FIFTHAMENDMENT TO THE AMENDEDAND RESTATED CREDIT AGREEMENT

 

 

 

 

THIS FIFTH AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), dated as of October 17, 2008, is made by and among GCI HOLDINGS, INC., an Alaska corporation, GCI COMMUNICATION CORP., an Alaska corporation, GCI CABLE, INC., an Alaska corporation, GCI FIBER COMMUNICATION CO., INC., an Alaska corporation, POTTER VIEW DEVELOPMENT CO., INC., an Alaska corporation, ALASKA UNITED FIBER SYSTEM PARTNERSHIP, an Alaska partnership, ALASKA WIRELESS COMMUNICATIONS, LLC, an Alaska limited liability company, ALASKA DIGITEL, LLC, an Alaska limited liability company and FIRE LAKE PARTNERS, LLC, an Alaska limited liability company (each individually, a “Borrower” and, collectively, the “Borrowers”), GCI, INC., an Alaska corporation (“Guarantor”), the banks, financial institutions, and other lenders party hereto (the “Lenders”), and CALYON NEW YORK BRANCH, as administrative agent (the “Administrative Agent” and, in its capacity hereunder as arranger, the “Arranger”).  All capitalized terms used herein and not otherwise expressly defined herein shall have the respective meanings given to such terms in the Credit Agreement (as defined below).

 

WHEREAS, the Borrowers, Administrative Agent, Initial Lenders and the other parties thereto entered into that certain Amended and Restated Credit Agreement, dated as of August 31, 2005 (as amended, supplemented or modified from time to time, the “Credit Agreement”);

 

WHEREAS, the Borrowers have requested that the Lenders and the Administrative Agent agree to an amendment to Section 7.5(e) of the Credit Agreement increasing the aggregate amount of Capital Expenditures permitted during the fiscal year ending December 31, 2008, from $225,000,000 to $240,000,000; and

 

WHEREAS, the Lenders and Administrative Agent are willing to agree to such amendment more fully set forth herein, subject to the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the foregoing premises, and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 

1. Amendment to the Credit Agreement.  Section 7.5(e) of the Credit Agreement is hereby amended by deleting the Maximum Capital Expenditure Amount for the fiscal year ended December 31, 2008, of $225,000,000, and, in lieu thereof, inserting a Maximum Capital Expenditure Amount for the fiscal year ended December 31, 2008, of $240,000,000.

 

2. Effectiveness.  This Amendment shall become effective upon receipt by the Administrative Agent of originally executed counterparts hereof by each of the Borrowers, Guarantor and Majority Lenders.

 

3. Acknowledgement and Consent.  Guarantor hereby consents to the terms of this Agreement and further hereby confirms and agrees that, notwithstanding the effectiveness of this Agreement, the obligations of Guarantor under each of the Loan Documents to which Guarantor is a party shall not be impaired and each of the Loan Documents to which Guarantor is a party is, and shall continue to be, in full force and effect and is hereby confirmed and ratified in all respects.

 

4. Representations and Warranties.  To induce the Administrative Agent and the Lenders to enter into this Amendment, each of the Borrowers and their Subsidiaries that are Loan Parties does hereby represent and warrant that as of the date hereof:

 

(a) there exists no Default or Event of Default under the Credit Agreement or any of the other Loan Documents;

 

(b) each Borrower has the power and authority and has taken all the necessary action to authorize the execution, delivery and performance of this Amendment;

 

(c) this Amendment has been duly executed and delivered by the duly authorized officers of the Borrowers, and this Amendment and the Credit Agreement, as amended hereby, are the legal, valid and binding obligation of each Borrower enforceable against each Borrower in accordance with their terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors’ rights generally and by general principles of equity; and

 

(d) the execution, delivery and performance of this Amendment in accordance with the terms herein do not and will not, with the passage of time, the giving of notice or otherwise: (i) require any consent, approval, authorization, permit or license, governmental or otherwise which has not already been obtained or is not in full force and effect or violate any applicable law relating to any Borrower; (ii) conflict with, result in a breach of or constitute a default under (A) the articles or certificate of incorporation or bylaws, operating agreement or the partnership agreement, as the case may be, of any Borrower, (B) any indenture, material agreement or other material instrument to which any Borrower is a party or by which any of its properties may be bound, or (C) any material Licenses; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Borrowers other than Permitted Liens.

 

5. General.   This Amendment:

 

(a) shall be deemed to be a Loan Document;

 

(b) embodies the entire understanding and agreement among the parties hereto and thereto with respect to the subject matter hereof and thereof and supersedes all prior agreements, understandings and inducements, whether express or implied, oral or written; and

 

(c) may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart by electronic transmission shall be equally effective as delivery of a manually executed counterpart to this Amendment.

 

6. No Course of Dealing or Performance.  Each of the Borrowers acknowledges and agrees that the execution, delivery and performance of this Amendment by the Administrative Agent and each of the Lenders does not and shall not create (nor shall Borrowers rely upon the existence of or claim or assert that there exists) any obligation of any of the Lenders and the Administrative Agent to consider or agree to any other amendment of or consent with respect to any of the Loan Documents, or any other instrument or agreement to which the Administrative Agent or any Lender is a party (collectively an “Amendment or Consent”), and in the event that the Administrative Agent or any of the Lenders subsequently agree to consider any requested Amendment or Consent, neither the existence of this Amendment, nor any other conduct of the Administrative Agent or any of the Lenders related hereto, shall be of any force or effect on the Administrative Agent’s or any of the Lenders’ consideration or decision with respect to any such requested Amendment or Consent, and the Administrative Agent and the Lenders shall not have any obligation whatsoever to consider or agree to any such Amendment or Consent.

 

7. Fees and Expenses.  The Borrowers and their Subsidiaries hereby acknowledge and agree that all fees and expenses as described in Section 11.2 of the Credit Agreement incurred by the Administrative Agent, including, without limitation, those related to the preparation, arrangement, negotiation, documentation, syndication, closing and administration of the transactions contemplated by this Amendment, whether or not such transactions are consummated, shall be for the account of the Borrowers.

 

8. Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties hereto.

 

9. Governing Law.  THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN NEW YORK.

 

 

Signatures appear on the following pages.

    IN WITNESS WHEREOF, the parties here to have caused this Amendment to be executed by their respective duly authorized representatives as of the date first written above.

 

 

 

 

		By: GCI HOLDINGS, INC.,
		its general partner
		By: /s/ Bruce Broquet
		Name: Bruce L. Broquet
		Title: Vice President, Finance

		ALASKA WIRELESS COMMUNICATIONS, LLC
		an Alaska Limited Liability Company
		By: GCI COMMUNICATION CORP.,
		its sole Member and Manager
		By: /s/ Bruce Broquet
		Name: Bruce L. Broquet.
		Title: Vice President, Finance

 

 

		UNION BANK OF CALIFORNIA N.A.,
		as Lender
		By: /s/ David Hill
		Name: David Hill
		Title: Assistant Vice President

 

		COBANK, ACB,
		as Lender
		By: /s/ Tod Koeruer
		Name: Tod Koeruer
		Title: Managing Director

 

		U.S. BANK NATIONAL ASSOCIATION
		as Lender
		By: /s/ John T. Pearson
		Name: John T. Pearson
		Title: Vice President

 

		ROYAL BANK OF CANADA
		as Lender
		By: /s/ Mutsafa Topiwalla
		Name: Mutsafa Topiwalla
		Title: Authorized Signatory

 

		CIT BANK
		as Lender
		By: /s/ Benjamin Haslam
		Name: Benjamin Haslam
		Title: Authorized Signatory

 

		FRANKLIN
		as Lender
		By: /s/ Tyler Chan
		Name: Tyler Chan
		Title: Vice President

 

		LANDMARK II CDO LIMITED
		By: Aladdin Capital Management, as Manager
		By: /s/ James Bragg
		Name: James Bragg
		Title: Director

 

 

 

 

 

 

		KATONAH V, Ltd
		as Lender
		By: /s/ Thomas Ewald
		Name: Thomas Ewald
		Title: Authorized Signatory