, a Letter of Credit Issuer or the Swingline Lender has a
good faith belief that such RF Lender has defaulted more than once in
fulfilling its funding obligations (as a lender, letter of credit issuer or
issuer of bank guarantees and including, but not limited to, funding or paying
when due loan requests, swingline participations, letter of credit
participations, pro rata sharing obligations and expense and indemnification
obligations) under any other syndicated credit facility and such RF Lender
shall not have provided assurances satisfactory to the Administrative Agent,
Letter of Credit Issuer and Swingline Lender that despite such defaults such RF
Lender will not become a Defaulting Lender hereunder, or (c) with respect
to which any Distress Event has occurred with respect to any Affiliate of such
RF Lender that directly or indirectly controls such RF Lender.


 


SECTION 1.09.                                             Amendments
to Section 10. Section 10 of the 2008 Credit Agreement is hereby
amended by deleting Section 10.13 in its entirety and replacing it with
the following:


 


10.13                     Removal of
Agent that is a Defaulting Lender. 
If at any time any Lender serving as an Agent becomes a Defaulting
Lender or a Distress Event occurs with respect to such Lender, or an Affiliate
of a Defaulting Lender or a Lender subject to a Distress Event is serving as an
Agent (each, a “Defaulting Agent”), and such Defaulting Agent fails to
cure all Lender Defaults that caused it to become a Defaulting Lender or to
cure or enter into arrangements reasonably satisfactory to the Required Lenders
and, so long as no Default or Event of Default has occurred and is continuing,
the Borrower to eliminate any risk arising from such Defaulting Agent serving
as an Agent within 15 Business Days’ from the date it became a Defaulting Agent,
then the Borrower, so long as no Default or Event of Default has occurred and
is continuing, or the Required Lenders may, but shall not be required to,
direct such Defaulting Agent to resign as Agent (including, without limitation,
any functions and duties as Collateral Agent, Custodian, Letter of Credit
Issuer and/or Swingline Lender, as the case may be), and upon the direction of
the Borrower (so long as no Default or Event of Default has occurred and is
continuing) or the Required Lenders, as the case may be, such Defaulting Agent
shall be required to so resign, in accordance with the terms of Section 10.10.  Such resigning Defaulting Agent shall
cooperate reasonably and in good faith to effectuate the transfer of the agency
to the successor Agent appointed in accordance with the terms of Section 10.10,
including, without limitation, the execution and delivery of such assignments,
modifications, documents, certificates and further assurances as such successor
Agent may reasonably request.


 


SECTION 1.10.                                                           Amendments
to Section 11.  (a) Section 11.03
of the 2008 Credit Agreement is hereby deleted in its entirety and replaced by
the following:


 


10
















 


11.03                     Notices.


 


(a)                                  Generally.  Except in the case of notices and other
communications expressly permitted to be given verbally or by telephone (and
except as provided in subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by facsimile as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:


 


(1)                                  if
to the Administrative Agent or the Swingline Lender, to the address, facsimile
number, electronic mail address or telephone number specified for such Person
on Schedule 11.03;


 


(2)                                  if
to the Borrower, to:


 


FairPoint Communications, Inc.


521 East Morehead Street, Suite 500


Charlotte, North Carolina 28202


Attn: Shirley J. Linn, Executive Vice President and General Counsel


 


with a copy to:


 


Paul, Hastings, Janofsky & Walker LLP


75 E. 55th Street


New York, New York  10022


Attn:  Richard S. Denhup, Esq.;
and


 


(3)                                  if
to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified on Annex II hereto.


 


Notices and other
communications sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received;
notices and other communications sent by facsimile shall be deemed to have been
given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the
next business day for the recipient). 
Notices and other communications delivered through electronic
communications to the extent provided in subsection (b) below shall be
effective as provided in such subsection (b).


 


(b)                                 Electronic
Communications.  Notices and other
communications to the Lenders and each Letter of Credit Issuer hereunder may be
delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent, provided that the foregoing shall not apply to
notices to any Lender or any Letter of Credit Issuer pursuant to Section 1
or Section 1A if such Lender or such Letter of Credit Issuer, as
applicable, has notified the Administrative Agent that it 


 


11

















 


is incapable of receiving notices under such Section by
electronic communication.  The
Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.


 


Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient,
such notice or communication shall be deemed to have been sent at the opening
of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.


 


(c)                                  The
Platform.  The Borrower hereby
acknowledges that (i) the Administrative Agent will make available to the
Lenders and each Letter of Credit Issuer materials and/or information provided
by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”)
by posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”) and (ii) certain of the Lenders (each, a “Public
Lender”) may have personnel who do not wish to receive material non-public
information with respect to the Borrower or its Affiliates, or the respective
securities of any of the foregoing, and who may be engaged in investment and
other market-related activities with respect to such Persons’ securities.  The Borrower hereby agrees that it will use
commercially reasonable efforts to identify that portion of the Borrower
Materials that may be distributed to the Public Lenders and that (1) all
such Borrower Materials shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently
on the first page thereof; (2) by marking Borrower Materials “PUBLIC,”
the Borrower shall be deemed to have authorized the Administrative Agent, each
Letter of Credit Issuer and the Lenders to treat such Borrower Materials as not
containing any material non-public information (although it may be sensitive
and proprietary) with respect to the Borrower or its securities for purposes of
United States federal and state securities laws; (3) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Side Information;” and (4) the
Administrative Agent shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the
Platform not designated “Public Side Information.”


 


THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE 


 


12

















 


ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF
THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM
THE BORROWER MATERIALS.  NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY
AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or
any of its Affiliates and the partners, directors, officers, employees, agents,
trustees and advisors of such Person and of such Person’s Affiliates
(collectively, the “Agent Parties”) have any liability to the Borrower,
any Lender, each Letter of Credit Issuer or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract
or otherwise) arising out of the Borrower’s or the Administrative Agent’s
transmission of materials and/or information provided by or on behalf of the
Borrower under the Credit Documents through the Internet, except to the extent
that such losses, claims, damages, liabilities or expenses are determined by a
court of competent jurisdiction by a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Agent Party; provided,
however, that in no event shall any Agent Party have any liability to
the Borrower, any Lender, each Letter of Credit Issuer or any other Person for
indirect, special, incidental, consequential or punitive damages (as opposed to
direct or actual damages).


 


(d)                                 Change
of Address, Etc.  Each of the
Borrower, the Administrative Agent, each Letter of Credit Issuer and the
Swingline Lender may change its address, facsimile or telephone number for
notices and other communications hereunder by notice to the other parties
hereto.  Each other Lender may change its
address, facsimile or telephone number for notices and other communications
hereunder by notice to the Borrower, the Administrative Agent, each Letter of
Credit Issuer and the Swingline Lender. 
In addition, each Lender agrees to notify the Administrative Agent from
time to time to ensure that the Administrative Agent has on record (i) an
effective address, contact name, telephone number, facsimile number and
electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender.  Furthermore, each Public Lender agrees to
cause at least one individual at or on behalf of such Public Lender to at all
times have selected the “Private Side Information” or similar designation on
the content declaration screen of the Platform in order to enable such Public
Lender or its delegate, in accordance with such Public Lender’s compliance
procedures and applicable Law, including United States Federal and state
securities Laws, to make reference to Borrower Materials that are not made
available through the “Public Side Information” portion of the Platform and
that may contain material non-public information with respect to the Borrower
or its securities for purposes of United States federal or state securities
laws.


 


13

















 


(e)                                  Reliance
by Administrative Agent, each Letter of Credit Issuer and Lenders.  The Administrative Agent, each Letter of
Credit Issuer and the Lenders shall be entitled to rely and act upon any
notices (including telephonic notices) purportedly given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof.  The Borrower shall indemnify the
Administrative Agent, each Letter of Credit Issuer, each Lender and each such
Person’s Affiliates and the partners, directors, officers, employees, agents,
trustees and advisors of such Person and of such Person’s Affiliates, of each
of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the
Borrower.


 


(b)                                 Section 11
of the 2008 Credit Agreement is hereby amended by attaching Schedule 11.03
attached to this Amendment as Schedule 11.03 thereto.


 


(c)                                  Section 11
of the 2008 Credit Agreement is hereby amended by inserting the following new Section 11.17:


 


11.17                     Impacted
Lenders and Defaulting Lenders.  (a) If
at any time after a Lender has been deemed to be an Impacted Lender, such
Lender fulfills its funding obligations under and in accordance with this
Credit Agreement, so long as no Lender Default has occurred and is continuing
with respect to such Lender, such Lender shall no longer be deemed to be an
Impacted Lender.


 


(b)                                 Without
limiting any of the rights of the Borrower to replace any such Defaulting
Lender pursuant to Section 1.13, if any one or more Lender Defaults
of the type identified in clause (i) or (ii) of the definition of
Lender Default (each, a “Specified Lender Default”) occur with respect
to any Defaulting Lender, so long as no Lender Defaults of the type identified
in clause (iii) of the definition thereof shall have occurred with respect
to such Defaulting Lender, such Defaulting Lender shall have a one-time right
during the period commencing on the date such Lender became a Defaulting Lender
and ending on the 30th Business Day thereafter (the “Lender Cure
Period”) to cure all (but not less than all) of such Specified Lender
Defaults to the satisfaction of the Borrower, the Administrative Agent and each
Letter of Credit Issuer.  On the first
Business  Day after such Defaulting Lender
obtains written acknowledgment of the Borrower, the Administrative Agent and
each Letter of Credit Issuer acknowledging the cure of all (but not less than
all) Specified Lender Defaults of such Lender (such date, the “Reinstatement
Date”), (a) such Lender will no longer be deemed to be a Defaulting
Lender under this Agreement, (b) all such Lender’s voting rights and
rights to payment under the Credit Documents that were suspended as a result of
its status as a Defaulting Lender shall be restored and (c) the Borrower
shall no longer have the right to replace such Lender pursuant to Section 1.13
with respect to the cured Specified Lender Defaults.  Prior to any Reinstatement Date, each 


 


14

















 


Defaulting Lender shall
remain liable to the Borrower and the other Credit Parties for any and all
damages arising out of, in connection with, or as a result of, each Specified
Lender Default, consistent with the terms of this Agreement.  If one or more additional Lender Defaults
occur after the Reinstatement Date with respect to such Lender, the prior
written consent of the Required Lenders in their sole discretion and, so long
as no Event of Default shall have occurred and be continuing, the Borrower in
its sole discretion shall be required to restore such Lender as a
Non-Defaulting Lender.


 


SECTION 1.11.                                             Resignation and Waiver.  (a) Each of the Lenders party hereto
hereby (i) acknowledges the resignation of LCPI as Administrative Agent,
Collateral Agent and Swingline Lender under the Credit Documents, and (ii) waives
the requirement under Section 10.10 of the 2008 Credit Agreement that LCPI
provide 15 Business Days’ prior written notice prior to its resignation under
the Agency Assignment and Assumption becoming effective.


 


(b)                                 By
execution hereof, effective as of the Effective Date (a) Bank of America
hereby resigns as Syndication Agent under the Amended Credit Agreement and (b) Morgan
Stanley Senior Funding, Inc., hereby resigns as Co-Documentation Agent.


 


(c)                                  Each
of the Lenders party hereto hereby (i) acknowledges the resignations
described in clause (b) of this Section 1.11, and (ii) waives
the requirement under Section 10.10 of the 2008 Credit Agreement that Bank
of America and Morgan Stanley Senior Funding, Inc. provide 5 Business Days’
prior written notice prior to its resignation becoming effective.


 


SECTION 1.12.                                             LCPI
and the Amended Credit Agreement. The parties hereto hereby confirm that,
as of the date hereof, all of the provisions of the Amended Credit Agreement,
including, without limitation, Section 10 (The Agents) and Section 11.01
(Payment of Expenses), to the extent they pertain to LCPI as Administrative
Agent or Collateral Agent, continue in effect for the benefit of LCPI, its sub-agents
and their respective affiliates in respect of any actions taken or omitted to
be taken by any of them as Administrative Agent, Collateral Agent or a
sub-agent thereof and inure to the benefit of LCPI.


 


SECTION 1.13.                                             LCPI
as Bailee. On and after the Effective Date, all possessory collateral held
by LCPI for the benefit of the Lenders or Secured Creditors, as applicable
shall be deemed to be held by LCPI as agent and bailee for the Successor
Administrative Agent for the benefit of the Lenders or Secured Creditors, as
applicable, until such time as such possessory collateral has been delivered to
the Successor Administrative Agent. 
Notwithstanding anything herein to the contrary, each Credit Party
agrees that all of such Liens granted by any Credit Party, shall in all
respects be continuing and in effect and are hereby ratified and reaffirmed by
each Credit Party.  Without limiting the
generality of the foregoing, any reference to LCPI on any publicly filed
document, to the extent such filing relates to the liens and security interests
in the Collateral assigned hereby or by the Assignment and Assumption and until
such filing is modified to reflect the interests of the Successor
Administrative Agent, shall, with respect to such liens and security interests,
constitute a reference to LCPI as collateral representative of the Successor
Administrative Agent; provided, that the parties hereto agree that LCPI’s
role as such collateral representative shall impose no duties, obligations, or
liabilities on LCPI, including, 


 


15

















 


without limitation, any
duty to take any type of direction regarding any action to be taken against
such Collateral, whether such direction comes from the Successor Administrative
Agent, the Required Lenders, or otherwise and LCPI shall have the full benefit
of the protective provisions of Section 10 of the Amended Credit Agreement
(The Agents) while serving in such capacity.


 


SECTION 1.14.                                             Release.  Each of the Borrower, the
other Credit Parties and the Agents hereby unconditionally and irrevocably
waive all claims, suits, debts, liens, losses, causes of action, demands,
rights, damages or costs, or expenses of any kind, character or nature
whatsoever, known or unknown, fixed or contingent, which any of them may have
or claim to have against LCPI (in its capacity as Administrative Agent,
Collateral Agent, Pledgee, Custodian, a Lender, hedging counterparty, or any
other capacity under the Credit Documents) or its agents, employees, officers,
affiliates, directors, representatives, attorneys, successors and assigns
(collectively, the “Released Parties”) to the
extent arising at any time on or before the Effective Date out of or in
connection with the Credit Documents (collectively, the “Claims”).  Each of the Borrower, the Credit Parties, the
Agents and the Lenders further agree forever to refrain from commencing,
instituting or prosecuting any lawsuit, action or other proceeding against any
Released Parties with respect to such Claims. 
Each of the Released Parties shall be a third party beneficiary of this
Agreement.  Notwithstanding anything
herein to the contrary, in no event shall this Section 1.12 release or be
deemed to release LCPI or any other Released Party from any claims, suits,
debts, liens, losses, causes of actions, damages, costs or expenses of any
kind, character or nature arising under this Amendment, the Assignment and
Assumption, the 2008 Credit Agreement or the Amended Credit Agreement, in each
case to the extent arising after the Effective Date.


 


SECTION 1.15.                                             Effect of Agreement.  The
parties hereto acknowledge that, notwithstanding anything to the contrary in
the Amended Credit Agreement, any other Credit Document or herein, LCPI, in its
capacity as Administrative Agent or as Lender shall have no obligation to
provide any further financial accommodations to or for the benefit of the
Borrower, its Affiliates or any Credit Party pursuant to the Credit Documents.


 


SECTION 1.16.                                             Limitation
and Reservation of Rights. Each party hereto hereby confirms and agrees
that (a) this Agreement (i) does not impose on LCPI affirmative
obligations or indemnities not existing as of the date of its petition
commencing its proceeding under chapter 11 of title 11 of the United States
Code and that could give rise to administrative expense claims, and (ii) is
not inconsistent with the terms of the 2008 Credit Agreement and (b) (i) LCPI’s
rights to indemnification in its capacity as resigning Administrative Agent
under Section 10.10(g) of the Amended Credit Agreement and (ii) any
rights to indemnification of LCPI in its capacity as a Lender under any of the
Credit Documents, shall continue in effect for the benefit of LCPI, its
sub-agents and their respective affiliates.


 


SECTION 1.17.                                             Appointment
of Successor Agents. Effective as of the Effective Date, each of the
undersigned Lenders hereby (a) appoints Bank of America as successor
Administrative Agent, Collateral Agent and Swingline Lender under the Credit
Documents, (b) appoints Morgan Stanley Senior Funding, Inc. to
replace Bank of America as Syndication Agent, (c) appoints Wachovia Bank,
National Association to replace Morgan Stanley Senior Funding, Inc. as
Co-Documentation Agent, (d) acknowledges the appointment of Morgan Stanley
Senior 


 


16

















 


Funding, Inc. to
replace Lehman Brothers Inc. as a Joint-Lead Arranger, (e) acknowledges
the appointment of Deutsche Bank Securities Inc. and Wachovia Capital Markets,
LLC to replace Lehman Brothers Inc. as Joint Book Running Managers (all of the
foregoing appointments are reflected on the replacement cover page to the
Credit Agreement attached as Exhibit D hereto) and (f) acknowledges
and agrees that each of Bank of America, as successor Administrative Agent,
Collateral Agent and Swingline Lender under the Credit Documents, Morgan
Stanley Senior Funding, Inc., as successor Syndication Agent under the
Credit Documents, Wachovia Bank, National Association, as Co-Documentation
Agent under the Credit Documents, is the beneficiary of Section 10 of the
Amended Credit Agreement and all other indemnification and exculpatory
provisions of the Credit Documents; provided, that under no
circumstances (i) does Bank of America assume, nor shall Bank of America
be deemed to assume or be responsible for, (x) any obligations of the
Administrative Agent or Collateral Agent under or pursuant to any Credit
Document arising prior to the Effective Date or (y) any claim of any
nature arising at any time or from time to time against LCPI as Administrative
Agent, Swingline Lender and Collateral Agent Lender or in any other capacity
under or with respect to any Credit Documents or this Amendment or the
transactions contemplated thereby or hereby or (ii) do any of the other
institutions appointed or acknowledged to have been appointed above as Agents
or in other capacities under the Credit Documents hereby assume, nor shall any
of them be responsible for, any obligations as Agent or in such other capacity
arising under or pursuant to any Credit Document prior to the Effective Date.


 


SECTION 1.18.                                             Representations
and Warranties.  The Borrower hereby
represents and warrants to Bank of America, as successor Administrative Agent,
and the Lenders, as follows:


 


(a)                                  The
representations and warranties of the Borrower contained in Section 5 of
the 2008 Credit Agreement, as amended hereby (the “Amended
Credit Agreement”) or any other Credit Document are true and
correct in all material respects on and as of the date hereof and on and as of
the Effective Date with the same effect as if made on and as of the Effective
Date, except to the extent such representations and warranties specifically
refer to an earlier date, in which case they are true and correct in all
material respects as of such earlier date.


 


(b)                                 No
Default or Event of Default has occurred or is continuing under the Amended
Credit Agreement.


 


(c)                                  The
execution, delivery and performance by the Borrower of this Amendment have been
duly authorized by the Borrower.


 


(d)                                 Each
of this Amendment and the Amended Credit Agreement constitutes the legal, valid
and binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms.


 


(e)                                  The
execution, delivery, performance and compliance with the terms and provisions
by the Borrower of this Amendment and the consummation of the transactions
contemplated herein, do not and will not: (i) contravene the terms of any
of the 


 


17

















 


Borrower’s organizational documents; (ii) conflict
with or result in any breach or contravention of, or (except for the Liens
created under the Credit Documents) the creation of any Lien under, (A) the
terms of any indenture, mortgage, deed of trust or material agreement or
instrument to which the Borrower or any of its Subsidiaries is a party or by
which it or any of its property or assets are bound or to which it may be
subject or (B) any applicable provision of any law, statute, rule,
regulation, order, writ, injunction or decree of any court or governmental
instrumentality.


 


(f)                                    Schedule
1.18(f) attached hereto sets forth (i) an accurate and complete
list of all UCC financing statements, amendments and other UCC filings
delivered to LCPI, in its capacity as the Collateral Agent, under the 2008
Credit Agreement and the other Credit Documents, (ii) an accurate and
complete list of all notes, allonges, certificated stock, membership interests,
partnership interests and related stock powers and other similar instruments
delivered to LCPI, in its capacity as the Collateral Agent under and in
accordance with the Pledge Agreement, (iii) an accurate and complete list
of all Custodial Interests (as defined in the Deposit Agreement) delivered to
LCPI, as custodian, under and in accordance with the Deposit Agreement.


 


SECTION 1.19.                                             Effectiveness.  This Amendment shall become effective
promptly upon the satisfaction of all of the following conditions precedent
(the “Effective Date”):


 


(a)                                  Bank
of America, as successor Administrative Agent (in such capacity, the “Successor Administrative Agent”)
shall have received duly executed counterparts of this Amendment which, when
taken together, bear the authorized signatures of (i) the Borrower, (ii) LCPI,
as resigning Administrative Agent, Collateral Agent and Swingline Lender, (iii) Bank
of America, as Successor Administrative Agent, and as successor Collateral
Agent and Swingline Lender, (iv) the Required Lenders and (v) 100% of
the RF Lenders.


 


(b)                                 The
Successor Administrative Agent shall have received duly executed copies of the
Assignment and Assumption.


 


(c)                                  Bank
of America, as successor Collateral Agent, shall have received all items of
Collateral and other securities, information (including contact and related
information regarding all parties to the Credit Documents), documents and
instruments deliverable by LCPI to Bank of America under the Assignment and
Assumption, and shall have had a reasonable time to review and synthesize such
Collateral, instruments and information.


 


(d)                                 [Intentionally
Omitted.]


 


(e)                                  The
Successor Administrative Agent shall have received such other documents,
instruments and certificates as they shall reasonably request and such other
documents, instruments and certificates shall be satisfactory in form and
substance to the Lenders and their counsel. 
All corporate and other proceedings taken or to be taken in connection
with this Amendment and all documents incidental thereto, whether or not 


 


18

















 


referred to herein, shall be satisfactory in form and
substance to the Lenders and their counsel.


 


(f)                                    LCPI
shall have received from the Borrower payment in immediately available funds of
all costs, expenses, accrued and unpaid fees and other amounts payable to it as
an Agent and as a Lender pursuant to the Credit Documents, set forth on Schedule
1.19(f) hereto, in each case to the account specified on Schedule
1.19(f) hereto.


 


(g)                                 The
Successor Administrative Agent (i) shall have received from LCPI or the
Borrower all of the items specified on Schedule 1.18(f) hereto and (ii) the
Successor Administrative Agent shall have confirmed in writing a detailed list
of all items actually received from LCPI or the Borrower.


 


(h)                                 All
UCC financing statements, amendments and other UCC filings and all other
filings required to be made with any Governmental Authority specified on Schedule
1.18(f) hereof shall have been made.


 


SECTION 1.20.                                             APPLICABLE
LAW.  THIS AMENDMENT AND THE RIGHTS
AND OBLIGATIONS HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.


 


SECTION 1.21.                                             Costs
and Expenses.  The Borrower shall pay
all costs and expenses of the Successor Administrative Agent in connection with
the preparation, execution and delivery of this Amendment, the Assignment and
Assumption and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel for
the Successor Administrative Agent) in accordance with the terms of Section 11.01(a) of
the Amended Credit Agreement.


 


SECTION 1.22.                                             Credit
Document; Counterparts.  This
Amendment is and from and after the Effective Date shall be deemed to be a “Credit
Document” under the Amended Credit Agreement. This Amendment may be executed in
any number of counterparts, each of which shall constitute an original but all
of which when taken together shall constitute but one agreement. Delivery by
facsimile by any of the parties hereto of an executed counterpart of this
Amendment shall be as effective as an original executed counterpart hereof and
shall be deemed a representation that an original executed counterpart hereof
will be delivered, but the failure to deliver a manually executed counterpart
shall not affect the validity, enforceability or binding effect of this
Amendment.


 


SECTION 1.23.                                             2008
Credit Agreement.  Except as
expressly set forth herein, the amendments provided herein shall not, by
implication or otherwise, limit, constitute a waiver of, or otherwise affect
the rights and remedies of the Lenders or any Agent under the 2008 Credit
Agreement or any other Credit Document, nor shall it constitute a waiver of any
Default or Event of Default, nor shall it alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants or agreements
contained in the 2008 Credit Agreement or any other Credit Document.  The amendment provided herein shall apply and
be effective only with respect to the provisions of the 2008 Credit Agreement
specifically referred to by such amendment. 
Except to the extent a provision in the 2008 Credit Agreement is
expressly amended herein, the 2008 


 


19

















 


Credit Agreement
shall continue in full force and effect in accordance with the provisions
thereof.


 


[Signature pages follow]


 


20
















 


IN WITNESS WHEREOF, the parties
hereto have caused this Amendment to be duly executed by their duly authorized
officers, all as of the date first above written.


 


 


	
   

  	
   

  	
  FAIRPOINT COMMUNICATIONS, INC.,
  as

  Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Eugene B. Johnson

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Eugene B. Johnson

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer

  
						



 

















 


	
   

  	
   

  	
  LEHMAN COMMERCIAL PAPER INC., as

  resigning Administrative Agent, Collateral Agent

  and Swingline Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Randall Braunfeld

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Randall Braunfeld

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
						



 

















 


	
   

  	
   

  	
  BANK OF AMERICA, N.A., as

  successor Administrative Agent, Collateral Agent

  and Swingline Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Lisa Webster

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Lisa Webster

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
						



 

















 


	
   

  	
   

  	
  LEHMAN COMMERCIAL PAPER INC., as
  a

  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Randall Braunfeld

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Randall Braunfeld

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
						



 

















 


	
   

  	
   

  	
  BANK OF AMERICA, N.A., as a
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Lisa Webster

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Lisa Webster

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
						



 

















 


	
   

  	
   

  	
  [EACH OTHER LENDER], as a
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title: