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 & Xxxxx, 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/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
ALASKA COMMUNICATIONS SYSTEMS HOLDINGS,
INC.,
by /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
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/ Xxxx Xxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
as Syndication Agent,
by /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Director
CREDIT SUISSE FIRST BOSTON CORPORATION,
individually and as Documentation
Agent,
by /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
by /s/ Xxxx X'Xxxx
---------------------------------
Name: Xxxx X'Xxxx
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/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
Name of Institution: ARES Leveraged Investment Fund II, L.P
By: ARES Management II, L.P
General Partner
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
Name of Institution: ARES III CLO Ltd.
By: ARES CLO Management LLC
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
Name of Institution: ARES IV CLO Ltd.
By: ARES CLO Management IV, LP,
Investment Manager
By: ARES CLO XX XX, LLC,
Its Managing Member
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
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/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
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/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
Name of Institution: Capitva II Finance Ltd.
by /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Director
Name of Institution: CoBank, ACB
by /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Assistant Vice President
Name of Institution: C-Squared CDO Ltd.
By: TCW Advisors Inc., as its
Portfolio Manager
by /s/ Xxxx X. Gold
------------------------------------
Name: Xxxx X. Gold
Title: Managing Director
Name of Institution: ELC (Cayman) Ltd. 1999-II
By: Xxxxx X. Xxxxxx & Company Inc.
as Collateral Manager
by /s/ Xxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Managing Director
Name of Institution: ELC (Cayman) Ltd. CDO Series 1999-I
By: Xxxxx X. Xxxxxx & Company Inc.
as Collateral Manager
by /s/ Xxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Managing Director
Name of Institution: Franklin Floating Rate Trust
by /s/ Xxxxxxx X'Xxxxxxx
------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
Name of Institution: Gallatin Funding I Ltd.
By: Bear Xxxxxxx Asset Management Inc.
as its Collateral Manager
by /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
Name of Institution: Grayston CLO 2002-01 Ltd.
By: Bear Xxxxxxx Asset Management Inc.
as its Collateral Manager
by /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
Name of Institution: KZH Crescent LLC
by /s/ Xxxxx Xxxxxx-Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
Name of Institution: KZH Crescent 2 LLC
by /s/ Xxxxx Xxxxxx-Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
Name of Institution: KZH Crescent 3 LLC
by /s/ Xxxxx Xxxxxx-Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
Name of Institution: National City Bank
by /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Assistant Vice President
Name of Institution: National Cooperative Services
Corporation
by /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Associate Vice President
Name of Institution: Sequils I, Ltd
By: TCW Advisors Inc., as its
Collateral Manager
by /s/ Xxxx X. Gold
------------------------------------
Name: Xxxx X. Gold
Title: Managing Director
by /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Name of Institution: Sequils IV, Ltd
By: TCW Advisors Inc., as its
Collateral Manager
by /s/ Xxxx X. Gold
------------------------------------
Name: Xxxx X. Gold
Title: Managing Director
by /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Name of Institution: TCW Leveraged Income Trust IV, L.P.
By: TCW (XXXX XX), L.L.C.,
As General Partner
By: TCW Asset Management Company
As managing member of the
General Partner
by /s/ Xxxx X. Gold
------------------------------------
Name: Xxxx X. Gold
Title: Managing Director
by /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Name of Institution: TCW Select Loan Fund, Limited
By: TCW Advisors Inc., as its
Collateral Manager
by /s/ Xxxx X. Gold
------------------------------------
Name: Xxxx X. Gold
Title: Managing Director
by /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Name of Institution: United of Omaha Life Insurance Company
By: TCW Asset Management Company,
Its Investment Advisor
by /s/ Xxxx X. Gold
------------------------------------
Name: Xxxx X. Gold
Title: Managing Director
by /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Name of Institution: U.S. Bank National Association
by /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Name of Institution: Xxxxxxx Bank
by /s/ Xxxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
Name of Institution: Xxxxx Fargo Bank Alaska, N.A.
by /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
