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 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.
(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 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 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 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.
SECTION 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.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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.
By:
Its:
NATIONSBANK OF TEXAS, N.A.,
Individually and as Administrative Agent
By: Xxxxxxx X. Xxxxx
Its: Vice President
TORONTO DOMINION (TEXAS), INC., Individually as a
Lender
By:
Its:
CREDIT LYONNAIS NEW YORK BRANCH
By:
Its:
NATIONAL BANK OF ALASKA
By:
Its:
