Exhibit 4.9
SECOND AMENDMENT TO INDENTURE
SECOND AMENDMENT TO INDENTURE (this "Second Amendment")
dated as of November ____, 1999, among ALASKA COMMUNICATIONS
SYSTEMS GROUP, INC. (formerly known as ALEC Holdings, Inc.), a
Delaware corporation (the "Company"), and THE BANK OF NEW YORK, a
New York banking corporation, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Indenture (as amended, the "Indenture") dated as of May 14, 1999, providing
for the issuance of an aggregate principal amount of up to $46,928,435 of 13%
Senior Discount Debentures due 2011 (the "Securities");
WHEREAS, the parties to the Indenture wish to cure a defect and
inconsistency in the definition of EBITDA set forth in Section 1.01
(Definitions) of the Indenture;
WHEREAS, pursuant to Sections 9.01 (and in accordance with Section 9.02)
of the Indenture, the Trustee and the Company are authorized to execute and
deliver this Second Amendment;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the Company
and the Trustee mutually covenant and agree for the equal and ratable benefit of
the holders of the Securities as follows:
1. DEFINITION OF EBITDA. The last paragraph of the definition of "EBITDA"
in Section 1.01 (Definitions) of the Indenture is deleted and replaced in its
entirety by the following:
"Notwithstanding the foregoing, the provision for taxes based on
the income or profits of, and the depreciation and amortization
and non-cash charges of, a Restricted Subsidiary of Holdings shall
be added to Consolidated Net Income to compute EBITDA only to the
extent (and in the same proportion) that the net income of such
Restricted Subsidiary was included in calculating Consolidated Net
Income and only if a corresponding amount would be permitted at
the date of determination to be dividended to the Company by such
Restricted Subsidiary without prior approval (that has not been
obtained), pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes,
rules and governmental regulations applicable to such Restricted
Subsidiary or its stockholders."
2. DEFINITION OF CONSOLIDATED NET INCOME. Clause (3) in the proviso to
the definition of "Consolidated Net Income" in Section 1.01 (Definitions) of
the Indenture is deleted and replaced in its entirety by the following:
(3) any net income of any Restricted Subsidiary (other than the Company) to
the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of its net income is not, at
the date of determination, permitted without any prior governmental
approval (which has not been obtained) or, directly or indirectly, by the
operation of the terms of its charter, or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders (in either
case, other than the Company), unless such restrictions with respect to
the payment of dividends or similar distributions have been legally
waived; except that the net loss of any such Restricted Subsidiary for
such period shall be included in determining such Consolidated Net
Income;
3. RATIFICATION OF INDENTURE; SECOND AMENDMENT PART OF INDENTURE. Except
as expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect. This Second Amendment shall form a part of the Indenture
for all purposes, and every holder of Securities heretofore or hereafter
authenticated and delivered shall be bound hereby.
4. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
5. REPRESENTATIONS. (a) DLJ Investment Partners, L.P., DLJ Investment
Funding, Inc. and DLJ ESC II, L.P. represent and warrant that they hold all of
the outstanding Securities.
(b) The Trustee makes no representation as to the validity or sufficiency
of this Second Amendment.
6. COUNTERPARTS. The parties may sign any number of copies of this Second
Amendment. Each signed copy shall be an original, but all of them together
represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be duly executed as of the date first above written.
ALASKA COMMUNICATIONS SYSTEMS GROUP, INC.
(formerly known as ALEC Holdings, Inc.)
By:
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Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
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Name:
Title:
AGREED AND CONSENTED TO:
DLJ Investment Partners, L.P.,
By DLJ Investment Partners, Inc.,
Its General Partner
By:
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Name:
Title:
DLJ Investment Funding, Inc.,
By:
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Name:
Title:
DLJ ESC II, L.P.,
DLJ LBO Plans Management Corporation,
Its General Partner
By:
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Name:
Title:
[SIGNATURE PAGE TO SECOND AMENDMENT TO INDENTURE]
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