FOURTH AMENDMENT TO $50,000,000 AMENDED
AND RESTATED CREDIT AGREEMENT
FOURTH AMENDMENT TO $50,000,000 AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is dated as of the 18th day of January, 2000 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. (formerly NationsBank,
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, and by that certain Third Amendment to Amended and
Restated Credit Agreement dated as of April 13, 1999 (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 , and by that certain Third Amendment
to Amended and Restated Credit Agreement dated as of April 13, 1999, and as
further amended, restated or otherwise modified from time to time, the
"Revolver/Term Credit Agreement");
WHEREAS, the Borrower has requested that, among other things, certain
financial covenants 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.
(a) Definitions, Generally. Unless specifically defined or
redefined below, capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement.
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(b) Definition of "MCI". The definition of "MCI" in
alphabetical order in Article I of the Credit Agreement shall be
deleted in its entirety and the following definition substituted in
its stead:
"MCI" means MCI WORLDCOM, Inc.
SECTION 2. Amendment to Section 7.01(b). Section 7.01(b) in Article VII
of the Credit Agreement is hereby amended and restated in its entirety as
follows:
(b) Senior Leverage Ratio. At all times during the term
hereof, the Senior Leverage Ratio shall not be greater during the
following time periods than the ratio set forth opposite such time
periods:
Time Period Maximum Ratio
From the Closing Date through March 31, 1999 3.50 to 1.00
April 1, 1999 through December 31, 1999 3.00 to 1.00
January 1, 2000 through September 30, 2000 2.75 to 1.00
October 1, 2000 through December 31, 2000 2.50 to 1.00
January 1, 2001 and thereafter 2.00 to 1.00
SECTION 3. Amendment to Section 7.09(v). Section 7.09(v) in Article VII
of the Credit Agreement is hereby amended and restated in its entirety as
follows:
(v) loans and advances by Parents, the Borrower or a Restricted
Subsidiary to employees of Parents, the Borrower or a Restricted
Subsidiary made in ordinary course of business and consistent with past
practice of Parents, the Borrower or such Restricted Subsidiary, as the
case may be, provided, that such loans and advances made in cash do not
exceed in the aggregate $4,000,000 at any one time outstanding;
SECTION 4. Amendment to Section 7.10(c). Section 7.10(c) in Article VII
of the Credit Agreement is hereby amended and restated in its entirety as
follows:
(c) Investments in advances or loans in the ordinary course of business
to officers and employees, provided that the aggregate amount of all
such Investments made in cash do not exceed in the aggregate $4,000,000
outstanding at any one time,
SECTION 5. Waivers and Consents.
(a) Waiver of Breach of Section 7.18(b) of the Credit
Agreement. The Administrative Agent and the Lenders hereby waive any
Default or Event of Default arising solely as a result of the breach by
the Borrower of Section 7.18(b) of the Credit Agreement with respect to
the execution of that certain First Amendment to the Galaxy X
Transponder Purchase Agreement, dated as of the 12th day of August,
1999, by and between PANAMSAT Corporation and General Communications
Corp.
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(b) Consent with respect to Section 7.18(b) of the Credit
Agreement. The Administrative Agent and the Lenders hereby consent to
the execution of that certain Second Amendment to the Galaxy X
Transponder Purchase Agreement, by and between PANAMSAT Corporation
and General Communications Corp., such Second Amendment to be in
substantially similar form to that draft of such Second Amendment
attached to that certain letter from GCI to Mr. Xxxxxxx Xxxx, Bank of
America, dated November 22, 1999.
SECTION 6. Conditions Precedent. This Fourth 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
Fourth 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 Fourth Amendment and the
other Loan Papers, (ii) that there exists no Default or Event of
Default, and the execution, delivery and performance of this Fourth
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 Fourth Amendment and all Loan Papers and other documents and
instruments delivered or executed in connection with this Fourth
Amendment, (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 Fourth 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 shall have delivered to the Administrative
Agent and Lenders legal opinions from counsel to the Borrower and its
Restricted Subsidiaries regarding this Fourth Amendment and such other
matters as reasonably requested by Special Counsel, including, without
limitation, opinions regarding the waivers, consents and amendments in
connection with the Indenture and AUSP Credit Agreement, and the
related agreements; and
(c) 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 Fourth Amendment and
the transactions contemplated hereby.
SECTION 7. Representations and Warranties. The Borrower represents and
warrants to the Lenders and the Administrative Agent that (a) this Fourth
Amendment constitutes its legal, valid, and binding obligation, enforceable in
accordance with the terms hereof (subject as to enforcement
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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 8. 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 9. Counterparts. This Fourth 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 10. GOVERNING LAW. THIS FOURTH 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 11. 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 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.
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SECTION 12. 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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THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, this Fourth Amendment to Amended and Restated
Credit Agreement is executed as of the date first set forth above.
GCI HOLDINGS, INC.
/s/
By: Xxxx X. Xxxxxx
Its: Secretary/Treasurer
BANK OF AMERICA, N.A., (formerly
NationsBank, N.A.), Individually as a
Lender and as Administrative Agent
/s/
By: Xxxxxxx X. Xxxx
Its: Vice President
CREDIT LYONNAIS NEW YORK BRANCH, as
Documentation Agent and Individually as a
Lender
/s/
By: Xxxx X. Xxxxxxxxx
Its: Vice President
TD SECURITIES (USA), INC., as Syndication
Agent
/s/
By: Xxxxxxx X. Bandzierz
Its: Managing Director
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TORONTO DOMINION (TEXAS), INC.,
Individually as a Lender
/s/
By: Xxxx X. Xxxxxxxx
Its: Vice President
COBANK, ACB, Individually as a Lender
/s/
By: Xxxxxx X. Xxxxxxxx
Its: Assistant Corporate Secretary
By:
Its:
BANQUE PARIBAS, Individually as a Lender
/s/
By: Xxxxx X. Xxxxx
Its: Assistant Vice President
/s/
By: Xxxxxx X. Xxxxxx
Its: Managing Director
GENERAL ELECTRIC CAPITAL CORPORATION,
Individually as a Lender
/s/
By: Xxxx X. Xxxxx
Its: Manager-Operations
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UNION BANK OF CALIFORNIA, N.A.,
Individually as a Lender
By: Xxxxx X. Cuppru
Its: Associate Vice President
BANK OF HAWAII, Individually as a Lender
/s/
By: Xxxx Xxx
Its: Assistant Vice President
THE BANK OF NEW YORK, Individually as a
Lender
/s/
By: Xxxxx Xxxxxxxxx
Its: Vice President
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FLEET NATIONAL BANK, Individually as a
Lender
/s/
By: Xxxxxx X. Xxxxxxx
Its: Director
THE FUJI BANK, LIMITED, LOS ANGELES
AGENCY, Individually as a Lender
/s/
By: Xxxxxxxx Xxxxxx
Its: Senior Vice President
NATIONAL BANK OF ALASKA, Individually as a
Lender
/s/
By: Xxxxxxxx Xxxxxx Benz
Its: Vice President
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ALLFIRST BANK, Individually as a Lender
/s/
By: Xxxxxxxxxxx X. Xxxxx
Its: Vice President
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