EXHIBIT 10.5



 






EXHIBIT 10.5




AMENDMENT NO. 3




TO




CREDIT AGREEMENT




BY AND AMONG




CRICKET COMMUNICATIONS, INC.

(AS LENDER)




AND




ALASKA NATIVE BROADBAND 1 LICENSE, LLC

(AS BORROWER)




AND




ALASKA NATIVE BROADBAND 1, LLC

(AS GUARANTOR)




August 26, 2005





 









 








AMENDMENT NO. 3 TO CREDIT AGREEMENT




     This Amendment No. 3 to Credit Agreement is entered into as of August 26, 2005, by and among
Cricket Communications, Inc., a Delaware corporation (“Lender”), Alaska Native Broadband 1 License,
LLC, a Delaware limited liability company (“Borrower”), and Alaska Native Broadband 1, LLC, a
Delaware limited liability company (“Guarantor,” and together with Borrower, the “Loan Parties”).



RECITALS




     WHEREAS, Lender and each of the Loan Parties entered into that certain Credit Agreement dated
as of December 22, 2004, as amended by Amendment No. 1 to Credit Agreement dated as of January 26,
2005, as amended by Amendment No. 2 to Credit Agreement dated June 24, 2005 (as amended, the
“Credit Agreement”); and



     WHEREAS, Lender and each of the Loan Parties desire to amend the Credit Agreement as set forth
herein.



AGREEMENT




     NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto
agree as follows:



     Section 1. Section 2.3(e) of the Credit Agreement shall be deleted in its
entirety. and replaced with the following:



     “e. Intentionally omitted;”



     Section 2. Section 6.9(b) of the Credit Agreement shall be deleted in its
entirety and replaced with the following:




“b. purchase money financing of telecommunications equipment incurred by Borrower of
up to $4.0 million in the aggregate if the terms of such financing are more
favorable to Borrower than the terms of the Loans.”



     Section 3. Section 6.11 of the Credit Agreement shall be amended by inserting
the phrase “(other than with respect to Section 6.11(j))” after the word “given” in the
fourth line of the first paragraph of such Section. Section 6.11(i) of the Credit
Agreement shall be deleted in its entirety and replaced with the phrase “i. Intentionally
omitted.” Section 6.11(j) of the Credit Agreement shall be deleted in its entirety and
replaced with the following:



     “j. Amend or modify its certificate of formation or limited liability company agreement,
including the LLC Agreement, in any manner that materially affects Lender as a secured lender to
any of the Loan Parties.”



     Section 4. The following section shall be added as Section 6.15 to the Credit
Agreement:



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     6.15. Build-Out and Operation of the Licenses




a. The Loan Parties shall diligently pursue the Build-Out and operation of the ANB-1
License System with respect to each License.




b. In the event of a termination of the Management Agreement or any replacement
thereof, on or prior to the expiration of the applicable notice period for such
termination, and provided that, if Lender is the terminated manager, it has complied
with the transition provisions of Section 10.4 of the Management Agreement, Borrower
shall enter into a management agreement for the ANB-1 License Systems with another
Person who is capable of providing a quality of service substantially similar to
that provided by Lender under the Management Agreement.”



     Section 5. The following section shall be added as Section 6.16 to the Credit
Agreement:


6.16. Dividends, Distributions or Return of Capital





a. Each Loan Party agrees that it shall not, without the prior approval of Lender,
which approval may be withheld in Lender’s sole and absolute discretion, make any
dividend, distribution or return of capital, except that (i) Borrower may make
distributions to Guarantor (and Guarantor to ANB) to the extent that Section 8.5(d)
of the LLC Agreement provides for payments to ANB, (ii) Borrower may make
distributions to Guarantor (and Guarantor to its members) for tax distributions,
(iii) Borrower may make distributions to Guarantor for the payment of Guarantor’s
expenses to the extent consistent with Guarantor’s annual business plan and budget
under the LLC Agreement, and (iv) so long as no default shall have occurred and be
continuing or would result therefrom, Borrower may make distributions or returns of
capital to Guarantor (and Guarantor to its members), in each case if after giving
effect to such proposed distribution or return of capital (x) the aggregate amount
of all such distributions and returns of capital paid or made in any fiscal year
(without duplication) would be less than 50% of the Consolidated Net Income for the
fiscal year immediately preceding the fiscal year in which such distribution or
return of capital is paid or made and (y) the Consolidated Leverage Ratio would be
less than or equal to 2.00:1.00.”




b. For purposes of this Section 6.16, the following terms shall have the
following meanings:




     (i) “Consolidated Leverage Ratio” means, as of any date of determination, the
ratio of (a) Guarantor’s and Borrower’s consolidated indebtedness as of such date,
to (b) Guarantor’s and Borrower’s Consolidated EBITDA for the most recently
completed fiscal year.




     (ii) “Consolidated Net Income” means, at any date of determination, the net
income of Guarantor and Borrower (without giving effect to extraordinary



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gains or extraordinary losses) on a consolidated basis for the most recently
completed fiscal year.




     (iii) “Consolidated EBITDA” means, for any fiscal year, an amount equal to the
Consolidated Net Income of Guarantor and Borrower for such fiscal year plus (a) the
following to the extent deducted in calculating such Consolidated Net Income (without
duplication): (1) consolidated interest charges (including capitalized interest) for such
period, (2) all Federal, state, local and foreign income tax expense deducted in arriving at
Consolidated Net Income, (3) depreciation and amortization expense, (4) non-cash impairment
of assets (tangible and intangible) and related non-cash charges, (5) non-cash charges and
expenses related to equity-based compensation awards made by Guarantor or Borrower, and (6)
other non-recurring expenses reducing such Consolidated Net Income which do not represent a
cash item in such period or any future period and minus (b) the following to the
extent included in calculating such Consolidated Net Income (without duplication): (1)
Federal, state, local and foreign income tax credits of Guarantor or Borrower for such
period, (2) all non-cash gains arising in relation to any FCC licenses and (3) all non-cash
items increasing Consolidated Net Income for such period.



     Section 6. Section 7.1(h) of the Credit Agreement shall be deleted in its
entirety and replaced with the following:


“h. Intentionally omitted;”




     Section 7. Except as expressly amended hereby, the Credit Agreement remains in full
force and effect in accordance with its terms.



[Signatures Follow on Next Page]




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     IN WITNESS WHEREOF, the parties hereto have signed this Amendment No. 3 to Credit Agreement,
or have caused this Amendment No. 3 to Credit Agreement to be signed in their respective names by
an officer, hereunto duly authorized, on the date first written above.



	 	 	 
	CRICKET COMMUNICATIONS, INC.

	 	ALASKA NATIVE BROADBAND 1
	 

	 	LICENSE, LLC
	 
	 	 
	 

	 	By Alaska Native Broadband 1, LLC
	By:
/s/ Robert J. Irving, Jr.

	 	   Its sole member
	Name: Robert J. Irving, Jr.

	 	 
	Title: Secretary

	 	By Alaska Native Broadband, LLC
	 

	 	   Its Manager
	 
	 	 
	 

	 	By ASRC Wireless Services, Inc.,
	 

	 	   Its Manager
	 
	 	 
	 

	 	By: /s/ Conrad Bagne               
	 

	 	Name: Conrad Bagne
	 

	 	Title: President
	 
	 	 
	 

	 	ALASKA NATIVE BROADBAND 1, LLC
	 
	 	 
	 

	 	By Alaska Native Broadband, LLC
	 

	 	   Its Manager
	 
	 	 
	 

	 	By ASRC Wireless Services, Inc.,
	 

	 	   Its Manager
	 
	 	 
	 

	 	By:/s/ Conrad Bagne               
	 

	 	Name: Conrad Bagne
	 

	 	Title: President







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