EXHIBIT 10.1
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EXECUTION COPY
AMENDMENT NO.1, dated as of October 19, 1999
(this "Amendment"), to the Credit Agreement dated
as of May 14, 1999 (the "Credit Agreement"), among
ALEC HOLDINGS, INC., a Delaware corporation
("Holdings"), ALASKA COMMUNICATIONS SYSTEMS
HOLDINGS, INC., a Delaware corporation (the
"Borrower"), the lenders party thereto, 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
agree to amend certain provisions of the Credit Agreement as set forth herein.
C. The Required Lenders are willing so to amend 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. Amendments. (a) Section 1.01 of the Credit Agreement is
hereby amended by deleting the text: "or with the proceeds of the sale of equity
by, or the contribution of equity to, Holdings, the Borrower or any Subsidiary
(other than to or by Holdings, the Borrower or any Subsidiary)" in paragraph (e)
of the definition of the term "Excess Cash Flow".
(b) Section 6.01 of the Credit Agreement is hereby amended by:
(i) substituting the amount "$40,000,000" for the amount "$20,000,000"
in clause (vi) of paragraph (a) thereof; and
(ii) substituting the amount "$25,000,000" for the amount
"$10,000,000" in clause (vii) of paragraph (a) thereof.
(c) Section 6.04 of the Credit Agreement is hereby amended by:
(i) substituting the amount "$200,000,000" for the amount
"$100,000,000" in paragraph (i) thereof;
(ii) replacing the second parenthetical at the end of paragraph (i)
thereof with the following parenthetical: "(which amount will be deemed (i)
to include the amount of any Indebtedness acquired or assumed in connection
with Permitted Acquisitions and (ii) not to include (A) the amount of (1)
Net Proceeds
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of the issuance of Equity Interests of Holdings (other than Disqualified
Stock) and (2) common equity contributions made by Sponsor to Holdings, in
the case of clauses (1) and (2) that are contributed by Holdings to the
Borrower as common equity and expended to effect a Permitted Acquisition
and (B) Permitted Acquisitions paid for (in whole or in part and, if in
part, to the extent so paid for) with the issuance of Equity Interests of
Holdings (other than Disqualified Stock)"; and
(iii) substituting the amount "$15,000,000" for the amount
"$5,000,000" in clause (o) thereof.
(d) Section 6.08 of the Credit Agreement is hereby amended by:
(i) inserting the following text immediately after the text "and to
the extent necessary" in clause (viii) of paragraph (a) thereof: "(or to
the extent (A) Holdings is permitted by the terms of this Agreement and the
Holdings Indenture to make a cash interest payment in respect of the
Holdings Discount Debentures and (B) Holdings uses such dividends (net of
any Taxes payable by Holdings in respect of such dividends) to make such
cash interest payment)";
(ii) substituting a semicolon for the word "and" immediately before
clause (viii) in paragraph (a) of such Section;
(iii) inserting the following new clause after clause (viii) in
paragraph (a) of such Section immediately before the period:
and (ix) the Borrower may pay dividends to Holdings to the extent
Holdings uses such dividends (net of any Taxes payable by Holdings in
respect of such dividends) solely to fund the repurchase, redemption,
retirement or cancelation of Holdings Discount Debentures permitted by
clause (vi) of paragraph (b) below
(iv) inserting the following new clause after clause (v) in paragraph
(b) of such Section immediately before the period:
(vi) after October 19, 1999, payment for the repurchase, redemption,
retirement or cancelation of (i) Holdings Discount Debentures or (ii)
Senior Subordinated Notes, provided that (i) no Default has occurred
and is continuing at the time of such payment, (ii) the aggregate
amount of all payments made pursuant to this clause (vi) does not
exceed $40,000,000, (iii) such payment is made in accordance with the
optional redemption provisions of the Holdings Discount Indenture or
the Subordinated Debt Documents, as applicable, in each case as in
effect on May 14, 1999, or on other terms not less favorable to the
Lenders and (iv) such payment does not violate any term or condition
of the Holdings Discount Indenture or the Subordinated Debt Documents,
in each case as in effect on May 14, 1999 (after giving effect to the
amendment to the Holdings Discount Debenture contemplated by Section
6.11)
(v) substituting the following clause for clause (ii) in paragraph (b)
of such Section:
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(ii) payment of (A) regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness, other than
payments in respect of the Senior Subordinated Notes prohibited by the
subordination provisions thereof and (B) in any fiscal year, interest
accrued during such fiscal year in respect of the Holdings Discount
Debentures.
(e) Section 6.11 of the Credit Agreement is hereby amended by
substituting the following clause for clause (c) of such Section: "the Holdings
Discount Indenture, except to the extent such indenture is amended solely to
permit (but not require) the cash payment of interest on the Holdings Discount
Debentures prior to May 14, 2004, or"
(f) Section 6.14 of the Credit Agreement is hereby amended by:
(i) substituting the amount "$75,000,000" for the amount "$65,000,000"
in clause (i)(A) of paragraph (a) thereof; and
(ii) replacing the text contained in clause (i)(B) of paragraph (a)
thereof with the following text: "ending after December 31, 1999, and on or
before December 31, 2000, to exceed $100,000,000 and (C) ending after
December 31, 2000, to exceed 110% of the amount permitted by this clause
(i) for the immediately preceding fiscal year,".
SECTION 2. 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) On the date hereof and immediately after giving effect to this
Amendment, no Default shall have occurred and be continuing.
SECTION 3. Conditions to Effectiveness. This Amendment shall become
effective as of the date first above written when (a) Holdings shall have
received gross proceeds of not less than $140,000,000 from an IPO and shall have
contributed the Net Proceeds from such IPO (other than any such Net Proceeds
applied to repurchase, redeem, retire or cancel Holdings Discount Debentures in
accordance with the Credit Agreement and the Holdings Discount Indenture) to the
Borrower as common equity and (b) the Administrative Agent shall have received
counterparts of this Amendment that, when taken together, bear the signatures of
(i) Holdings, (ii) the Borrower and (iii) the Required Lenders, provided that
the representations and warranties set forth in the Loan Documents are true and
correct as of the date of the later to occur of clauses (a) and (b)
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above, except to the extent such representations and warranties expressly relate
to an earlier date.
SECTION 4. Credit Agreement. Except as specifically amended 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
modified hereby. This Amendment shall be a Loan Document for all purposes.
SECTION 5. APPLICABLE LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 6. 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 7. 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.
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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.
ALEC HOLDINGS, INC.,
by /s/ Michael E. Holmstrom
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Name: Michael E. Holmstrom
Title: Senior Vice President &
Chief Financial Officer
ALASKA COMMUNICATIONS SYSTEMS
HOLDINGS, INC.,
by /s/ Michael E. Holmstrom
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Name: Michael E. Holmstrom
Title: Senior Vice President &
Chief Financial Officer
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
by /s/ Ed DeForest
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Name: Ed DeForest
Title: Vice President
CANADIAN IMPERIAL BANK OF
COMMERCE,
as Syndication Agent,
by /s/ Laura Horn
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Name: Laura Horn
Title: Executive Director
CREDIT SUISSE FIRST BOSTON
CORPORATION, individually and
as Documentation Agent,
by /s/ Jeffrey B. Ulmer
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Name: Jeffrey B. Ulmer
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution CREDIT SUISSE FIRST BOSTON
by /s/ Jeffrey B. Ulmer
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Name: Jeffrey B. Ulmer
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution CIBC INC.
by /s/ Laura Horn
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Name: Laura Horn
Title: Executive Director
CIBC World Markets Corp. as Agent
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution INDUSTRIAL BANK OF JAPAN
by /s/ William Kennedy
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Name: William Kennedy
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution
ARES LEVERAGED INVESTMENT FUND, L.P.
BY ARES MANAGEMENT, L.P., its General Partner
by /s/ Jeffrey Moore
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Name: Jeffrey Moore
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution
ARES LEVERAGED INVESTMENT FUND II, L.P.
BY ARES MANAGEMENT II, L.P., its General Partner
by /s/ Jeffrey Moore
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Name: Jeffrey Moore
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution SRF TRADING INC.
by /s/ Kelley C. Walker
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Name: Kelley C. Walker
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution FIRST NATIONAL BANK OF ANCHORAGE
by /s/ Richard C. Enberg
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Name: Richard C. Enberg
Title: Executive Vice President
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution FIRST UNION NATIONAL BANK
by /s/ Thomas M. Finke
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Name: Thomas M. Finke
Title: Senior Vice President
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution ELC (CAYMAN) LTD. 1999-II
by /s/ Thomas M. Finke
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Name: Thomas M. Finke
Title: Managing Director
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution ELC (CAYMAN) LTD. CDO SERIES 1999-I
by /s/ Thomas M. Finke
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Name: Thomas M. Finke
Title: Managing Director
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution KVH IV LLC
by /s/ Virginia Conway
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Name: Virginia Conway
Title: Authorized Agent
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution KVH III LLC
by /s/ Virginia Conway
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Name: Virginia Conway
Title: Authorized Agent
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution KVH CRESCENT-3 LLC
by /s/ Virginia Conway
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Name: Virginia Conway
Title: Authorized Agent
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution KVH CRESCENT-2 LLC
by /s/ Virginia Conway
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Name: Virginia Conway
Title: Authorized Agent
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution KVH CRESCENT LLC
by /s/ Virginia Conway
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Name: Virginia Conway
Title: Authorized Agent
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution KVH STERLING LLC
by /s/ Virginia Conway
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Name: Virginia Conway
Title: Authorized Agent
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution METROPOLITAN LIFE INSURANCE COMPANY
by /s/ James R. Dingler
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Name: James R. Dingler
Title: Director
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution RURAL TELEPHONE FINANCE COOPERATION
by /s/ Kenneth A. Fried
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Name: Kenneth A. Fried
Title: Assistant Secretary, Treasurer
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
STANFIELD CLO LTD. by
Stanfield Capital Partners LLC, as Collateral Manager
by /s/ Gregory L. Smith
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Name: Gregory L. Smith
Title: Partner
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
STEIN ROE & FARNHAM CLO I LTD.,
by Stein Roe & Farnham Incorporated,
as Portfolio Manager
by /s/ Brian W. Good
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Name: Brian W. Good
Title: Vice President & Portfolio Manager
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution
STEIN ROE FLOATING RATE LIMITED LIABLITY
COMPANY
by /s/ Brian W. Good
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Name: Brian W. Good
Title: Vice President,
Stein Roe & Farnham Incorporated,
as Advisor to the Stein Roe Floating Rate
Limited Liability Company
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
OCTOBER 19, 1999
To Approve the Amendment:
Name of Institution U.S. BANK NATIONAL ASSOCIATION
by /s/ Thomas G. Gunder
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Name: Thomas G. Gunder
Title: Vice President