SEVENTH AMENDMENT TO $50,000,000 AMENDED
AND RESTATED CREDIT AGREEMENT
SEVENTH AMENDMENT TO $50,000,000 AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is dated as of the 27th day of April, 2001 and entered into
among GCI HOLDINGS, INC., an Alaskan corporation (herein, together with its
successors and assigns, called the "Borrower"), the Lenders (as defined in the
Credit Agreement as defined below), BANK OF AMERICA, N.A., as Administrative
Agent for itself and the Lenders (the "Administrative Agent"), CREDIT LYONNAIS
NEW YORK BRANCH, as Documentation Agent and TD SECURITIES (USA), INC. as
Syndication Agent.
WITNESSETH:
WHEREAS, the Borrower, the Lenders and the Administrative Agent entered
into a $50,000,000 Amended and Restated Credit Agreement, dated November 14,
1997, as amended by that certain Consent and First Amendment, dated January 27,
1998, by that certain Second Amendment to Amended and Restated Credit Agreement
dated as of July 3, 1998, by that certain Third Amendment to Amended and
Restated Credit Agreement dated as of April 13, 1999, by that certain Fourth
Amendment to Amended and Restated Credit Agreement dated as of January 18, 2000,
by that certain Fifth Amendment to Amended and Restated Credit Agreement dated
as of October 25, 2000 and by that certain Sixth Amendment to Amended and
Restated Credit Agreement dated as of March 23, 2001 (as amended and as further
amended, restated or otherwise modified from time to time, the "Credit
Agreement") and a $200,000,000 Amended and Restated Credit Agreement, dated as
of November 14, 1997 (as amended by that certain Consent and First Amendment,
dated January 27, 1998, by that certain Second Amendment to Amended and Restated
Credit Agreement dated as of July 3, 1998, by that certain Third Amendment to
Amended and Restated Credit Agreement dated as of April 13, 1999, by that
certain Fourth Amendment to Amended and Restated Credit Agreement dated as of
January 18, 2000, by that certain Fifth Amendment to Amended and Restated Credit
Agreement dated as of October 25, 2000, by that certain Sixth Amendment to
Amended and Restated Credit Agreement dated as of March 23, 2001 and as further
amended, restated or otherwise modified from time to time, the "$200MM Credit
Facility");
WHEREAS, the Borrower has requested certain provisions of the Credit
Agreement be amended;
WHEREAS, the Lenders, the Administrative Agent and the Borrower have
agreed to modify the Credit Agreement upon the terms and conditions set forth
below;
NOW, THEREFORE, for valuable consideration hereby acknowledged, the
Borrower, the Lenders and the Administrative Agent agree as follows:
SECTION 1. Definitions, Generally. Unless specifically defined or
redefined below, capitalized terms used herein shall have the meanings ascribed
thereto in the Credit Agreement.
SECTION 2. Amendment to Section 7.06. Section 7.06 in Article VII of
the Credit Agreement shall be amended and restated in its entirety as follows:
7.06. Distributions and Restricted Payments. The Borrower
shall not, and shall not permit the Parents or any Restricted
Subsidiary to, make any Restricted Payments, other than any Restricted
Payment in the form of a Distribution made by any Restricted Subsidiary
to any other Restricted Subsidiary or to the Borrower, and other than
(a) so long as
(i) there exists no Default or Event of Default both
before and after giving effect to any such Restricted Payment,
(ii) the Total Leverage Ratio is less than 5.00 to
1.00 both before and after giving effect to any such
Restricted Payment and
(iii) the date of such Restricted Payment is after
September 30, 2000, Restricted Payments made (A) exclusively
out of the Capital Stock of GCI and/or (B) exclusively out of
Excess Cash Flow up to a maximum amount of the difference
between $15,000,000 in the aggregate over the term of this
Agreement, provided that, in the case of this subsection (B),
such $15,000,000 shall be minus the sum of (I) the aggregate
amount of Investments made in accordance with the terms of
Section 7.10(e) hereof over the term of this Agreement, and
(II) any specifically consented to or waived cash
distributions made by the Borrower to be used for GCI's
preferred stock or Senior Notes (or other cash payment which
would otherwise be prohibited by this Section 7.06),
(b) so long as there exists no Default or Event of Default
both before and after giving effect to any such Restricted Payment, the
Borrower may make Restricted Payments in the form of Distributions to
GCII in an amount not in excess of cash income Taxes attributable to
income from the Borrower and its Restricted Subsidiaries (and GCII may
make Restricted Payments in such amounts in the form of Distributions
to GCI), and scheduled cash interest payments required to be paid by
GCII under the Senior Notes, and GCII may make Restricted Payments in
the form of (and not in excess of) scheduled cash interest payments
required to be paid by GCII
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under the Senior Notes, provided that, the Lenders agree that in no
event shall the opening phrase of this subsection (b) prohibit the
payment of any such Distribution by the Borrower or payment of interest
by GCII on the Senior Notes for more than 180 consecutive days in any
consecutive 360-day period, unless there exists an Event of Default
under Section 8.01(a) hereof (whether by acceleration or otherwise),
(c) so long as there exists no Default or Event of Default
both before and after giving effect to the payment thereof, payment of
Management Fees and amounts due under the Transponder Purchase
Agreement for Galaxy X referred to in Section 7.18 hereof,
(d) so long as there exists no Default or Event of Default
both before and after giving effect to any such Restricted Payment, the
Borrower or any other GCI Entity (i) may make Restricted Payments on
Funded Debt incurred in accordance with the terms of Sections
7.02(b)(but with respect to the Senior Notes, only payments of cash
interest which accrues thereon), 7.02(d), 7.02(f)(i), and 7.02(g)
hereof, and (ii) may make payments of income Taxes, and
(e) after the Kanas Closing, so long as there exists no
Default or Event of Default both before and after giving effect to the
payment thereof, GCI may make payments and distributions annually in an
aggregate amount not to exceed $600,000 a year, to the holders of its
Series C 6% Preferred Stock, provided that such payments and
distributions permitted to be paid under this subsection (e) may only
be made out of the aggregate cash proceeds actually received by GCI
after January 1, 2000 from the exercise of stock options and stock
warrants.
SECTION 3. Conditions Precedent. This Seventh Amendment shall not be
effective until the Administrative Agent shall have determined in its sole
discretion that all proceedings of the Borrower taken in connection with this
Seventh Amendment and the transactions contemplated hereby shall be satisfactory
in form and substance to the Administrative Agent and the Borrower has satisfied
the following conditions:
(a) the Borrower shall have delivered to the Administrative
Agent a loan certificate of the Borrower certifying (i) as to the
accuracy of its representations and warranties set forth in Article V
of the Credit Agreement, as amended by this Seventh Amendment and the
other Loan Papers, (ii) that there exists no Default or Event of
Default, and the execution, delivery and performance of this Seventh
Amendment will not cause a Default or Event of Default, except those
Defaults and Events of Default specifically waived hereby, (iii) as to
resolutions authorizing the Borrower to execute, deliver and perform
this Seventh Amendment and all Loan Papers and to execute and perform
all transactions contemplated by this Seventh Amendment, and all other
documents and instruments delivered or executed in connection with this
Seventh Amendment, (iv) that it has complied with all agreements and
conditions to be
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complied with by it under the Credit Agreement, the other Loan Papers
and this Seventh Amendment by the date hereof and (v) that it has
received all consents, amendments and waivers from all Persons
necessary or required, if any, to (A) enter into this Amendment or (B)
effectuate the amendments set forth above, including, without
limitation, under the Indenture and related documentation and under the
AUSP Credit Agreement and related documentation;
(b) the Borrower and the Lenders shall have entered into a
seventh amendment to the $200MM Credit Facility on terms substantially
identical to the terms of this Seventh Amendment;
(c) the Borrower shall have paid the Administrative Agent a
five basis points amendment fee, such amendment fee to be allocated
among the Lenders executing this Seventh Amendment prior to noon
(Central Standard time), Friday, April 27, 2001, as evidenced by a
facsimile receipt by counsel to the Administrative Agent of such
Lender's signature to this Seventh Amendment prior to such time; and
(d) the Borrower shall have delivered such other documents,
instruments, and certificates, in form and substance satisfactory to
the Administrative Agent, as the Administrative Agent shall deem
necessary or appropriate in connection with this Seventh Amendment and
the transactions contemplated hereby.
SECTION 4. Representations and Warranties. The Borrower represents and
warrants to the Lenders and the Administrative Agent that (a) this Seventh
Amendment constitutes its legal, valid, and binding obligation, enforceable in
accordance with the terms hereof (subject as to enforcement of remedies to any
applicable bankruptcy, reorganization, moratorium, or other laws or principles
of equity affecting the enforcement of creditors' rights generally), (b) there
exists no Default or Event of Default under the Credit Agreement, (c) its
representations and warranties set forth in the Credit Agreement and other Loan
Papers are true and correct on the date hereof, (d) it has complied with all
agreements and conditions to be complied with by it under the Credit Agreement
and the other Loan Papers by the date hereof, and (e) the Credit Agreement, as
amended hereby, and the other Loan Papers remain in full force and effect.
SECTION 5. Waiver. Borrower has requested the Administrative Agent and
the Lenders to waive the restrictions on cash dividends in Section 7.06(a) of
the Credit Agreement, with respect to two payments on GCI's $20,000,000
preferred stock issuance, one payment to be made in April of 2001 and the other
payment to be made in October of 2001, each payment to be in an amount not to
exceed $1,000,000 (the "Payment Requests"). Administrative Agent and each Lender
hereby on a one-time, limited conditional basis waive the requirements of the
Credit Agreement and Section 7.06 thereof to permit (i) a cash distribution to
be made by the Borrower in April of 2001 in an amount not to exceed $1,000,000,
and (ii) a cash distribution to be made by the Borrower in October of 2001 in an
amount not to exceed $1,000,000, in each case only so long as each of the
following conditions has been satisfied: 1) each such distribution shall be used
by GCI to pay cash
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dividends on its $20,000,000 preferred stock issuance within one Business Day
after the date of distribution by the Borrower, 2) there shall exist no Default
or Event of Default both immediately before and after giving effect to each such
distribution; 3) the Total Leverage Ratio is less than 5.00 to 1.00 both before
and after giving effect to any such Restricted Payment and 4) each such cash
distribution shall be deducted from the $15,000,000 aggregate amount set forth
in Section 7.06(a) hereof. Nothing in this Section shall affect the Borrower's
obligations under the Credit Agreement or the other Loan Papers executed in
connection therewith (except as specifically provided in this Section), which
remain valid, binding and enforceable, and except as amended hereby, unamended,
or shall constitute a waiver by the Administrative Agent or the Lenders of any
of their rights or remedies (except as specifically provided in this Section),
now or at any time in the future, with respect to any requirement under the
Credit Agreement or the other Loan Papers or with respect to an Event of Default
or Default, occurring now or at any time in the future.
SECTION 6. Entire Agreement; Ratification. THE CREDIT AGREEMENT AND THE
LOAN PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENT
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXCEPT AS MODIFIED OR SUPPLEMENTED HEREBY, THE CREDIT AGREEMENT, THE OTHER LOAN
PAPERS AND ALL OTHER DOCUMENTS AND AGREEMENTS EXECUTED IN CONNECTION THEREWITH
SHALL CONTINUE IN FULL FORCE AND EFFECT.
SECTION 7. Counterparts. This Seventh Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument. In making proof hereof, it shall not be necessary to produce or
account for any counterpart other than one signed by the party against which
enforcement is sought.
SECTION 8. GOVERNING LAW. THIS SEVENTH AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
TEXAS, BUT GIVING EFFECT TO FEDERAL LAWS.
SECTION 9. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR TEXAS
STATE COURT SITTING IN DALLAS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN PAPERS AND THE BORROWER IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST
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THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
THE BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF
THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN PAPER
SHALL BE BROUGHT ONLY IN A COURT IN DALLAS, TEXAS.
SECTION 10. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN PAPER OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
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IN WITNESS WHEREOF, this Seventh Amendment to Amended and Restated
Credit Agreement is executed as of the date first set forth above.
IN WITNESS WHEREOF, this Seventh Amendment to Amended and Restated
Credit Agreement is executed as of the date first set forth above.
GCI HOLDINGS, INC.
/s/
By: John M. Lowber
Its: Senior Vice President
Chief Financial Officer
7
BANK OF AMERICA, N.A., Individually as a Lender
and as Administrative Agent
/s/
By: Derrick C. Bell
Its: Principal
8
CREDIT LYONNAIS NEW YORK BRANCH, as Documentation
Agent and Individually as a Lender
/s/
By: Jeremy Horn
Its:
9
TD SECURITIES (USA), INC., as Syndication Agent
/s/
By: William J. Burke
Its: Vice Prsident
10
TORONTO DOMINION (TEXAS), INC., Individually as a
Lender
By:
Its:
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COBANK, ACB, Individually as a Lender
/s/
By: Teresa L. Fountain
Its: Assistant Corporate Secretary
12
GENERAL ELECTRIC CAPITAL CORPORATION, Individually
as a Lender
/s/
By: Brian P. Ward
Its: Manager-Operations
13
UNION BANK OF CALIFORNIA, N.A., Individually as a
Lender
/s/
By: Matthew H. Fleming
Its: Assistant Vice President
14
BANK OF HAWAII, Individually as a Lender
By:
Its:
15
THE BANK OF NEW YORK, Individually as a Lender
/s/
By: Gerry Granovsky
Its: Vice President
16
BNP PARIBAS, Individually as a Lender
/s/
By: Gregg Bonardi
Its: Director, Media & Telecom Finance
/s/
By: Ted Koerner
Its: Director, Media & Finance
17
CITY NATIONAL BANK, Individually as a Lender
/s/
By: Patrick M. Drum
Its: Vice President
18
FLEET NATIONAL BANK, Individually as a Lender
/s/
By: Denis D. Hamboyan
Its: Director
19
THE FUJI BANK, LIMITED, Individually as a Lender
/s/
By: Shinzo Nishitate
Its: Senior Vice President
20
SUMITOMO MITSUI BANKING CORPORATION, Individually
as a Lender
By:
Its:
21
NATIONAL BANK OF ALASKA, Individually as a Lender
/s/
By: Brent Ulmer
Its: Vice President
22
ALLFIRST BANK, Individually as a Lender
/s/
By: Michael G. Toomey
Its: Vice President
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