EXHIBIT 10.1
FIRST AMENDMENT dated as of March 31, 2003 (this
"Amendment") to the Competitive Advance and Revolving Credit
Facility Agreement dated as of October 24, 2001 (the "Credit
Agreement"), among CITIZENS COMMUNICATIONS COMPANY, a
corporation organized under the laws of the State of
Delaware (the "Borrower"), the lenders party thereto (the
"Lenders") and JPMORGAN CHASE BANK, as administrative agent
(in such capacity, the "Administrative Agent") for the
Lenders.
WHEREAS, the Borrower has requested that the Lenders agree to
amend the Credit Agreement in the manner set forth herein, and the
Required Lenders are willing, on the terms and subject to the
conditions set forth herein, to agree to such amendment.
NOW, THEREFORE, in consideration of the above premises and other
good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not defined
herein shall have the meanings given to them in the Credit Agreement,
as amended hereby.
SECTION 2. Amendment of the Credit Agreement. Effective as of the
Effective Date (as defined in Section 5), the Credit Agreement is
amended as follows:
(a) Amendment of Section 1.01. Section 1.01 of the Credit
Agreement is amended by adding the following definitions in
appropriate alphabetical order:
"Consolidated EBITDA" shall mean, for any period,
Consolidated Net Income for such period plus (a) without
duplication and to the extent deducted in determining such
Consolidated Net Income, the sum of (i) consolidated interest
expense for such period, (ii) consolidated income tax expense for
such period, (iii) all amounts attributable to depreciation and
amortization for such period, (iv) dividends on preferred stock,
(v) losses attributable to minority interests, (vi) investment
losses, (vii) any nonrecurring charges for such period relating
to severance costs, restructuring costs or acquisition
assimilation expenses, (viii) any extraordinary charges or
non-cash charges for such period (provided that any cash payment
made with respect to any such non-cash charge shall be subtracted
in computing Consolidated EBITDA during the period in which such
cash payment is made) and (ix) net losses in connection with the
early retirement of debt and minus (b) without duplication and to
the extent included in determining such Consolidated Net Income,
(i) income or gains attributable to minority interests, (ii)
investment income and (iii) any extraordinary gains or non-cash
gains for such period, all determined on a consolidated basis in
accordance with GAAP. For purposes of calculating Consolidated
EBITDA for any period of four consecutive fiscal quarters (each,
a "Reference Period") in connection with any determination of the
Leverage Ratio, if after the first day of such Reference Period
and on or prior to any date on which the Leverage Ratio is to be
determined the Borrower or a consolidated Subsidiary shall have
effected a Material Transaction, Consolidated EBITDA for such
Reference Period shall be calculated after giving pro forma
effect thereto (without giving effect to cost savings not
actually realized), as determined reasonably and in good faith by
a Financial Officer, as if such Material Transaction occurred on
the first day of such Reference Period. As used in this
definition, `Material Transaction' means any acquisition or
disposition outside the ordinary course of business of any
property or assets that (x) constitute assets comprising all or
substantially all of an operating unit of a business or equity
interests of a Person representing a majority of the ordinary
voting power or economic interests in such Person that are
represented by all its outstanding capital stock and (y) involves
aggregate consideration in excess of $50,000,000. Notwithstanding
the foregoing, Consolidated EBITDA for any period shall not in
any event be calculated to include the operations, income or
expenses of any Non-Recourse Joint Venture, except to the extent
of dividends or other distributions actually paid to the Borrower
or any of its consolidated Subsidiaries (other than Non-Recourse
Joint Ventures) during such period."
"Consolidated Net Income" shall mean, for any period, the
net income or loss of the Borrower and its consolidated
Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP; provided that there shall be excluded
(a) the income of any Non-Recourse Joint Venture or any other
Person (other than the Borrower) in which any other Person (other
than the Borrower or any consolidated Subsidiary of the Borrower
or any director holding qualifying shares in compliance with
applicable law) owns an equity interest, except to the extent of
the amount of dividends or other distributions actually paid to
the Borrower or any of its consolidated Subsidiaries (other than
Non-Recourse Joint Ventures) during such period, and (b) (except
as otherwise specified in the definition of Consolidated EBITDA
in connection with Material Transactions), the income or loss of
any Person accrued prior to the date it becomes a Subsidiary of
the Borrower or is merged into or consolidated with the Borrower
or any Subsidiary of the Borrower or the date that such Person's
assets are acquired by the Borrower or any Subsidiary of the
Borrower."
"Leverage Ratio" means, on any date, the ratio of (a) Total
Indebtedness as of such date to (b) Consolidated EBITDA for the
period of four consecutive fiscal quarters of the Borrower most
recently ended on or prior to such date."
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"Total Indebtedness" means, as of any date, the aggregate
principal amount of Indebtedness of the Borrower and its
consolidated Subsidiaries outstanding as of such date, in the
amount and only to the extent that such Indebtedness would be
reflected on a balance sheet prepared as of such date on a
consolidated basis in accordance with GAAP, minus the amount of
cash and cash equivalents in excess of $50,000,000 that would be
reflected on such balance sheet; provided, however, that Total
Indebtedness shall not include (i) Non-Recourse Joint Venture
Indebtedness, (ii) the equity units consisting of a 6.75% senior
note due 2006 and a warrant for the common stock of the Borrower
(the "6.75% Equity Units") and (iii) the 5% Company Obligated
Mandatorily Redeemable Convertible Preferred Securities due 2036
(the "EPPICS")."
(b) Amendment of Section 5.02. Section 5.02 of the Credit
Agreement is amended by redesignating paragraphs (c), (d), (e) and (f)
as paragraphs (d), (e), (f) and (g), respectively, and by adding a new
paragraph (c) to read as follows:
"(c) concurrently with any delivery of financial statements
under paragraph (a) or (b) of this Section, a certificate of a
Financial Officer of the Borrower (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying
the details thereof and any action taken or proposed to be taken
with respect thereto and (ii) setting forth reasonably detailed
calculations (including with respect to any pro forma effect
given to a Material Transaction) demonstrating compliance with
Section 6.07 as of the last day of the most recent fiscal quarter
covered by such financial statements;"
(c) Amendment of Section 6.07. Section 6.07 is hereby amended to
read in its entirety as follows:
"SECTION 6.07. Leverage Ratio".
Permit the Leverage Ratio on any date during any period set
forth below to exceed the ratio set forth opposite such period:
Period Ratio
From December 31, 2002, through 4.50 to 1.0
December 30, 2003
From December 31, 2003, through 4.25 to 1.0
December 30, 2004
December 31, 2004 and thereafter 4.00 to 1.0"
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SECTION 3. No Other Amendments; Confirmation. Except as
expressly set forth herein, this Amendment shall not by
implication or otherwise limit, impair, constitute a waiver of,
or otherwise affect the rights and remedies of the Lenders or the
Administrative Agent under the Credit Agreement and shall not
alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the
Credit Agreement, all of which are ratified and affirmed in all
respects and shall continue in full force and effect. This
Amendment shall apply and be effective only with respect to the
provisions of the Credit Agreement specifically referred to
herein. After the Effective Date, any reference to the Credit
Agreement shall mean the Credit Agreement, as modified hereby.
SECTION 4. Representations and Warranties. The Borrower
hereby represents and warrants to the Administrative Agent and
the Lenders as of the date hereof:
(a) No Default or Event of Default has occurred and is
continuing.
(b) The execution, delivery and performance by the
Borrower of this Amendment have been duly authorized by all
necessary corporate and other action and do not and will not
require any registration with, consent or approval of,
notice to or action by, any Person (including any
Governmental Authority). The Credit Agreement as amended by
this Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower
in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting the
enforcement of creditors' rights generally and by general
principles or equity, including an implied covenant of good
faith and fair dealing.
(c) All representations and warranties of the Borrower
contained in the Credit Agreement are true and correct in
all material respects as of the date hereof (except with
respect to representations and warranties expressly made
only as of an earlier date, which representations were true
and correct in all material respects as of such earlier
date).
SECTION 5. Effectiveness. This Amendment shall become
effective retroactively to March 31, 2003 on the date (the
"Effective Date") on which the Administrative Agent shall have
received counterparts hereof duly executed and delivered by the
Borrower and the Required Lenders.
SECTION 6. Expenses. The Borrower agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in
connection with this Amendment, including the reasonable fees,
charges and disbursements of counsel for the Administrative
Agent.
SECTION 7. Governing Law; Counterparts. (a) This Amendment
and the rights and obligations of the parties hereto shall be
governed by, and construed and interpreted in accordance with,
the laws of the State of New York.
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(a) This Amendment may be executed by one or more of
the parties to this Amendment on any number of separate
counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
This Amendment may be delivered by facsimile transmission of
the relevant signature pages hereof.
SECTION 8. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
CITIZENS COMMUNICATIONS COMPANY,
by /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, Finance and Treasurer
JPMORGAN CHASE BANK,
individually and as Administrative Agent,
by /s/ Xxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Director
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SIGNATURE PAGE FOR
FIRST AMENDMENT TO
CITIZENS COMMUNICATIONS COMPANY
CREDIT AGREEMENT
DATED AS OF OCTOBER 24, 2001
To Approve this Amendment:
Institution: XX Xxxxxx Xxxxx Bank
--------------------
by /s/ Xxxx Xxxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxxx
Title: Managing Director
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SIGNATURE PAGE FOR
FIRST AMENDMENT TO
CITIZENS COMMUNICATIONS COMPANY
CREDIT AGREEMENT
DATED AS OF OCTOBER 24, 2001
To Approve this Amendment:
Institution: Citibank, N.A.
------------------------
by /s/ Xxxxxx Labergere
-----------------------------
Name: Xxxxxx Labergere
Title: Vice President
8
SIGNATURE PAGE FOR
FIRST AMENDMENT TO
CITIZENS COMMUNICATIONS COMPANY
CREDIT AGREEMENT
DATED AS OF OCTOBER 24, 2001
To Approve this Amendment:
Institution: Bear Xxxxxxx Corporate Lending Inc.
------------------------------------
by /s/ Xxxxxx Xxxxxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Authorized Signatory
9
SIGNATURE PAGE FOR
FIRST AMENDMENT TO
CITIZENS COMMUNICATIONS COMPANY
CREDIT AGREEMENT
DATED AS OF OCTOBER 24, 2001
To Approve this Amendment:
Institution: Toronto Dominion (Texas) Inc.
---------------------------------
by /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
10
SIGNATURE PAGE FOR
FIRST AMENDMENT TO
CITIZENS COMMUNICATIONS COMPANY
CREDIT AGREEMENT
DATED AS OF OCTOBER 24, 2001
To Approve this Amendment:
Institution: Mizuho Corporate Bank, Limited
---------------------------------
by /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
11
SIGNATURE PAGE FOR
FIRST AMENDMENT TO
CITIZENS COMMUNICATIONS COMPANY
CREDIT AGREEMENT
DATED AS OF OCTOBER 24, 2001
To Approve this Amendment:
Institution: Bank One, N.A.
---------------------------------
by /s/ Xxxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Director
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SIGNATURE PAGE FOR
FIRST AMENDMENT TO
CITIZENS COMMUNICATIONS COMPANY
CREDIT AGREEMENT
DATED AS OF OCTOBER 24, 2001
To Approve this Amendment:
Institution: Bank of America, N.A.
---------------------------------
by /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Principal
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SIGNATURE PAGE FOR
FIRST AMENDMENT TO
CITIZENS COMMUNICATIONS COMPANY
CREDIT AGREEMENT
DATED AS OF OCTOBER 24, 2001
To Approve this Amendment:
Institution: Mellon Bank, N.A.
---------------------------------
by /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Assistant Vice President
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