FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is dated as of the 25th day of April, 1997, and entered into
among GCI Communication Corp., an Alaskan corporation (herein, together with its
successors and assigns, called the "Company"), the Lenders (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 Lenders (the
"Administrative Agent").
WITNESSETH:
WHEREAS, the Company, the Lenders and the Administrative Agent entered
into a Third Amended and Restated Credit Agreement, dated October 31, 1996 (as
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 extension and certain other changes;
WHEREAS, the Lenders, 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 Lenders 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 Applicable Margin. The definition of "Applicable
Margin" on pages 2 and 3 of the Credit Agreement is hereby amended and restated
in its entirety as follows:
"Applicable Margin" means (i) with respect to the Base Rate
Advances under the Facility, 1.625% per annum and (ii) with respect to
LIBOR Advances, 2.750% per annum. Notwithstanding the foregoing,
effective three Business Days after receipt by the Administrative Agent
from the Company of a Compliance Certificate delivered to the Lenders
for any reason and demonstrating a change in the Leverage Ratio to an
amount so that another Applicable Margin should be applied pursuant to
the table set forth below, the Applicable Margin for each type of
Advance shall mean the respective amount set forth below opposite such
relevant Leverage Ratio in Columns A and B below, in each case until
the first succeeding Quarterly Date which is at least three Business
Days after receipt by the Administrative Agent from the Company of a
Compliance Certificate, demonstrating a change in the Leverage Ratio to
an amount so that another Applicable Margin shall be applied; provided
that, if there exists a Default or Event of Default or if the Leverage
Ratio shall at any time exceed or equal 3.50 to 1.00, the Applicable
Margin shall again be the respective amounts first set forth in this
definition; provided further, that the Applicable Margin in effect on
the Closing Date shall be determined pursuant to a Compliance
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Certificate delivered on the Closing Date, provided, further, that if
the Company fails to deliver any financial statements to the
Administrative Agent within the required time periods set forth in
Sections 6.05(a) and Section 6.05(b) hereof, the Applicable Margin
shall again be the respective amounts first set forth in this
definition until the date which is three Business Days after the
Administrative Agent receives financial statements from the Company
which demonstrate that another Applicable Margin should be applied
pursuant to the table set forth below; and provided further, that the
Applicable Margin shall never be a negative number.
Column A Column B
Leverage Ratio Base Rate LIBOR
-------------- --------- -----
Greater than or equal
to 3.50 to 1.00 1.625% 2.750%
Greater than or equal to
3.00 to 1.00 but less than
3.50 to 1.00 1.375% 2.500%
Greater than or equal to
2.50 to 1.00 but less than
3.00 to 1.00 1.125% 2.250%
Greater than or equal to
2.00 to 1.00 but less than
2.50 to 1.00 0.875% 2.000%
Less than 0.625% 1.750%
2.00 to 1.00
(c) Definition of Leverage Ratio. The definition of "Leverage Ratio" on
page 12 of the Credit Agreement is hereby amended and restated in its entirety
as follows:
"Leverage Ratio" means as of any date of determination, the
ratio of (a) Total Debt of the Parent, the Company and the Restricted
Subsidiaries on such date of determination to (b) Annualized Operating
Cash Flow, all calculated for the Parent, the Company and the
Restricted Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, provided that, initial losses from the Local
Telephone Business in an aggregate amount not to exceed $2,500,000 for
the period from January 1, 1997 through and including July 24, 1997 may
be excluded from the calculation of Operating Cash Flow for the
purposes of determining the Leverage Ratio.
(d) Definition of Local Telephone Business. The definition of "Local
Telephone Business" shall be added on page 13 of the Credit Agreement in
alphabetical order as follows:
"Local Telephone Business" means the local telephone business
of the Company in Anchorage, Alaska and the surrounding areas, for
which the Company received its authority to operate from the Alaskan
Public Utilities Commission on February 4, 1997.
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(e) Definition of Maturity Date. The definition of "Maturity Date" on
page 14 of the Credit Agreement is hereby amended and restated in its entirety
as follows:
"Maturity Date" means July 24, 1997, or such earlier date all
of the Obligations become due and payable (whether by acceleration,
prepayment in full, scheduled reduction or otherwise).
SECTION 2. Section 7.01(a). Section 7.01(a) on page 47 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
(a) Leverage Ratio. At all times during the term hereof, the
Leverage Ratio shall not be greater than (i) 3.00 to 1.00 for the
period from the Closing Date through and including December 31, 1996,
and (ii) 3.75 to 1.00 for the period from January 1, 1997 and
thereafter.
SECTION 3. Conditions Precedent. This First 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
First 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 V
of the Credit Agreement, as amended by this First Amendment and the
other Loan Papers, (ii) that there exists no Default or Event of
Default, and the execution, delivery and performance of this First
Amendment will not cause a Default or Event of Default, (iii) as to
resolutions authorizing the Company to execute, deliver and perform
this First Amendment and all Loan Papers and other documents and
instruments delivered or executed in connection with this First
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 Papers and this First Amendment by the date hereof;
(b) an opinion of counsel of Company acceptable to the
Administrative Agent with respect to this First Amendment and all other
Loan Papers executed in connection herewith, including, without
limitation, an opinion with respect to the validity and enforceability
of the Loan Papers before and after giving effect to this First
Amendment (including with respect to all security interests and liens
securing the extended Obligations);
(c) new Notes for each Lender; and
(d) 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 First Amendment and the transactions contemplated hereby.
SECTION 4. Representations and Warranties. The Company represents and
warrants to the Lenders and the Administrative Agent that (a) this First
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
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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. 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 6. 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 7. GOVERNING LAWSECTION 7. 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 8. CONSENT TO JURISDICTIONSECTION 8. 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 PAPERS 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 LENDER
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 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.
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SECTION 9. WAIVER OF JURY TRIALSECTION 9. WAIVER OF JURY TRIAL. THE
COMPANY, 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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THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, this First Amendment to Third Amended and Restated
Credit Agreement is executed as of the date first set forth above.
GCI COMMUNICATION CORP.
/s/
By: John M. Lowber
Its: Chief Financial Officer
NATIONSBANK OF TEXAS, N.A.,
Individually and as Administrative
Agent
/s/
By: Whitney L. Busse
Its: Vice President
TORONTO DOMINION (TEXAS), INC.,
Individually as a Lender
/s/
By: Darlene Riedeo
Its: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
/s/
By: Mark D. Thorshein
Its: Vice President
NATIONAL BANK OF ALASKA
/s/
By: Patricia Jelley Benz
Its: Vice President
100.269/81599