SECOND AMENDMENT TO CREDIT AGREEMENT
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THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is dated as of the 31st day of October, 1995, and entered into
among GCI Communication Corp., an Alaskan corporation (herein, together with its
successors and assigns, called the "Company"), the Banks (as defined in the
Credit Agreement as defined below), NATIONSBANK OF TEXAS, N.A., a national
banking association, as Administrative Agent for itself and the Banks (the
"Administrative Agent").
WITNESSETH:
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WHEREAS, the Company, the Banks, and the Administrative Agent entered
into an Amended and Restated Credit Agreement, dated April 30, 1993, as
amended by that certain First Amendment to Credit Agreement, dated as of
October 3, 1994 (as further amended, restated or otherwise modified from time
to time, the "Credit Agreement");
WHEREAS, the Company has requested that the Credit Agreement be amended
to provide for an increase and changes in the letter of credit provisions,
changes in certain financial covenants and certain other changes;
WHEREAS, the Banks, the Administrative Agent and the Company have
agreed to modify the Credit Agreement upon the terms and conditions set forth
below;
NOW, THEREFORE, for valuable consideration hereby acknowledged, the
Company, the Banks and the Administrative Agent agree as follows:
SECTION 1. Definitions.
(a) In General. Unless specifically defined or redefined below,
capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement.
(b) Definition of Aggregate Commitment . The definition of "Aggregate
Commitment" on page 2 of the Credit Agreement is hereby amended and restated
in its entirety as follows:
"Aggregate Commitment" means the aggregate of the Commitments of
all the Banks hereunder, as such Aggregate Commitment may be reduced
pursuant to Section 2.1(f) of this Agreement.
(c) Definition of Commitment. The definition of "Commitment" on page 5
of the Credit Agreement is hereby amended and restated in its entirety as
follows:
"Commitment" means, for each Bank, the obligation of the Bank to
make Loans and issue Facility Letters of Credit not exceeding its pro
rata part of $15,750,000, as such amount may be modified from time to
time, as specified and set forth in any Assignment and Acceptance
Agreement, or any amendment to this Agreement.
(d) Definition of Facility Letter of Credit Commitment . The definition
of "Facility Letter of Credit Commitment" on page 7 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
"Facility Letter of Credit Commitment" means an amount equal to
$3,000,000, as such amount may be reduced by the Company from time to
time.
(e) Definition of Fixed Charges. The definition of "Fixed Charges" on
page 8 of the Credit Agreement is hereby amended and restated in its entirety
as follows:
"Fixed Charges" means, for any period, the sum of (A) interest
expense on all Indebtedness of the Parent, the Company and the
Subsidiaries, (B) scheduled principal payments on all Indebtedness of
the Parent, the Company and its Subsidiaries, plus (C) Capital
Expenditures paid by the Company or any Subsidiary, minus the cash
balance in the Company and its Subsidiaries as of any such quarter end
upon which such determination is made.
(f) Definition of Loan Documents. The definition of "Loan Documents" on
page 11 of the Credit Agreement is hereby amended and restated in its entirety
as follows:
"Loan Documents" means this Agreement, the Notes, the Second
Facility Loan Notes, the Pledge and Security Agreement, the Parent
Pledge Agreement, the Assignment and Security Agreement executed by
the Company, any Guaranties of the Obligations, the Fee Letter, Rate
Hedging Agreements executed by the Company with any Bank, any other
fee letter, the Facility Letters of Credit, the Second Facility Letter
of Credit and all Applications and other agreements relating to the
Facility Letters of Credit and the Second Facility Letter of Credit,
notes, instruments, documents and other items executed or delivered by
any Person in connection herewith, as any such documents, instruments,
notes or items may be amended, substituted, modified, replaced or
extended from time to time.
(g) Definition of Obligations. The definition of "Obligations" on page
12 of the Credit Agreement is hereby amended and restated in its entirety as
follows:
"Obligations" means all unpaid principal of and accrued and
unpaid interest on the Notes, all obligations under the Loan
Documents, including, without limitation, all accrued and unpaid fees,
all Reimbursement Obligations, Second Reimbursement Obligations,
Facility Letter of Credit Obligations, Second Facility Letter of
Credit Obligations and all other obligations of the Company, the
Parent and the Subsidiaries to the Banks or to any Bank or the
Administrative Agent arising under or in connection with the Facility
Letters of Credit, the Second Facility Letter of Credit, the
Applications, the Notes, the Second Facility Loan Notes, this
Agreement, any Guaranties of the Obligations, the Loan Documents and
Rate Hedging Obligations which are owed to any Bank, including without
limitation, interest, fees and other charges that would accrue or
become owing both prior to and subsequent to and but for the
commencement of any proceeding against or with respect to the Company,
the Parent, or any of their Subsidiaries under any chapter of the
Bankruptcy Code of 1978, 11 U.S.C. Sec. 101 et. seq whether or not a
claim is allowed for the same in any such proceeding to the extent
permitted by law.
(h) Definition of Note. The definition of "Note" on pages 11 and 12 of
the Credit Agreement is hereby amended and restated in its entirety as
follows:
"Note" means (a) a promissory note in substantially the form of
Exhibit "A" hereto, duly executed and delivered to the Administrative
Agent by the Company and payable to the order of a Bank in the amount
of its Commitment, or (b) any Second Facility Loan Note, or both, as
applicable in the context, including any amendment, modification,
extension, renewal or replacement of all of such promissory notes.
(i) Definition of Required Banks. The definition of "Required Banks" on
page 14 of the Credit Agreement is hereby amended and restated in its entirety
as follows:
"Required Banks" means Banks in the aggregate holding at least
66-2/3% of the sum of (a) the aggregate unpaid principal amount of the
outstanding Advances and (b) the aggregate unpaid amount of the
Reimbursement Obligations plus the Second Reimbursement Obligations,
or, if no Advances, Facility Letter of Credit Obligations or the
Second Facility Letter of Credit are outstanding, Banks in the
aggregate having least 66-2/3% of the Aggregate Commitment.
(j) Definition of Second Facility Letter of Credit Commitment. The
definition of "Second Facility Letter of Credit Commitment" shall be added in
its entirety to page 14 of the Credit Agreement in alphabetical order as
follows:
"Second Facility Letter of Credit Commitment" means an amount
equal to $10,080,000, as such amount may be reduced by the Company
from time to time.
(k) Definition of Second Facility Letter of Credit. The definition of
"Second Facility Letter of Credit" shall be added in its entirety to page 14
of the Credit Agreement in alphabetical order as follows:
"Second Facility Letter of Credit" means that certain
irrevocable stand-by NationsBank of Texas, N.A. Letter of Credit
issued or to be issued for the benefit of Hughes Communications
Galaxy, Inc. for the account of the Company, in the original maximum
face amount of $9,100,000.
(1) Definition of Second Facility Letter of Credit Obligations. The
definition of "Second Facility Letter of Credit Obligations" shall be added in
its entirety to page 14 of the Credit Agreement in alphabetical order as
follows:
"Second Facility Letter of Credit Obligations" means, as at the
time of determination thereof, all liabilities, whether actual or
contingent, of the Company to the Banks with respect to their
interests in the Second Facility Letter of Credit as Issuer or
participant, including the sum of (a) unpaid Second Reimbursement
Obligations and (b) the aggregate undrawn face amount of the
outstanding Second Facility Letter of Credit.
(m) Definition of Second Facility Loan. The definition of "Second
Facility Loan" shall be added in its entirety to page 14 of the Credit
Agreement in alphabetical order as follows:
"Second Facility Loan" has the meaning ascribed thereto in
Section 2.1(a)(ii) of this Agreement.
(n) Definition of Second Facility Loan Note. The definition of "Second
Facility Loan Note" shall be added in its entirety to page 14 of the Credit
Agreement in alphabetical order as follows:
"Second Facility Loan Note" means promissory notes in form
acceptable to the Administrative Agent evidencing the Second Facility
Loan, duly executed and delivered to the Administrative Agent and each
Bank in the amount of each Bank's pro rata percentage of the Second
Facility Loan, including any amendment, modification, extension,
renewal or replacement of any of such promissory notes.
(o) Definition of Second Reimbursement Obligations. The definition of
"Second Reimbursement Obligations" shall be added in its entirety to page 14
of the Credit Agreement in alphabetical order as follows:
"Second Reimbursement Obligations" means, at any time, the
aggregate of the obligations of the Company to the Banks in respect of
all unreimbursed payments or disbursements made by the Banks under or
pursuant to the Second Facility Letter of Credit.
SECTION 2. Heading on Page 1. The number $15,000,000 on the top of
page 1 of the Credit Agreement is hereby amended and restated in its entirety
to read $25,830,000.
SECTION 3. Sections 2.1, 2.2., 2.3, 2.4 and 2.5. Sections 2.1, 2.2,
2.3, 2.4 and 2.5 on pages 15 through 22 of the Credit Agreement are hereby
amended and restated in their entirety to read as follow:
2.1. Loans.
(a) (i) Loans Prior to Maturity Date. From and including the date of
this Agreement and prior to the Maturity Date, each Bank severally
agrees, subject to the terms and conditions set forth in this
Agreement, to make Loans to the Company from time to time in amounts
not to exceed in the aggregate at any one time outstanding the amount
of its Available Commitment. Subject to the terms of this Agreement,
the Company may borrow, repay and reborrow up to the amount of the
Aggregate Available Commitment at any time prior to the Maturity Date.
(ii) Loans Upon Draws Under the Second Facility Letter of Credit. So
long as (A) there exists no Unmatured Default or Default under this
Agreement both before and immediately after giving effect to any such
loan, (B) the Second Facility Letter of Credit has been terminated,
(C) there has been a draw under the Second Facility Letter of Credit,
and (D) each Bank has received a duly completed and executed Second
Facility Loan Note, and subject to the terms of this Agreement, each
Bank severally agrees to make a term Loan to the Company in an amount
not to exceed in the aggregate, the draw under the Second Facility
Letter of Credit (the "Second Facility Loan"). Amounts repaid by the
Company under the Second Facility Loan are not entitled to be
reborrowed by the Company.
(b) Ratable Loans. Each Advance hereunder shall consist of Loans made
from the several Banks ratably in proportion to the ratio that their
respective Commitments bear to the Aggregate Commitment.
(c) Rate Options; Interest Period Payments. Each Advance shall bear
interest at either the Floating Rate, the Fixed CD Rate or the Eurodollar
Rate, as the Company may select in accordance with the terms of Section 2.l(h)
of this Agreement. Each Advance shall be paid in full by the Company on the
last day of the Interest Period applicable thereto.
(d) Interest Recapture. If at any time the applicable rate of interest
under the Agreement on any portion of the Obligations (the "Designated Rate")
exceeds the Highest Lawful Rate, the rate of interest on any Advance shall be
limited to the Highest Lawful Rate, but any subsequent reductions in the
Designated Rate shall not reduce the rate of interest thereon below the
Highest Lawful Rate until the total amount of interest paid and accrued
thereon equals the amount of interest which would have accrued thereon if the
Designated Rate had at all times been in effect. In the event that at maturity
(stated or by acceleration or otherwise), or at final payment of the
Obligations, the total amount of interest paid and accrued is less than the
amount of interest which would have accrued if the Designated Rate had at all
times been in effect, then, at such time and to the extent permitted by law,
the Company shall pay to the Banks an amount equal to the difference between
(i) the lesser of the amount of interest which would have accrued if the
Designated Rate had at all times been in effect and the amount of interest
which would have accrued if the Highest Lawful Rate had at all times been in
effect, and (ii) the amount of interest actually paid on the Obligations.
(e) Mandatory Principal Payments.
(i) If the Company shall grant or implement a material price
decrease in MTS Service and the Company shall fail to demonstrate to
the satisfaction of the Required Banks, by projections employing
revised revenue forecasts based upon such price decrease that, after
giving effect thereto, the Company will be in compliance with the
provisions of Section 7.4 for the remaining term of this Agreement,
then the Company shall either (i) make a mandatory prepayment on the
Advances outstanding in such amount as the Required Banks shall deem
necessary to accomplish compliance with the provisions of Section 7.4
or (ii) furnish the Banks with cash collateral in such amount as the
Required Banks shall deem satisfactory. Mandatory payments made
pursuant to this Section 2.1.(e)(i) may not be reborrowed.
(ii) Upon any reduction in the Aggregate Commitment in
accordance with the terms of Section 2.1(f) below, the Company shall
immediately pay any amount necessary to reduce the outstanding
Obligations to an amount equal to or less than the sum of the
Aggregate Available Commitment plus the Second Facility Letter of
Credit or Second Reimbursement Obligations, together with interest
and fees accrued through such date on such amount repaid.
(iii) All outstanding Obligations shall be due and payable in
full on the Maturity Date.
(iv) The Company may from time to time pay all outstanding
Floating Rate Advances, or, in a minimum aggregate amount of
$100,000, or any integral multiple thereof, any portion of the
outstanding Floating Rate Advances upon one Business Day's prior
notice to the Administrative Agent without penalty or premium.
Subject to the terms of Section 4.3, the Company may from time to
time pay all Fixed Rate Advances, or, in a minimum aggregate amount
of $1,000,000, or any integral multiple of $100,000 in excess
thereof, any portion of the outstanding Fixed Rate Advances upon
three Business Days' prior written notice.
(v) All Reimbursement Obligations and Second Reimbursement
Obligations shall be due and payable on the earlier of (A) the
Maturity Date or (B) demand by the Administrative Agent.
(vi) If at any time the Company or any Subsidiary sells assets
or properties not in the ordinary course of business, which, in the
aggregate for any fiscal year of the Company, exceeds a gross sales
price of $500,000, the Company shall immediately make a prepayment on
the Second Facility Loan (or, if the Second Facility Letter of Credit
shall not have been drawn upon, the Company shall establish a cash
collateral account with the Administrative Agent to secure a draw
against the Second Facility Loan) in an amount equal to 100% of the
net proceeds of each such sale until the Second Facility Loan has
been repaid in full (or is 100% cash collateralized).
(f) Reduction of Commitment
(i) Optional. The Company may permanently reduce the Aggregate
Commitment in whole, or in part ratably among the Banks, in integral
multiples of $500,000, upon at least ten Business Days' written notice
to the Administrative Agent, which shall specify the amount of any such
reduction, provided, however, that the amount of the Aggregate
Commitment may not be reduced below the outstanding principal amount of
the Advances outstanding thereunder. No reduction in the Aggregate
Commitment shall reduce the Facility Letter of Credit Commitment unless
(A) there are no outstanding Facility Letters of Credit and (B) (I) the
Company shall designate such Aggregate Commitment reduction in writing
to apply to the Facility Letter of Credit Commitment or (II) the
Facility Letter of Credit Commitment shall be the only part of the
Aggregate Commitment that has not been reduced to zero. All accrued
fees shall be payable on the effective date of any termination of the
Aggregate Commitment.
(ii) Mandatory.
(A) Scheduled Reduction. Notwithstanding any other provision of
this Agreement reducing the Aggregate Commitment or otherwise,
commencing June 30, 1993 and on each Payment Date thereafter, the
Aggregate Commitment shall be permanently reduced by the amount set
forth opposite the applicable Payment Date below until the Aggregate
Commitment is reduced to zero. the Aggregate Commitment shall never be
less than zero. Once reduced, the Aggregate Commitment (or the
Commitment of any Bank) may not be reinstated.
Amount of Commitment
Payment Dates Reduction
June 30, 1993 $650,000
September 30, 1993 $650,000
December 31, 1993 $650,000
March 31, 1994 $650,000
June 30, 1994 $650,000
September 30, 1994 $650,000
December 31, 1994 $650,000
March 31, 1995 $650,000
June 30, 1995 $650,000
September 30, 1995 $650,000
December 31, 1995 $650,000
March 31, 1996 S650,000
June 30, 1996 $650,000
September 30, 1996 $650,000
December 31, 1996 $650,000
March 31, 1997 $812,500
June 30, 1997 $812,500
September 30, 1997 $812,500
December 31, 1997 All remaining amounts in
excess of zero
(B) Asset Sales. After the Second Facility Loan is repaid in
full, if at any time the Company or any Subsidiary sells assets or
properties not in the ordinary course of business, which, in the
aggregate for any fiscal year of the Company, exceeds a gross sales
price of $500,000, the Aggregate Commitment shall be immediately
reduced by an amount equal to 100% of the net proceeds of each such
sale until the Aggregate Commitment is zero.
(C) Expiration of Facility Letters of Credit. At such time
as the Company permits all of the Facility Letters of Credit to
terminate according to their terms (or such Facility Letters of Credit
are replaced or substituted by Letters of Credit issued by an
institution other than Administrative Agent), the Facility Letter of
Credit Commitment shall be reduced to zero.
(D) Maturity Date. The Aggregate Commitment, the Facility
Letter of Credit Commitment and each Bank's Commitment shall be
reduced immediately to zero on the Maturity Date.
(E) Expiration of Second Facility Letter of Credit. The
Second Facility Letter of Credit Commitment shall be immediately
reduced to zero on June 30, 1996.
(g) Method of Borrowing. Not later than noon Dallas time on each
Borrowing Date, each Bank shall make available its Loan or Loans in funds
immediately available in Dallas, to the Administrative Agent at its address
specified on the signature pages or to such other address as the
Administrative Agent requests in writing. The Administrative Agent will make
the funds so received from the Banks available to the Company at the
Administrative Agent's address set forth in Section 11.18 below.
Notwithstanding the foregoing provisions of this Section, to the extent that a
Loan made by a Bank matures on the Borrowing Date of a requested Loan, such
Bank shall apply the proceeds of the Loan it is then making to the repayment
of the maturing Loan.
(h) Method of Selecting Rate Options and Interest Periods. The Company
shall select the Rate Option and Interest Period applicable to each Advance
from time to time. The Company shall give the Administrative Agent irrevocable
notice (a "Borrowing Notice") to Ms. Linda Brown, telephone number (214)
508-3044 (facsimile number (214) 508-2020), not later than 10:00 a.m. Dallas
time at least one Business Day before the Borrowing Date of each Floating Rate
Advance, two Business Days before the Borrowing Date of each Fixed CD Rate
Advance and three Business Days before the Borrowing Date of each Eurodollar
Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii)the aggregate amount of such Advance and whether such Advance is
made under the Aggregate Commitment or the Second Facility Loan,
(iii) the Rate Option selected for such Advance, and
(iv)in the case of each Fixed Rate Advance, the Interest Period
applicable thereto.
Each Fixed Rate Advance shall bear interest from and including the first day
of the Interest Period applicable thereto to (but not including) the last day
of such Interest Period at the interest rate determined as applicable to such
Fixed Rate Advance. The Company may not select a Fixed Rate for an Advance if
there exists a Default or Unmatured Default. The Company shall select Interest
Periods with respect to Fixed Rate Advances so that it is not necessary to pay
a Fixed Rate Advance prior to the last day of the applicable Interest Period
in order to repay Advances because of a mandatory reduction of the Aggregate
Commitment pursuant to Section 2.1(f) of this Agreement, or a repayment of the
Second Facility Loan as provided in Section 2.l(n) hereof.
(i) Minimum Amount of Each Advance. Each Fixed Rate Advance shall be
in the minimum amount of $1,000,000 (and in multiples of $100,000 if in excess
thereof), and each Floating Rate Advance shall be in the minimum amount of
$100,000 (and in multiples of $100,000 if in excess thereof), provided,
however, that any Floating Rate Advance may be in the amount of the unused
Aggregate Available Commitment.
(j) Rate after Default. Except as provided in the next sentence,
after the occurrence and during the continuance of any Default, all Advances
outstanding hereunder shall bear interest until paid in full at a rate per
annum equal to the lesser of (i) the Highest Lawful Rate and (ii) the sum of
the Eurodollar Rate, the Fixed CD Rate or the Floating Rate otherwise
applicable thereto, plus two percent per annum. No Fixed Rate Advance may be
selected by the Company after the occurrence and during the continuance of any
Default. In the case of a Fixed Rate Advance the maturity of which is
accelerated, such Fixed Rate Advance shall bear interest for the remainder of
the applicable Interest Period, at the lesser of (i) the Highest Lawful Rate
and (ii) the higher of (A) the sum of the rate otherwise applicable to such
Interest Period plus two percent per annum or (B) the Floating Rate plus three
percent per annum.
(k) Notes; Telephonic Notices. Each Bank is hereby authorized to
record the principal amount of each of its Loans and each repayment on the
schedule attached to its Note provided, however, that the failure to so record
shall not affect the Company's obligations under such Note. The Company hereby
authorizes the Banks and the Administrative Agent to extend Advances and
effect Rate Option selections based on telephonic notices made by any person
or persons the Administrative Agent or any Bank in good faith believes to be
an Authorized Officer acting on behalf of the Company. The Company agrees to
deliver promptly to the Administrative Agent a written confirmation of each
telephonic notice signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the Administrative
Agent and the Banks, the records of the Administrative Agent and the Banks
shall govern absent manifest error.
(l) Interest Payment Dates; Interest Basis. Interest accrued on each
Advance shall be payable on the last day of its applicable Interest Period and
on any date on which the Advance is prepaid, whether due to acceleration or
otherwise. Interest accrued on each Fixed Rate Advance having an Interest
Period longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest on Floating Rate
Advances shall be calculated for actual days elapsed on the basis of a 365, or
when appropriate 366, day year; interest on Fixed Rate Advances and fees shall
be calculated for actual days elapsed on the basis of a 360-day year. Interest
shall be payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to noon (Dallas time)
at the place of payment. If any payment of principal of or interest on an
Advance shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment, provided that, if any Eurodollar
Loan extension shall be payable in the next calendar month, then such payment
shall be made on the next preceding Business Day.
(m) Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Administrative
Agent will notify each Bank of the contents of each Aggregate Commitment
reduction notice, Borrowing Notice and repayment notice received by it
hereunder. The Administrative Agent will notify each Bank of the interest rate
applicable to each Fixed Rate Advance promptly upon determination of such
interest rate and will give each Bank prompt notice of each change in the
Corporate Base Rate.
(n) Repayment of the Second Facility Loan. The Second Facility Loan
shall be repaid in installments on the following dates in the amounts set
forth opposite such dates:
Date Amount Due
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September 30, 1996 5% of Initial Amount of Second
Facility Loan
December 31, 1996 5% of Initial Amount of Second
Facility Loan
March 31, 1997 5% of Initial Amount of Second
Facility Loan
June 30, 1997 5% of Initial Amount of Second
Facility Loan
September 30, 1997 5% of Initial Amount of Second
Facility Loan
December 31, 1997 75% of Initial Amount of Second
Facility Loan and all other
Obligations
(o) Lending Installations. Each Bank may book its Loans at any Lending
Installation selected by such Bank and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such Lending
Installation and the Notes shall be deemed held by each Bank for the benefit
of such Lending Installation. Each Bank may, by written, telex, or telecopy
notice to the Administrative Agent and the Company, designate a Lending
Installation through which Loans will be made by it and for whose account Loan
payments are to be made.
2.2. Participation in Facility Letters of Credit and Second
Facility Letter of Credit. Each Bank severally agrees, on the terms
and conditions set forth in this Agreement and pursuant to Article III
hereof, to purchase on the date hereof (or on the date such Bank
became a party to this Agreement) participations in the Facility
Letter of Credit Commitment and the Second Facility Letters of Credit
Commitment and in each of the Facility Letters of Credit, the Second
Facility Letters of Credit, Reimbursement Obligations and Second
Reimbursement Obligations in an aggregate amount not to exceed its
ratable portion (based upon the ratio such Bank's Commitment bears to
the Aggregate Commitment) of the aggregate undrawn face amount of each
of the Facility Letters of Credit and Second Facility Letter of
Credit.
2.3. Fees. The Company agrees to pay to the Administrative
Agent the following fees:
(a) subject to Section 11.17 hereof, for the account of each
Bank, a commitment fee equal to 1/2 of 1% per annum on the
daily unused portion of such Bank's Commitment from the
date hereof to and including the Maturity Date, payable
hereafter as it accrues on each Payment Date hereafter and
on the Maturity Date;
(b) subject to Section 11.17 hereof, for the ratable account
of each Bank, a per annum fee on each Facility Letter of
Credit equal to 2% of the face amount of each Facility
Letter of Credit, payable in accordance with Section 3.2
below;
(c) subject to Section 11.17 hereof, for the Administrative
Agent's own account, such other fees as the Company and
the Administrative Agent shall have heretofore agreed upon
in writing, dated the date hereof (the "Fee Letter"), and
(d) subject to Section 11.17 hereof, for the ratable account
of each Bank, a per annum fee on the Second Facility
Letter of Credit equal to 2% of the face amount of the
Second Facility Letter of Credit, payable in accordance
with Section 3.2 below.
2.4. Method of Payment. All payments of principal, interest,
and fees hereunder shall be made in immediately available funds to the
Administrative Agent at the Administrative Agent's address on the
signature pages hereto or as otherwise specified pursuant to Section
11.18 hereof or at any other Lending Installation of the
Administrative Agent specified in writing by the Administrative Agent
to the Company, by noon (Dallas time) on the date when due and shall
be made ratably among the Banks. Each payment delivered to the
Administrative Agent for the account of any Bank shall be delivered
promptly by the Administrative Agent to such Bank in the same type of
funds which the Administrative Agent received at its address specified
pursuant to Section 11.18 hereof or at any Lending Installation
specified in a notice received by the Administrative Agent from such
Bank. The Administrative Agent is hereby authorized to charge the
account of the Company maintained with NationsBank for each payment of
principal, interest and fees as it becomes due hereunder.
2.5 Non-Receipt of Funds by the Administrative Agent. Unless
the Company or a Bank, as the case may be, notifies the Administrative
Agent prior to the date on which it is scheduled to make payment to
the Administrative Agent of (a) in the case of a Bank, the proceeds of
a Loan or (b) in the case of the Company, a payment of principal,
interest or fees to the Administrative Agent for the account of the
Banks, that it does not intend to make such payment, the
Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to make the
amount of such payment available to the intended recipient in reliance
upon such assumption. If such Bank or the Company, as the case may be,
has not in fact made such payment to the Administrative Agent, the
recipient of such payment shall, on demand by the Administrative
Agent, repay to the Administrative Agent the amount so made available
together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers
such amount at a rate per annum equal to (a) in the case of payment by
a Bank, the federal funds rate for such day (as determined by the
Administrative Agent) or (b) in the case of payment by the Company,
the interest rate applicable to the relevant Loan.
SECTION 4. ARTICLE III. ARTICLE III on pages 23 through 27 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
3.1. Issuance of Letters of Credit
(a) Issuance of Facility Letters of Credit. The Company shall give the
Issuer not less than three Business Days prior written notice of a request for
the issuance of a Facility Letter of Credit. Until the Maturity Date, upon
receipt of the Company's properly completed and duly executed Applications and
subject to the terms of such Applications and to the terms of this Agreement,
the Issuer agrees to issue Facility Letters of Credit on behalf of the Company
in an aggregate face amount not in excess of Facility Letter of Credit
Commitment at any one time outstanding. No Facility Letter of Credit shall
have a maturity extending beyond the earliest of (i) the Maturity Date, or
(ii) such earlier date as may be required to enable the Company to satisfy its
repayment obligations under Section 2.1(e) hereof. Subject to such maturity
limitations and so long as no Default or Unmatured Default has occurred and is
continuing or would result from the renewal of a Facility Letter of Credit,
the Facility Letters of Credit may be renewed by the Issuer in its discretion.
The Banks shall participate in any liability under the Facility Letters of
Credit and in any unpaid Reimbursement Obligations of the Company with respect
to any Facility Letter of Credit ratably according to the percentage their
Commitment bears to the Aggregate Commitment. The amount of the Facility
Letters of Credit issued and outstanding and the unpaid Reimbursement
Obligations of the Company for such Facility Letters of Credit shall reduce
the amount of Aggregate Commitment available, so that at no time shall the
aggregate outstanding Advances together with the sum of Reimbursement
Obligations plus the face amount of all outstanding Facility Letters of Credit
exceed an amount equal to the Aggregate Commitment, and at no time shall the
sum of all Loans by any Bank, plus its ratable share of amounts available to
be drawn under the Facility Letters of Credit and its ratable share of the
unpaid Reimbursement Obligations of the Company in respect of such Facility
Letters of Credit, exceed its ratable percentage of the Aggregate Commitment.
(b) Issuance of Second Facility Letter of Credit. The Company shall
give the Issuer not less than three Business Days prior written notice of a
request for the issuance of the Second Facility Letter of Credit or any
increase thereto. Until October 31, 1995, upon receipt of the Company's
properly completed and duly executed Application and subject to the terms of
such Application and to the terms of this Agreement, the Issuer agrees to
issue the Second Facility Letter of Credit on behalf of the Company in an
aggregate face amount not in excess of $9,100,000 at any one time outstanding.
Until June 20, 1996, upon receipt of the Company's properly completed and duly
executed Application and subject to the terms of such Application and to the
terms of this Agreement, the Issuer agrees to replace or amend the Second
Facility Letter of Credit on behalf of the Company to an aggregate face amount
not in excess of Second Facility Letter of Credit Commitment at any one time
outstanding. The Second Facility Letter of Credit shall not have a maturity
extending beyond June 30, 1996 and may not be renewed. The Banks shall
participate in any liability under the Second Facility Letter of Credit and in
any unpaid Second Reimbursement Obligations of the Company with respect to the
Second Facility Letter of Credit ratably according to the percentage their
Commitment bears to the Aggregate Commitment.
3.2. Letter of Credit Fee.
(a) Facility Letter of Credit Fees. In consideration for the issuance
of each Facility Letter of Credit and any renewal thereof, the Company shall
pay to the Administrative Agent for the account of the Issuer and the Banks,
ratably in accordance with the percentage that their Commitment bears to the
Aggregate Commitment, a letter of credit fee as set forth in Section 2.3(b)
hereof. The letter of credit fee shall accrue from the date of issuance of
each Facility Letter of Credit and shall be payable quarterly in arrears on
each Payment Date and on the date of termination of such Facility Letter of
Credit, and upon the Issuer's demand pursuant to Section 3.3 hereof.
(b) Second Facility Letter of Credit Fee. In consideration for the
issuance of the Second Facility Letter of Credit and any renewal thereof, the
Company shall pay to the Administrative Agent for the account of the Issuer
and the Banks, ratably in accordance with the percentage that their Commitment
bears to the Aggregate Commitment, a letter of credit fee as set forth in
Section 2.3(d) hereof. The letter of credit fee shall accrue from the date of
issuance of the Second Facility Letter of Credit and shall be payable
quarterly in arrears on each Payment Date and on the date of termination of
the Second Facility Letter of Credit, and upon the Issuer's demand pursuant to
Section 3.3 hereof.
3.3. Reimbursement Obligations and Second Reimbursement
Obligations.
(a) The Company hereby agrees to reimburse the Issuer, immediately upon
demand by the Issuer, and in immediately available funds, for any payment or
disbursement made by the Issuer under any Facility Letter of Credit or the
Second Facility Letter of Credit. Payment shall be made by the Company with
interest on the amount so paid or disbursed by the Issuer from and including
the date payment is made under any Facility Letter of Credit or the Second
Facility Letter of Credit to and including the date of payment, at the Floating
Rate in effect from time to time plus three percent per annum; provided,
however, that (a) with respect to any draw under any Facility Letter of Credit,
if the Company would be permitted under the terms of Section 2.1 to borrow
Advances in amounts at least equal to its reimbursement obligation for a
drawing under any Facility Letter of Credit, a Floating Rate Loan by each Bank,
ratably in an amount equal to the percentage that such Bank's Commitment bears
to the Aggregate Commitment, shall automatically be deemed made on the date of
any such payment or disbursement made by the Issuer in the amount of such
obligation and subject to the terms of this Agreement, and (b) with respect to
any draw under the Second Facility Letter of Credit, subject to the terms of
this Agreement, the Company may be entitled to borrow a term-loan from the
Banks in the form of a Second Facility Loan in accordance with the terms of
this Agreement.
(b) The Company hereby also agrees to pay to the Issuer, immediately
upon demand by the Issuer and in immediately available funds, as security for
its reimbursement obligations in respect of the Facility Letters of Credit and
Second Facility Letter of Credit under Section 3.3(a) hereof and any other
amounts payable hereunder and under the Notes, an amount equal to the sum of
the aggregate amount available to be drawn under Facility Letters of Credit
and the Second Facility Letter of Credit then outstanding plus any
Reimbursement Obligations and Second Reimbursement Obligations, irrespective
of whether any of the Facility Letters of Credit or the Second Facility Letter
of Credit has been drawn upon, at the occurrence of a Default or Unmatured
Default. Any such payments shall be deposited in a separate account designated
"GCIC Special Account" or such other designation as the Issuer shall elect.
All such amounts deposited with the Issuer shall be and shall remain funds of
the Company on deposit with the Issuer and may be invested by the Issuer as
the Issuer shall determine. Such amounts may not be used by the Issuer to pay
the drawings under the Facility Letters of Credit and the Second Facility
Letter of Credit; however, such amounts may be used by the Issuer as
reimbursement for Facility Letter of Credit or Second Facility Letter of
Credit drawings which the Issuer has paid. During the existence of a Default
or an Unmatured Default but after the expiry of any Facility Letter of Credit
or Second Facility Letter of Credit that was not drawn upon, the Company may
direct the Administrative Agent to use any cash collateral for any such
expired Facility Letter of Credit or Second Facility Letter of Credit, if any,
to prepay Advances in accordance with Section 2.1. Any amounts remaining in
the GCIC Special Account after the date of the expiry of all Facility Letters
of Credit and the Second Facility Letter of Credit and after all Obligations
have been paid in full, shall be repaid to the Company promptly after such
expiry and such payment in full.
(c) The obligations of the Company under this Section 3.3 will continue
until all Facility Letters of Credit and the Second Facility Letter of Credit
have expired and all Reimbursement Obligations and Second Reimbursement
Obligations with respect thereto have been paid in full by the Company and
until all of the other Obligations shall have been paid in full.
(d) The Company shall be obligated to reimburse the Issuer upon demand
for all amounts paid under the Facility Letters of Credit and Second Facility
Letter of Credit as set forth in Section 3.3(a) hereof; provided, however, if
the Company for any reason fails to reimburse the Issuer in full upon demand,
whether by borrowing Advances to pay such Reimbursement Obligations, Second
Reimbursement Obligations or otherwise, the Banks shall reimburse the Issuer
ratably in accordance with percentage that each Bank's ratable percentage of
the Commitment bears to the Aggregate Commitment, for amounts due and unpaid
from the Company as set forth in Section 3.4 hereof; provided, however, that
no such reimbursement made by the Banks shall discharge the Company's
obligations to reimburse the Issuer.
(e) The Company shall indemnify and hold the Issuer or any Bank, its
officers, directors, representatives and employees harmless from loss for any
claim, demand or liability which may be asserted against the Issuer or such
indemnified party in connection with actions taken under the Facility Letters
of Credit or the Second Facility Letter of Credit, or in connection with
either thereof (including losses resulting from the negligence of the Issuer
or such indemnified party), and shall pay the Issuer for reasonable fees of
attorneys (who may be employees of the Issuer) and legal costs paid or
incurred by the Issuer in connection with any matter related to the Facility
Letters of Credit or the Second Facility Letter of Credit, except for losses
and liabilities incurred as a direct result of the gross negligence or willful
misconduct of the Issuer or such indemnified party. If the Company for any
reason fails to indemnify or pay the Issuer or such indemnified party as set
forth herein in full, the Banks shall indemnify and pay the Issuer upon
demand, ratably in accordance with each Bank's percentage of the Aggregate
Commitment, such amounts due and unpaid from the Company. The provisions of
this Section 3.3(e) shall survive the termination of this Agreement.
3.4. Banks' Obligations. Each Bank agrees, unconditionally and
irrevocably to reimburse the Issuer (to the extent the Issuer is not
otherwise reimbursed by the Company in accordance with Section 3.3(a)
hereof) on demand for such Bank's ratable percentage according to the
percentage that such Bank's Commitment bears to the Aggregate
Commitment of each draw paid by the Issuer under any Facility Letter of
Credit or the Second Facility Letter of Credit. All amounts payable by
any Bank under this subsection shall include interest thereon at the
Federal Funds Effective Rate, from the date of the applicable draw to
the date of reimbursement by such Bank. No Bank shall be liable for the
performance or nonperformance of the obligations of any other Bank
under this Section. The obligations of the Banks under this Section
shall continue after the Maturity Date and shall survive termination of
any Loan Documents.
3.5. The Issuer's Obligations.
(a) The Issuer makes no representation or warranty, and assumes no
responsibility with respect to the validity, legality, sufficiency or
enforceability of any Application or any document relative thereto, or to the
collectibility thereunder. The Issuer assumes no responsibility for the
financial condition of the Company or for the performance of any obligation
of the Company. The Issuer may use its discretion with respect to exercising
or refraining from exercising any rights, or taking or refraining from taking
any action which may be vested in it or which it may ' entitled to take or
assert with respect to any Facility Letter of Credit, the Second Facility
Letter of Credit or any Application.
(b) The Issuer shall be under no liability to any Bank, with respect to
anything the Bank may do or refrain from doing in the exercise of its
judgment, the sole liability and responsibility of the Issuer being to handle
each Bank's share on as favorable a basis as the Issuer handles its own share
and to promptly remit to each Bank its share of any sums received by the
Issuer under any Application. The Issuer shall have no duties or
responsibilities except those expressly set forth herein and those duties and
liabilities shall be subject to the limitations and qualifications set forth
herein.
(c) Neither the Issuer nor any of its directors, officers, or employees
shall be liable for any action taken or omitted (whether or not such action
taken or omitted is expressly set forth herein, is negligent, or otherwise)
under or in connection herewith or any other instrument or document in
connection herewith, except for gross negligence or willful misconduct. The
Issuer shall incur no liability to any Bank or the Company in acting upon any
notice, document, order, consent, certificate, warrant or other instrument
believed by the Issuer to be genuine or authentic and to be signed by the
proper party.
SECTION 5. Section 5.2. Section 5.2 on pages 32 and 33 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
5.2. Each Advance or the Issuance of any Facility Letter of
Credit or the Second Facility Letter of Credit. The Banks shall not be
required to make any Advance, and the Issuer shall not be obligated to
issue any Facility Letter of Credit or the Second Facility Letter of
Credit, unless on the applicable Borrowing Date or the date of
issuance of such Facility Letter of Credit or Second Facility Letter
of Credit:
(a) There exists no Default or Unmatured Default.
(b) The representations and warranties contained in Article
VI and in any Application and Loan Document are true and
correct as of such Borrowing Date.
(c) In the event the Company shall have theretofore granted,
implemented or given notice of its intent to grant or
implement a material price decrease in MTS Service, the
Company shall demonstrate to the satisfaction of the
Required Banks that the Company shall be in compliance
with the provisions of Section 7.4.
(d) A duly completed and executed Application acceptable to
the Issuer for each and every Facility Letter of Credit
or for the Second Facility Letter of Credit, as
applicable.
(e) All legal matters incident to the making of such Advance
shall be satisfactory to the Banks and their respective
counsel.
Each Borrowing Notice with respect to each such Advance shall
constitute a representation and warranty by the Company that the
conditions contained in Sections 5.2(a) and 5.2(b) have been
satisfied. Any Bank may require a duly completed Compliance
Certificate as a condition to making an Advance.
SECTION 6. Section 7.4(a). Section 7.4(a) on page 41 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
(a) Leverage Ratio. The Company will maintain at all times
during the time periods set forth below, a Leverage Ratio
not greater than the ratio set forth below opposite each
such period:
Period Ratio
------ -----
Date hereof through and including 6/29/93 3.50 to 1.00
6/30/93 through and including 9/29/93 3.20 to 1.00
9/30/93 through and including 12/30/93 2.75 to 1.00
12/31/93 through and including 6/30/94 2.40 to 1.00
7/01/94 through and including 9/30/96 2.00 to 1.00
10/01/96 and thereafter 1.50 to 1.00
SECTION 7. Section 7.4(c). Section 7.4(c) on page 41 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
(c) Fixed Charge Coverage. At all times during the time
periods set forth below, the Company will not permit the
ratio of (i) Annualized Operating Cash Flow to (ii) Fixed
Charges for the four fiscal quarters then most recently
ended for the Company and the Subsidiaries on a
consolidated basis, to be less than the following ratios
set forth below opposite each such period:
Period Ratio
------ -----
Date hereof through and including 6/30/94 1.00 to 1.00
7/01/94 through and including 6/30/95 1.10 to 1.00
7/01/9S through and including 12/31/95 1.20 to 1.00
1/01/96 and thereafter 1.00 to 1.00
SECTION 8. Section 7.4(d). Section 7.4(d) on page 41 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
(d) Pro Forma Debt Service Coverage Ratio. The Company will
not permit the ratio of (i) Annualized Operating Cash
Flow to (ii) Pro Forma Debt Service for the Company and
the Subsidiaries on a consolidated basis, to be less than
the following ratios set forth below opposite each such
period:
Period Ratio
------ -----
Date hereof through and including 6/30/96 1.50 to 1.00
7/01/96 and thereafter 1.15 to 1.00
SECTION 9. Section 7.12. Section 7.12 on page 43 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
7.12. Dividends and Stock Repurchases. The Company will not
declare or pay (or set aside any funds or establish any sinking fund
for such purpose) any dividends on its capital stock (other than
dividends payable in its own capital stock), and the Company will not,
nor will it permit any Subsidiary to, redeem, repurchase or otherwise
acquire or retire any of its capital stock at any time outstanding,
provided that, so long as (a) both before and after giving effect to
such repurchase, there exists no Default or any event or circumstance
which, with the giving of notice or the passing of time could become a
Default, (b) such repurchase is prior to December 31, 1997, and (c)
the Company may declare or pay (or set aside any funds or establish
any sinking fund for such purpose) any dividends on its capital stock
to the Parent to enable the Parent to repurchase its capital stock up
to the lesser of (i) 1,000,000 shares or (ii) an amount of shares for
which the purchase price is less than or equal to $5,000,000 in the
aggregate. No Subsidiary may declare or pay any dividends on its
capital stock (other than dividends payable in its own capital stock),
except that Wholly-Owned Subsidiaries may declare or pay any dividend.
SECTION 10. Section 7.21. Section 7.21 on page 46 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
7.21. Letters of Credit. The Company will not, nor will it permit
any Subsidiary to, apply for or become liable upon any Letter of
Credit except the Facility Letters of Credit and the Second Facility
Letter of Credit.
SECTION 11. Section 8.12. Section 8.12 on page 51 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
8.12. Nonpayment by the Parent, the Company or any Subsidiary of
any Reimbursement Obligations or Second Reimbursement Obligations when
due, or the occurrence of any "default" as defined in any Loan
Document (other than this Agreement or the Notes), or the breach of
any term or provision in any Application for any Facility Letter of
Credit or Second Facility Letter of Credit, or the breach of any of
the terms or provisions of any Loan Document (other than this
Agreement or the Notes), which default or breach continues beyond any
period of grace therein provided.
SECTION 12. Section 9.1. Section 9.1 on pages 52 and 53 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
9.1. Acceleration and Other Remedies. If any Default described in
Section 8.6 or 8.7 occurs, the obligations of the Banks to make Loans
hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on
the part of the Administrative Agent or any Bank. If any other Default
occurs, Fixed Rate Loans shall no longer be available to the Company
and the Required Banks may, and at the direction of the Required Banks
the Administrative Agent shall, (a) terminate or suspend the
obligations of the Banks to make Loans hereunder, terminate any or all
of the Facility Letter of Credit Commitment, the Second Facility
Letter of Credit Commitment, the Aggregate Commitment or any
Commitment, or declare the Obligations to be due and payable,
whereupon the Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of
which the Company hereby expressly waives, and (b) demand and the
Company shall pay to the Issuer, immediately upon demand and in
immediately available funds, the amount equal to the aggregate amount
of the sum of the Facility Letters of Credit plus the Second Facility
Letter of Credit then outstanding, irrespective of whether such
Facility Letters of Credit or Second Facility Letter of Credit have
been drawn upon, all as set forth and in accordance with the terms of
provisions of Article III hereof. The Issuer shall promptly advise the
Company of any such declaration or demand but failure to do so shall
not impair the effect of such declaration or demand. The
Administrative Agent and the Banks may exercise all of the
post-default rights granted to them under the Loan Documents or under
Applicable Law. The rights and remedies of the Administrative Agent
and the Banks hereunder shall be cumulative, and not exclusive.
SECTION 13. Section 11.18. Section 11.18 on pages 62 and 63 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
11.18. Giving Notice. Any notice required or permitted to be
given under this Agreement may be, and shall be deemed, given when
deposited in the United States mail, postage prepaid, or by facsimile
when transmitted to the Company, the Banks or the Administrative Agent
at the addresses indicated below, or at such other addresses as any
party shall request by notice to the other parties:
If to the Administrative Agent:
NationsBank of Texas, N.A.
901 Main Street
64th Floor
Dallas, Texas 75202
Attn: W. Hutchinson McClendon, IV
Whitney L. Busse
Telephone: (214) 508-0996 (Mr. McClendon)
(214) 508-0950 (Ms. Busse)
Telecopy: (214) 508-9390
With a copy to:
Donohoe, Jameson & Carroll, P.C.
3400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
Attn: Melissa Ruman Stewart, Esq.
Telephone: (214) 698-3814
Telecopy: (214) 744-0231
If to the Company:
GCI Communication Corp.
2550 Denali Street, Suite 1000
Anchorage, Alaska 99503-2781
Attn: Mr. John M. Lowber
Telephone: (907) 265-5600
Telecopy: (907) 265-5676
With a copy to:
Hartig, Rhodes, Norman, Mahoney & Edwards
717 K Street
Anchorage, Alaska
Attn: Robert B. Flint, Esq.
Telephone: (907) 276-1592
Telecopy: (907) 277-4352
SECTION 14. Conditions Precedent. This Amendment shall not be effective
until the Administrative Agent shall have determined in its sole discretion
that all proceedings of the Company taken in connection with this Amendment
and the transactions contemplated hereby shall be satisfactory in form and
substance to the Administrative Agent:
(a) a loan certificate of the Company certifying (i) as to the
accuracy of its representations and warranties set forth in Article VI
of the Credit Agreement, as amended by this Amendment, the other Loan
Documents and in this Amendment, (ii) that there exists no Default, or
event which but for the giving of notice or passage of time or both
would constitute a Default, and the execution, delivery and
performance of this Amendment will not cause a Default or event which
but for the giving of notice or passage of time or both would
constitute a Default, (iii) as to resolutions authorizing the Company
to execute, deliver and perform this Amendment and all Loan Documents
and other documents and instruments delivered or executed in
connection with this Amendment, and (iv) that it has complied with all
agreements and conditions to be complied with by it under the Credit
Agreement, the other Loan Documents and this Amendment by the date
hereof;
(b) an opinion of counsel of Company acceptable to the
Administrative Agent with respect to this Second Amendment and all
other Loan Documents executed in connection herewith, including,
without limitation, an opinion with respect to the validity and
enforceability of the Loan Documents before and after giving effect to
this Second Amendment (including with respect to all security
interests and liens securing the increased Obligations";
(c) the Company shall have paid in full to the Administrative
Agent for the account of the Banks, a one-time facility fee for the
increase in the loan facility provided to the Company in the amount of
$81,225;
(d) new Notes for each Bank;
(e) the Company shall have executed and delivered to the
Administrative Agent that certain Assignment and Security Agreement
dated the date hereof, and the Administrative Agent and the Banks
shall have a valid first perfected security interest in all rights of
the Company in and to that certain Transponder Purchase Agreement for
Galaxy X, dated August 24, 1995, by and between the Company and Hughes
Communications Galaxy, Inc. (and Hughes Communications Galaxy, Inc.
shall have consented thereto in form and substance satisfactory to
Administrative Agent);
(f) a new compliance certificate executed and completed after
giving effect to the facility increases and covenant changes set forth
herein; and
(g) 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 Amendment and the transactions contemplated hereby.
SECTION 15. Representations and Warranties. The Company represents and
warrants to the Banks and the Administrative Agent that (a) the Aggregate
Commitment under the Credit Agreement as of the date hereof, as previously
reduced and after giving effect to this Amendment, is $9,250,000 (which
includes the $3,000,000 Facility Letter of Credit Commitment), (b) this
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), (c) there
exists no Default or event which but for the giving of notice or passage of
time or both would constitute a Default, under the Credit Agreement, (d) its
representations and warranties set forth in the Credit Agreement and other
Loan Documents are true and correct on the date hereof, (e) it has complied
with all agreements and conditions to be complied with by it under the Credit
Agreement and the other Loan Documents by the date hereof, and (f) the Credit
Agreement, as amended hereby, and the other Loan Documents remain in full
force and effect.
SECTION 16. Entire Agreement; Ratification. THE CREDIT AGREEMENT AND
THE LOAN DOCUMENTS 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 DOCUMENTS AND ALL OTHER DOCUMENTS AND AGREEMENTS EXECUTED IN
CONNECTION THEREWITH SHALL CONTINUE IN FULL FORCE AND EFFECT.
SECTION 17. Counterparts. This 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 18. GOVERNING LAW. THIS 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 19. CONSENT TO JURISDICTION. THE COMPANY 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 DOCUMENTS AND THE COMPANY 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 BANK TO BRING PROCEEDINGS AGAINST
THE COMPANY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING
BY THE COMPANY AGAINST THE ADMINISTRATIVE AGENT OR ANY BANK OR ANY AFFILIATE
OF THE ADMINISTRATIVE AGENT OR ANY BANK INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN DALLAS, TEXAS.
SECTION 20. WAIVER OF JURY TRIAL. THE COMPANY, THE ADMINISTRATIVE AGENT
AND EACH BANK 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 DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
IN WITNESS WHEREOF, this Second Amendment to Credit Agreement is executed as
of the date first set forth above.
GCI COMMUNICATION CORP.
/s/ John M. Lowber
By:
Its:SVP & CAO
NATIONSBANK OF TEXAS, N.A.,
Individually and as Administrative Agent
/s/ Whitney L. Busse
By:Whitney L. Busse
Its:Vice President
EXHIBIT A
NOTE
Dallas, Texas
$
------------- --------------
GCI Communication Corp., an Alaskan corporation ("Company"), promises to
pay to the order of NationsBank of Texas, N.A. ("Bank") the lesser of the
principal sum of NO\ONE-HUNDREDTHS DOLLARS ($ ) or the aggregate unpaid
principal amount of all Loans made by Bank to Company pursuant to Section 2.1
(a)(i) of the Agreement (as hereinafter defined) in immediately available funds
at the principal office of NationsBank of Texas, N.A., as Administrative Agent,
together with interest on the unpaid principal amount hereof at the rates and on
the dates set forth in the Agreement. The Company shall pay each Loan in full on
the last day of such Loan's applicable Interest Period and shall make such
mandatory payments and prepayments as are required to be made under the terms of
Article II of the Agreement.
The Bank shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT
THE LAW OF CONFLICTS) OF THE STATE OF TEXAS BUT GIVING EFFECT TO THE FEDERAL
LAWS APPLICABLE TO NATIONAL BANKS.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Amended and Restated Credit Agreement, dated as of April 30,
1993 (as amended or modified and in effect from time to time, the "Agreement"),
among Company, the banks named therein and NationsBank of Texas, N.A., as
Administrative Agent, to which Agreement reference is hereby made for a
statement of the terms and conditions under which this Note may be prepaid or
its maturity date accelerated. This Note is secured pursuant to certain pledge
and security agreements, all as more specifically described in the Agreement,
and reference is made thereto for a statement of the terms and provisions
thereof. Capitalized terms used herein and not otherwise defined herein are used
with the meanings attributed to them in the Agreement.
This Note is a renewal, extension, increase and modification of that
certain Note dated May 14, 1993 (the "Original Note") executed by the Company
and made payable to the Administrative Agent.
GCI COMMUNICATION CORP.
By: