FIFTH
AMENDMENT TO THE
AMENDED
AND 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.
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Borrowers: |
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GCI HOLDINGS,
INC. |
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GCI
COMMUNICATION CORP |
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GCI FIBER
COMMUNICATION CO., INC. |
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each an
Alaska Corporation |
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By: /s/
Bruce Broquet |
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Name:
Bruce L. Broquet |
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Title:
Vice President, Finance |
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GCI
CABLE, INC. |
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an Alaska
Corporation |
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By: /s/
Robert W. Ormberg |
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Name: Robert
W. Ormberg |
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Title: Vice
President, Content and Production Management |
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POTTER
VIEW DEVELOPMENT CO., INC. |
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an Alaska
Corporation |
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By: /s/ David
Morris |
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Name: David
Morris |
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Title:
President |
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ALASKA
UNITED FIBER SYSTEM PARTNERSHIP, |
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an Alaska
Partnership |
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By: GCI
COMMUNICATION CORP., |
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its
general partner |
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By: /s/ Bruce
L. Broquet |
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Name: Bruce
L. Broquet |
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Title: Vice
President, Finance |
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