EXHIBIT 10.12
EXECUTION COPY
AMENDMENT AND WAIVER dated as of June 27, 2002 (this
"Amendment"), to the Credit Agreement dated as of May 14, 1999, as
amended (the "Credit Agreement"), among ALASKA COMMUNICATIONS SYSTEMS
GROUP, INC., a Delaware corporation ("Holdings"), ALASKA COMMUNICATIONS
SYSTEMS HOLDINGS, INC., a Delaware corporation (the "Borrower"), the
lenders party thereto, JPMORGAN CHASE BANK (formerly known as THE CHASE
MANHATTAN BANK), a New York banking corporation, as Administrative
Agent, CANADIAN IMPERIAL BANK OF COMMERCE, as Syndication Agent, and
CREDIT SUISSE FIRST BOSTON CORPORATION, as Documentation Agent.
A. The Lenders have extended credit to the Borrower, and have agreed to
extend credit to the Borrower, in each case pursuant to the terms and subject to
the conditions set forth in the Credit Agreement.
B. Holdings and the Borrower have requested that the Required Lenders
amend and waive certain provisions of the Credit Agreement as set forth herein.
C. The Required Lenders are willing so to amend and waive the Credit
Agreement pursuant to the terms and subject to the conditions set forth herein.
D. Capitalized terms used but not defined herein have the meanings
assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Waiver. The Required Lenders hereby waive compliance with
Sections 6.04 and 6.08 of the Credit Agreement to the extent necessary to permit
(a) any purchases by Holdings on or after the date on which this Amendment
becomes effective of common Equity Interests issued by Holdings and (b) the
payment of dividends or the making of any loans or other transfers by the
Borrower to Holdings on or after the date on which this Amendment becomes
effective to the extent necessary to provide Holdings with the funds necessary
to effect any such purchases, provided that (i) the aggregate consideration,
fees and expenses paid by Holdings in connection with such purchases shall not
exceed $15,000,000, (ii) no Default shall exist at the time of any such purchase
and (iii) all such purchases shall be made using existing cash of Holdings, the
Borrower or any Subsidiary.
SECTION 2. Amendments. Section 6.08(b) of the Credit Agreement is hereby
amended by:
(a) replacing the period at the end of clause (v) thereof with the text
"; and" and
(b) inserting the following text after clause (v) thereof:
"(vi) payment to any Person of Indebtedness of the Borrower or any
Subsidiary (other than a License Subsidiary) that is incurred to finance the
purchase of equipment or other fixed assets and is secured by such equipment or
other fixed assets, provided that (A) the aggregate amount of all payments made
pursuant to this clause (vi) does not exceed (1) $2,500,000 during any fiscal
year of the Borrower and (2) $5,000,000 during the term of this Agreement and
(B) all such payments shall be made using existing cash of the Borrower or any
Subsidiary (other than a License Subsidiary)."
SECTION 3. Representations and Warranties. Each of Holdings and the
Borrower represents and warrants to the Administrative Agent and to each of the
Lenders that:
(a) This Amendment has been duly authorized, executed and delivered by
each of Holdings and the Borrower and constitutes a legal, valid and binding
obligation of Holdings and the Borrower, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
(b) The representations and warranties of Holdings and the Borrower set
forth in the Loan Documents are true and correct on and as of the date hereof,
except to the extent such representations and warranties expressly relate to an
earlier date, in which case such representations and warranties are true and
correct as of such earlier date.
(c) Immediately after giving effect to this Amendment, no Default shall
have occurred and be continuing.
SECTION 4. Conditions to Effectiveness. This Amendment shall become
effective as of the date first above written when the Administrative Agent shall
have received (a) counterparts of this Amendment that, when taken together, bear
the signatures of (i) Holdings, (ii) the Borrower and (iii) the Required Lenders
and (b) the amendment fees required to be paid by the Borrower pursuant to
Section 6 hereof, provided that the representations and warranties set forth in
the Loan Documents are true and correct as of the date that the last of such
counterparts is received, except to the extent such representations and
warranties expressly relate to an earlier date.
SECTION 5. Credit Agreement. Except as specifically amended and waived
hereby, the Credit Agreement shall continue in full force and effect in
accordance with the provisions thereof as in existence on the date hereof. After
the date hereof, any reference to the Credit Agreement shall mean the Credit
Agreement as amended and waived hereby. This Amendment shall be a Loan Document
for all purposes.
SECTION 6. Amendment Fee. In consideration of the agreements of the
Lenders contained in this Amendment, the Borrower agrees to pay promptly to the
Administrative Agent, for the account of each Lender that delivers an executed
counterpart of this Amendment at or prior to 5:00 p.m., New York time, on June
27, 2002, an amendment fee in an amount equal to 0.05% of the sum of such
Lender's Revolving Commitment and outstanding Term Loans, provided that such fee
shall not be payable unless and until all conditions to the effectiveness of
this Amendment as provided in Section 4 hereof (other than payment of such
amendment fee) shall have been satisfied.
SECTION 7. APPLICABLE LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 8. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one agreement. Delivery of an executed
signature page to this Amendment by facsimile transmission shall be effective as
delivery of a manually signed counterpart of this Amendment.
SECTION 9. Expenses. The Borrower agrees to reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Amendment,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Moore, counsel for the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first written above.
ALASKA COMMUNICATIONS SYSTEMS GROUP, INC.,
by /s/ Kevin P. Hemenway
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Name: Kevin P. Hemenway
Title: Senior Vice President,
Chief Financial Officer and Treasurer
ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC.,
by /s/ Kevin P. Hemenway
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Name: Kevin P. Hemenway
Title: Senior Vice President,
Chief Financial Officer and Treasurer
JPMORGAN CHASE BANK (formerly known as
THE CHASE MANHATTAN BANK), individually and as
Administrative Agent,
by /s/ John Kowalczuk
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Name: John Kowalczuk
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
as Syndication Agent,
by /s/ Joan S. Griffin
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Name: Joan S. Griffin
Title: Executive Director
CREDIT SUISSE FIRST BOSTON CORPORATION,
individually and as Documentation Agent,
by /s/ Paul J. Corona
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Name: Paul J. Corona
Title: Director
by /s/ Bill O'Daly
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Name: Bill O'Daly
Title: Director
SIGNATURE PAGE TO
AMENDMENT AND WAIVER
DATED AS OF
JUNE 27, 2002
TO APPROVE THE AMENDMENT:
Name of Institution:
Allstate Life Insurance Company
By: /s/ Jerry D. Zinkula
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Name: Jerry D. Zinkula
Title: Authorized Signatory
By: /s/ Patricia W. Wilson
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Name: Patricia W. Wilson
Title: Authorized Signatory
Name of Institution: ARES Leveraged Investment Fund II, L.P
By: ARES Management II, L.P
General Partner
By: /s/ Jeff Moore
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Name: Jeff Moore
Title: Vice President
Name of Institution: ARES III CLO Ltd.
By: ARES CLO Management LLC
By: /s/ Jeff Moore
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Name: Jeff Moore
Title: Vice President
Name of Institution: ARES IV CLO Ltd.
By: ARES CLO Management IV, LP,
Investment Manager
By: ARES CLO GP IV, LLC,
Its Managing Member
By: /s/ Jeff Moore
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Name: Jeff Moore
Title: Vice President
Name of Institution: ARES V CLO Ltd.
By: ARES CLO Management V, LP,
Investment Manager
By: ARES CLO GP V, LLC,
Its Managing Member
By: /s/ Jeff Moore
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Name: Jeff Moore
Title: Vice President
Name of Institution: ARES VI CLO Ltd.
By: ARES Management VI, L.P.
Investment Manager
By: ARES CLO GP VI, LLC,
Its Managing Member
By: /s/ Jeff Moore
Name: Jeff Moore
Title: Vice President
Name of Institution: Capitva II Finance Ltd.
by /s/ David Dyer
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Name: David Dyer
Title: Director
Name of Institution: CoBank, ACB
by /s/ Aaron Dyer
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Name: Aaron Dyer
Title: Assistant Vice President
Name of Institution: C-Squared CDO Ltd.
By: TCW Advisors Inc., as its
Portfolio Manager
by /s/ Mark L. Gold
Name: Mark L. Gold
Title: Managing Director
Name of Institution: ELC (Cayman) Ltd. 1999-II
By: David L. Babson & Company Inc.
as Collateral Manager
by /s/ Adrienne Musgnug
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Name: Adrienne Musgnug
Title: Managing Director
Name of Institution: ELC (Cayman) Ltd. CDO Series 1999-I
By: David L. Babson & Company Inc.
as Collateral Manager
by /s/ Adrienne Musgnug
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Name: Adrienne Musgnug
Title: Managing Director
Name of Institution: Franklin Floating Rate Trust
by /s/ Richard D'Addario
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Name: Richard D'Addario
Title:Vice President
Name of Institution: Gallatin Funding I Ltd.
By: Bear Stearns Asset Management Inc.
as its Collateral Manager
by /s/ Justin Driscoll
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Name: Justin Driscoll
Title: Managing Director
Name of Institution: Grayston CLO 2002-01 Ltd.
By: Bear Stearns Asset Management Inc.
as its Collateral Manager
by /s/ Justin Driscoll
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Name: Justin Driscoll
Title: Managing Director
Name of Institution: KZH Crescent LLC
by /s/ Joyce Fraser-Bryant
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Name: Joyce Fraser-Bryant
Title: Authorized Agent
Name of Institution: KZH Crescent 2 LLC
by /s/ Joyce Fraser-Bryant
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Name: Joyce Fraser-Bryant
Title: Authorized Agent
Name of Institution: KZH Crescent 3 LLC
by /s/ Joyce Fraser-Bryant
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Name: Joyce Fraser-Bryant
Title: Authorized Agent
Name of Institution: National City Bank
by /s/ David Denlinger
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Name: David Denlinger
Title: Assistant Vice President
Name of Institution: National Cooperative Services Corporation
by /s/ Kenneth A. Fried
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Name: Kenneth A. Fried
Title: Associate Vice President
Name of Institution: Sequils I, Ltd
By: TCW Advisors Inc., as its
Collateral Manager
by /s/ Mark L. Gold
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Name: Mark L. Gold
Title: Managing Director
by /s/ William Brennan
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Name: William Brennan
Title: Vice President
Name of Institution: Sequils IV, Ltd
By: TCW Advisors Inc., as its
Collateral Manager
by /s/ Mark L. Gold
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Name: Mark L. Gold
Title: Managing Director
by /s/ William Brennan
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Name: William Brennan
Title: Vice President
Name of Institution: TCW Leveraged Income Trust IV, L.P.
By: TCW (LINC IV), L.L.C.,
As General Partner
By: TCW Asset Management Company
As managing member of the General Partner
by /s/ Mark L. Gold
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Name: Mark L. Gold
Title: Managing Director
by /s/ William Brennan
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Name: William Brennan
Title: Vice President
Name of Institution: TCW Select Loan Fund, Limited
By: TCW Advisors Inc., as its
Collateral Manager
by /s/ Mark L. Gold
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Name: Mark L. Gold
Title: Managing Director
by /s/ William Brennan
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Name: William Brennan
Title: Vice President
Name of Institution: United of Omaha Life Insurance Company
By: TCW Asset Management Company,
Its Investment Advisor
by /s/ Mark L. Gold
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Name: Mark L. Gold
Title: Managing Director
by /s/ William Brennan
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Name: William Brennan
Title: Vice President
Name of Institution: U.S. Bank National Association
by /s/ Thomas G. Gunder
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Name: Thomas G. Gunder
Title: Vice President
Name of Institution: Webster Bank
by /s/ Elisabeth V. Piker
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Name: Elisabeth V. Piker
Title: Vice President
Name of Institution: Wells Fargo Bank Alaska, N.A.
by /s/ Anthony Alvarado
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Name: Anthony Alvarado
Title: Vice President