EXHIBIT 10.24
ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC.
Issuer
GUARANTORS
and
THE BANK OF NEW YORK
Trustee
SUPPLEMENTAL INDENTURE
Dated as of July 15, 2005
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9 7/8% SENIOR NOTES DUE 2011
Supplemental Indenture July 15, 2005
THIS SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), dated as
of July 15, 2005, is made by and among ALASKA COMMUNICATIONS SYSTEMS HOLDINGS,
INC., a Delaware corporation, (the "Issuer"), ALASKA COMMUNICATIONS SYSTEMS
GROUP, INC., ACS OF THE NORTHLAND, INC., ACS OF ALASKA, INC., ACS OF FAIRBANKS,
INC., ACS OF ANCHORAGE, INC., ACS WIRELESS, INC., ACS INTERNET, INC., ACS
MESSAGING, INC., ACS INFOSOURCE, INC., ACS OF ALASKA LICENSE SUB, INC., ACS OF
THE NORTHLAND LICENSE SUB, INC., ACS OF FAIRBANKS LICENSE SUB, INC., ACS OF
ANCHORAGE LICENSE SUB, INC., ACS WIRELESS LICENSE SUB, INC., ACS LONG DISTANCE
LICENSE SUB, INC., ACS TELEVISION LICENSE SUB, INC., ACS SERVICES, INC. AND ACS
LONG DISTANCE, INC. (collectively, the "Guarantors") and THE BANK OF NEW YORK,
as Trustee (the "Trustee"), under the Indenture dated as of August 26, 2003 (as
amended through the date hereof, the "Indenture"). Capitalized terms used herein
and not otherwise defined shall have the meaning assigned to them in the
Indenture.
WITNESSETH:
WHEREAS, the Issuer has issued its 9 7/8% Senior Notes Due 2011 (the
"Notes") pursuant to the Indenture;
WHEREAS, pursuant to Section 9.01(i) of the Indenture, the Issuer,
the Guarantors and the Trustee may amend the Indenture without notice to or
consent of any Holder to oure any ambiguity, omission, detect or inconsistency;
WHEREAS, the Issuer, the Guarantors and the Trustee desire to amend
the Indenture to cure certain ambiguities, omissions, defects and
inconsistencies;
WHEREAS, the Issuer has heretofore delivered or is delivering
contemporaneously herewith to the Trustee (i) a copy of resolutions of the Board
of Directors of the Issuer, certified by the Secretary or an Assistant Secretary
of the Issuer, authorizing the execution, delivery and performance of this
Supplemental Indenture, (ii) a copy of resolutions of the Boards of Directors of
each of the Guarantors, certified by the Secretary or an Assistant Secretary of
each of the Guarantors, authorizing the execution, delivery and performance of
this Supplemental Indenture, and (iii) an Officers' Certificate or an Opinion of
Counsel with and to the effect set forth in Section 7.02(b) of the Indenture;
WHEREAS, all conditions necessary to authorize the execution and
delivery of this Supplemental Indenture and to make this Supplemental Indenture
valid and binding have been complied with or have been done or performed; and
NOW, THEREFORE, in consideration of the foregoing, the parties
hereto agree as follows.
ARTICLE ONE
Supplemental Indenture July 15, 2005
2
AMENDMENTS
SECTION 1.01. Amendments. Subject to Section 2.01 hereof, Section
4.03 of the Indenture is amended and restated in its entirety with the
following:
"SECTION 4.03. LIMITATION ON INDEBTEDNESS. (a) The Issuer shall not,
and shall not permit any Restricted Subsidiary to, Incur any Indebtedness;
PROVIDED, HOWEVER, that the Issuer or any Restricted Subsidiary may Incur
Indebtedness if on the date of such Incurrence and after giving effect
thereto the Debt to EBITDA Ratio would be less than 6:1; PROVIDED FURTHER,
HOWEVER, that, if such Indebtedness proposed to be Incurred pursuant to
the preceding proviso is Senior Indebtedness, such Senior Indebtedness may
not be Incurred unless on the date of such Incurrence and after giving
effect thereto the Senior Debt to EBITDA Ratio would be less than 4.5:1.
(b) Notwithstanding the foregoing paragraph (a), the Issuer and its
Restricted Subsidiaries may Incur the following Indebtedness:
(i) Bank Indebtedness in an aggregate principal amount not to
exceed the sum of (1) with respect to a revolving credit facility,
up to $50,000,000 and (2) with respect to any term loan facilities,
up to an amount equal to the greater of (a) $335,000,000 and (b) the
Term Loan Borrowing Base less the aggregate amount of all
prepayments of principal applied to permanently reduce any such
Indebtedness; provided, however, that Bank Indebtedness to be
incurred under clause (2) above in excess of $335,000,000 may only
be incurred if, after giving effect to such Incurrence, the Senior
Debt to EBITDA Ratio would be less than 4.5:1;
(ii) Indebtedness of the Issuer owed to and held by any Wholly
Owned Subsidiary or Indebtedness of a Restricted Subsidiary owed to
and held by the Issuer or any Wholly Owned Subsidiary; PROVIDED,
HOWEVER, that (1) any subsequent issuance or transfer of any Capital
Stock or any other event that results in any such Wholly Owned
Subsidiary ceasing to be a Wholly Owned Subsidiary or any subsequent
transfer of any such Indebtedness (except to the Issuer or a Wholly
Owned Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness by the issuer thereof and (2) if the
Issuer is the obligor on such Indebtedness, such Indebtedness is
expressly subordinated to the prior payment in full in cash of all
obligations with respect to the Securities;
(iii) Indebtedness (1) represented by the Securities (not
including any Additional Securities) and the Guarantees, (2)
outstanding on the Closing Date (other than the Indebtedness
described in clauses (i) and (ii) above), (3) consisting of
Refinancing Indebtedness Incurred in respect of any Indebtedness
described in this clause (iii) (including Indebtedness Refinancing
Indebtedness) or Section 4.03 (a) or (4) consisting of guarantees of
any Indebtedness permitted under clauses (i) and (ii) of this
paragraph (b);
Supplemental Indenture July 15, 2005
(iv) (1) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted
Subsidiary was acquired by the Issuer (other than Indebtedness
Incurred as consideration in, or to provide all or any portion of
the funds or credit support utilized to consummate, the transaction
or series of related transactions pursuant to which such Restricted
Subsidiary became a Subsidiary of, or was otherwise acquired by,
the Issuer); PROVIDED, HOWEVER, that on the date that such
Restricted Subsidiary is acquired by the Issuer, the Issuer would
have been able to Incur $1.00 of additional Indebtedness pursuant
to Section 4.03(a) after giving effect to the Incurrence of such
Indebtedness pursuant to this clause (iv) and (2) Refinancing
Indebtedness Incurred by the Issuer or a Restricted Subsidiary in
respect of Indebtedness Incurred pursuant to this clause (iv);
(v) Indebtedness in respect of performance bonds, bankers'
acceptances, letters of credit and surely or appeal bonds provided
by the Issuer and the Restricted Subsidiaries in the ordinary course
of their business;
(vi) Purchase Money Indebtedness and Capitalized Lease
Obligations in an aggregate principal amount not in excess of
$20,000,000 at any time outstanding;
(vii) Hedging Obligations of the Issuer or any Guarantor
directly related to Indebtedness permitted to be Incurred by the
Issuer or any Guarantor pursuant to the Indenture for the purpose of
fixing or hedging interest rate risk or currency fluctuations; or
(viii) (1) Indebtedness of another Person Incurred and
outstanding on or prior to the date on which such Person
consolidates with or merges with or into the Issuer (other than
Indebtedness Incurred as consideration in, or to provide all or any
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Person consolidates with or merges with or into the Issuer);
PROVIDED, HOWEVER, that on the date that such transaction is
consummated, the Issuer would have been able to Incur $1.00 of
additional Indebtedness pursuant to Section 4.03(a) after giving
effect to the Incurrence of such Indebtedness pursuant to this
clause (viii) and (2) Refinancing Indebtedness Incurred by the
Issuer or the Successor Issuer in respect of Indebtedness Incurred
pursuant to subclause (1) of this clause (viii).
(c) Notwithstanding the foregoing, the Issuer shall not Incur any
Indebtedness pursuant to Section 4.03(b) above if the proceeds thereof are used,
directly or indirectly, to repay, prepay, redeem, defease, retire, refund or
refinance any Subordinated Obligations, unless such Indebtedness shall be
subordinated to the Securities to at least the same extent as such Subordinated
Obligations.
(d) Notwithstanding any other provision of this Section 4.03, the
maximum amount of Indebtedness that the Issuer or any Restricted Subsidiary may
Incur pursuant to this Section 4.03 shall not be deemed to be exceeded solely as
a result of fluctuations in
Supplemental Indenture July 15, 2005
the exchange rates of currencies. For purposes of determining the
outstanding principal amount of any particular Indebtedness Incurred
pursuant to this Section 4.03:
(i) Indebtedness Incurred pursuant to the Credit Agreement
prior to or on the Closing Date shall be treated as Incurred
pursuant to Section 4.03(b)(i);
(ii) Indebtedness permitted by this Section 4.03 need not be
permitted solely by reference to one provision permitting such
Indebtedness but may be permitted in part by one such provision and
in part by one or more other provisions of this Section 4.03
permitting such Indebtedness; and
(iii) in the event that Indebtedness meets the criteria of
more than one of the types of indebtedness described in this Section
4.03, the Issuer, in its sole discretion, shall classify such
Indebtedness and only be required to include the amount of such
Indebtedness in one of such clauses."
MISCELLANEOUS
SECTION 2.01. Effectiveness. This Supplemental Indenture shall
become effective on and as of the date the counterparts hereto shall have been
executed and delivered by each of the parties hereto.
SECTION 2.02. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW
YORK, INCLUDING WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL
SUPPLEMENTAL INDENTURE.
SECTION 2,03. Counterparts. This Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an original; but
such counterparts shall constitute but one and the same instrument.
SECTION 2.04. Severability. In case any provision of this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 2.05. Ratification. Except as expressly waived, amended or
supplemented hereby, all of the terms of the Indenture shall remain and continue
in full force and effect and are hereby confirmed in all respects and, as
expressly waived, amended, or supplemented hereby, the Indenture is in all
respects agreed to, ratified and confirmed by each of the Issuer, the Guarantors
and the Trustee.
SECTION 2.06. Trustee. The Trustee accepts the trusts created by the
Indenture, as supplemented by this Supplemental Indenture, and agrees to perform
the same upon the terms and conditions of the Indenture, as amended and
supplemented by this Supplemental Indenture.
SECTION 2.07. No Representations by Trustee. The recitals contained
herein shall be taken as the statement of the Issuer and Guarantors, and the
Trustee assumes no responsibility whatsoever for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Supplemental
Indenture or for the due execution hereof by the Issuer and the Guarantors.
SUPPLEMENTAL INDENTURE JULY 15, 2005
SECTION 2.08. Reaffirmation. The parties hereto make and reaffirm as
of the date of execution of this Supplemental Indenture all of their respective
representations, covenants and agreements set forth in the Indenture, as amended
by this Supplemental Indenture.
SECTION 2.09. Assignment. All covenants and agreements of the
Issuer, the Guarantors, and the Trustee in the Indenture, as amended by this
Supplemental Indenture, shall bind each of their respective Successors and
assigns, whether so expressed or not.
SECTION 2.10. Third-Party Beneficiaries. Nothing in this
Supplemental Indenture, express or implied, shall give to any Person, other than
the parties hereto and their successors under the Indenture and the Holders of
the Notes, any benefit or any legal or equitable right, remedy or claim under
the Indenture or this Supplemental Indenture.
SECTION 2.11. Trust Indenture Act. If any provisions hereof limit,
quality or conflict with a provision of the Trust Indenture Act of 1939, as
amended from time to time (the "TIA"), required under the TIA to be a part of
and govern this Supplemental Indenture, the provisions of the TIA shall control.
If any provision hereof modifies or excludes any provision of the TIA that may
be so modified or excluded, the latter provisions shall be deemed to apply to
this Supplemental Indenture as so modified or excluded, as the case may be.
SECTION 2.12. Unity. All provisions of this Supplemental Indenture
shall be deemed to be incorporated in, and made a part of, the Indenture. The
Indenture, as amended and supplemented by this Supplemental Indenture, shall be
read, taken and construed as one and the same instrument.
(signature pages follow)
Supplemental Indenture July 15, 2005
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed all as of the date and year first above written.
ALASKA COMMUNICATIONS SYSTEMS GROUP, INC.
By: /s/ David Wilson
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Name: David Wilson
Title: Senior Vice President and
Chief Financial Officer
ALASKA COMMUNICATIONS SYSTEMS GROUP, INC.
By: /s/ David Wilson
--------------------------------------------
Name: David Wilson
Title: Senior Vice President and
Chief Financial Officer
ACS OF THE NORTHLAND, INC.
ACS OF ALASKA, INC.
ACS OF FAIRBANKS, INC.
ACS OF ANCHORAGE, INC.
ACS WIRELESS, INC.
ACS INTERNET, INC.
ACS MESSAGING, INC.
ACS INFOSOURCE, INC.
ACS OF ALASKA LICENSE SUB, INC.
ACS OF THE NORTHLAND LICENSE SUB, INC.
ACS OF FAIRBANKS LICENSE SUB, INC.
ACS OF ANCHORAGE LICENSE SUB, INC.
ACS WIRELESS LICENSE SUB, INC.
ACS LONG DISTANCE LICENSE SUB, INC.
ACS TELEVISION LICENSE SUB, INC.
ACS SERVICES, INC.
ACS LONG DISTANCE, INC.
By: /s/ David Wilson
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Name: David Wilson
Title: Senior Vice President and
Chief Financial Officer
Supplemental Indenture July 15, 2005
THE BANK OF NEW YORK
BY: /s/ Sandie Parks
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Name: Sandie Parks
Title: Vice President