Exhibit 10.1


 


ALASKA COMMUNICATIONS
SYSTEMS HOLDINGS, INC.


 


Issuer


 


GUARANTORS


 


and


 


THE BANK OF NEW YORK


 


Trustee


 


SUPPLEMENTAL INDENTURE


 


Dated as of January 25,
2005


 










 


 


9 7/8% SENIOR NOTES DUE
2011


 





















 


THIS SUPPLEMENTAL INDENTURE
(the “Supplemental Indenture”), dated as of January 25, 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.


 


W
I  T  N  E  S  S  E  T  H:


 


WHEREAS, the
Issuer has issued its 9 7/8% Senior Notes Due 2011 (the “Notes”) pursuant to
the Indenture;


 


WHEREAS, the
Issuer has offered (the “Tender Offer”) to purchase up to $59,350,000 aggregate
principal amount of the Notes pursuant to the Offer to Purchase and Consent
Solicitation, dated January 12, 2005, and has solicited (the “Consent
Solicitation”) the consents of the Holders of the Notes to certain amendments
to the provisions of the Indenture in connection with the Tender Offer pursuant
to its Offer to Purchase and Consent Solicitation, dated January 12, 2005 (as
amended from time to time on or prior to the date hereof, the “Offer to
Purchase”);


 


WHEREAS, in
connection with the Consent Solicitation, the Issuer has obtained the consents
of certain Holders of the Notes to such amendments of certain provisions of the
Indenture and the Notes;


 


WHEREAS,
Section 9.02 of the Indenture provides that with the consent of the Holders of
at least a majority in principal amount of the Notes then outstanding, the
Issuer, any Guarantor, and the Trustee may amend or supplement the Indenture
and the Notes, subject to specified exceptions;


 


WHEREAS, the
Holders of a majority of the principal amount of the Notes outstanding have
duly consented to the proposed amendments set forth in this Supplemental
Indenture in accordance with Section 9.02 of the Indenture;


 


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, (iii) evidence of the written consent of the Holders set forth in
the immediately preceding paragraph (iv) an Officers’ Certificate and an
Opinion of Counsel with and to the effect set forth in Section 7.02(b) of the
Indenture; and


 


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.


 


NOW, THEREFORE,
in consideration of the foregoing, the parties hereto agree as follows.


 


2





















 


ARTICLE ONE


AMENDMENTS


 


SECTION 1.01.  Amendments.  Subject to Section 2.01 hereof, the Indenture
is hereby amended by:


 


(A) deleting Section 4.03(b) in its entirety and
replacing it with:


 


“(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;”


 


(B) deleting Section 4.04(a)(2) in its entirety and
replacing it with:


 


“(2)         (X) the Issuer could not Incur at least
$1.00 of additional Indebtedness under Section 4.03(a), or (Y) (1) the Senior
Debt to EBITDA Ratio is greater than 5:1, if the Restricted Payment is made
prior to August 15, 2007, or (2) the Senior Debt to EBITDA Ratio is greater
than 4.75:1, if the Restricted Payment is made on or after August 15, 2007;”


 


(C) replacing the definition of “Credit Agreement” in
Section 1.01 with the following:


 


“Credit Agreement” means the credit agreement to be
entered into among the Issuer, Parent, the financial institutions named therein
and JPMorgan Chase Bank, as Administrative Agent, as amended, waived or
otherwise modified from time to time (except to the extent that any such
amendment, waiver or other modification thereto would be prohibited by the
terms of this Indenture, unless otherwise agreed to by the Holders of at least
a majority in aggregate principal amount of Securities at the time
outstanding), including any such amendments or modifications (or any other
credit agreement or credit agreements) that replace, refund or refinance any or
a portion of the commitments or loans thereunder, up to a maximum 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) an amount
equal to the Term Loan Borrowing Base.”


 


(D) adding the following definition in the appropriate
place in Section 1.01:


 


“‘Term Loan Borrowing
Base’ means, as of the date of determination, 325% of EBITDA, for the period of
the most recent four consecutive fiscal quarters at the end of the most recent
fiscal quarter for which financial statements are publicly available; PROVIDED
HOWEVER THAT:


 


3





















 


(1)           if the Issuer or any Restricted
Subsidiary has repaid, repurchased, defeased or otherwise discharged any
Indebtedness since the beginning of such period or if any Indebtedness is to be
repaid, repurchased, defeased or otherwise discharged (in each case, other than
Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been replaced) on the date
of the transaction giving rise to the need to calculate the Term Loan Borrowing
Base, EBITDA for such period shall be calculated on a pro forma basis as if
such discharge had occurred on the first day of such period and as if the
Issuer or such Restricted Subsidiary has not earned the interest income
actually earned during such period in respect of cash or Temporary Cash
Investments used to repay, repurchase, defease or otherwise discharge such
Indebtedness;


 


(2)           if since the beginning of such period
the Issuer or any Restricted Subsidiary shall have made any Asset Disposition,
the EBITDA for such period shall be reduced by an amount equal to the EBITDA
(if positive) directly attributable to the assets that are the subject of such
Asset Disposition for such period or increased by an amount equal to the EBITDA
(if negative) directly attributable thereto for such period;


 


(3)           if since the beginning of such
period, the Issuer or any Restricted Subsidiary (by merger or otherwise) shall
have made an Investment in any Person that is merged with or into the Issuer or
any Restricted Subsidiary (or any Person that becomes a Restricted Subsidiary)
or an acquisition of assets, including any acquisition of assets occurring in
connection with a transaction causing a calculation to be made hereunder, which
constitutes all or substantially all of an operating unit of a business, EBITDA
for such period shall be calculated after giving pro forma effect thereto
(including the Incurrence of any Indebtedness) as if such Investment or
acquisition occurred on the first day of such period; any such pro forma
calculation may include adjustments appropriate to reflect, without
duplication, (a) any such acquisition to the extent such adjustments may be
reflected in the preparation of pro forma financial information in accordance
with the requirements of GAAP and Article XI of Regulation S-X under the
Exchange Act, (b) the annualized amount of operating expense reductions
reasonably expected to be realized in the six months following any such
acquisition made during any of the four fiscal quarters constituting the
four-quarter reference period prior to the date of determination and (c) the
annualized amount of operating expense reductions reasonably expected to be
realized in the six months following any such acquisition made by the Issuer
during either of the two fiscal quarters immediately preceding the four-quarter
reference period prior to the date of determination; PROVIDED that in either
case such adjustments are set forth in an Officers’ Certificate that has been
signed by the Issuer’s chief executive officer and chief financial officer and
that states (a) the amount of such adjustment or adjustments, (b) that such
adjustment or adjustments are based on the reasonable good faith beliefs of the
officers executing such Officers’ Certificate at the time of such execution and
(c) that any related Incurrence of Indebtedness is permitted pursuant to the
Indenture;


 


(4)           if since the beginning of such
period, any Person (that subsequently became a Restricted Subsidiary or was
merged with or into the Issuer or any Restricted Subsidiary since the beginning
of such period) shall have made any Asset Disposition or any Investment or
acquisition of assets that would have required an adjustment pursuant to clause
(2) or (3) above if made by the Issuer or a Restricted Subsidiary during such
period, EBITDA for such period shall be calculated after giving pro forma
effect thereto as if such Asset Disposition, Investment or acquisition of
assets occurred on the first day of such period.


 





















 


For purposes of this
definition, whenever pro forma effect is to be given to an acquisition of
assets and the amount of income or earnings relating thereto, the pro forma
calculations shall be determined in good faith by a responsible financial or
accounting Officer of the Issuer.  If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest expense on such Indebtedness shall be calculated as if the
rate in effect on the date of determination had been the applicable rate for
the entire period (taking into account any Interest Rate Agreement applicable
to such Indebtedness if such Interest Rate Agreement has a remaining term as at
the date of determination in excess of 12 months).”


 


SECTION 1.02.   Amendment of Definitions.  Subject to Section 2.01 hereof, the Indenture
is hereby amended by deleting any definitions from the Indenture with respect
to which references would be eliminated as a result of the amendment of the
Indenture pursuant to Section 1.01 hereof.


 


ARTICLE TWO


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.  This Supplemental Indenture will become
operative upon the earlier to occur of (x) the Payment Date (as defined in the
Offer to Purchase) and (y) the date on which the Issuer delivers a written,
irrevocable notice to the Depositary (as defined in the Offer to Purchase) that
all conditions to the Tender Offer have been waived or satisfied and it shall
not amend, extend or terminate the Tender Offer and shall consummate the Tender
Offer at the Expiration Time (as defined in the Offer to Purchase) in effect on
such date, in which case this Supplemental Indenture will become operative as
of the date hereof.


 


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.


 





















 


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)


 





















 


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 HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
  ALASKA COMMUNICATIONS SYSTEMS GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACS OF THE NORTHLAND, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACS OF ALASKA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACS OF FAIRBANKS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACS OF ANCHORAGE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  



 





















 


	
   

  	
  ACS WIRELESS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACS INTERNET, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACS MESSAGING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACS INFOSOURCE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACS OF ALASKA LICENSE SUB, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACS OF THE NORTHLAND LICENSE SUB, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  



 





















 


	
   

  	
  ACS OF FAIRBANKS LICENSE SUB, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACS OF ANCHORAGE LICENSE SUB, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACS WIRELESS LICENSE SUB, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACS LONG DISTANCE LICENSE SUB, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACS TELEVISION LICENSE SUB, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACS SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  



 





















 


	
   

  	
  ACS LONG DISTANCE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leonard
  Steinberg

  
	
   

  	
   

  	
  Name:

  	
  Leonard Steinberg

  
	
   

  	
   

  	
  Title:

  	
  General Counsel and Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daren M. DiNicola

  
	
   

  	
   

  	
  Name:

  	
  Daren M. DiNicola

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory