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Exhibit 4.3
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE, dated as of April 8, 1998,
supplements and amends the Indenture (herein called the "Indenture"), dated as
of October 24, 1996, between Western Wireless Corporation, a corporation duly
organized and existing under the laws of the State of Washington (herein called
the "Company"), having its principal offices at ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇ Trust Company of California, a trust
company duly organized and existing under the laws of the State of California,
as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, pursuant to the Indenture, the Company issued $200,000,000
aggregate principal amount of the Company's 10-1/2% Senior Subordinated Notes
due 2007 (herein called the "Notes");
WHEREAS, Section 902 of the Indenture provides, among other things, that,
with the consent of the holders of not less than a majority in principal amount
of the outstanding Notes, the Company, when authorized by a Board Resolution (as
defined in the Indenture) of its Board of Directors, and the Trustee may enter
into a supplemental indenture amending the Indenture;
WHEREAS, the Company has received the consent of the holders of a majority
of the outstanding principal amount of the Notes to make certain amendments to
the Indenture;
WHEREAS, the Company has been authorized by a Board Resolution to enter
into this Supplemental Indenture;
NOW, THEREFORE, for and in consideration of the premises, the Issuer and
the Trustee covenant and agree as follows:
ARTICLE ONE
AMENDMENTS TO THE INDENTURE
Section 1.1 Amendment to Section 1008. Clause (ii) of the second paragraph
of Section 1008 of the Indenture is hereby amended and restated to read in its
entirety as follows:
(ii) (A) Indebtedness of the Company or any Restricted
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Subsidiary (other than Western PCS Corporation or any Restricted
Subsidiary of Western PCS Corporation), as the case may be, that is
outstanding or committed at the date hereof under the Credit
Facility (including any letters of credit issued thereunder), (B)
Indebtedness of the Company or any Restricted Subsidiary (including
Western PCS Corporation or any Restricted Subsidiary of Western PCS
Corporation) under the NORTEL Facility, and (C) Indebtedness of
Western PCS Corporation or any Restricted Subsidiary of Western PCS
Corporation pursuant to one or more credit or financing facilities,
the proceeds of which are used for the general corporate purposes of
Western PCS Corporation or any of its Restricted Subsidiaries, and
any renewal, extension, refinancing or refunding of any thereof;
provided, that (y) the aggregate principal amount of the
Indebtedness permitted under this Clause (ii) does not exceed $950
million at any time outstanding and (z) this Clause (ii) shall not
prohibit the Company from Incurring additional Indebtedness under
the Credit Facility or the NORTEL Facility, or Western PCS
Corporation or any of its Restricted Subsidiaries from Incurring
Indebtedness under any other credit or financing facility of Western
PCS Corporation, otherwise permitted pursuant to this Section 1008;
Section 1.2 Amendment to Section 1011. The first paragraph of Section 1011
of the Indenture is hereby amended and restated to read in its entirety as
follows:
The Company (i) shall not, and shall not permit any Restricted
Subsidiary of the Company to, directly or indirectly, declare or pay
any dividend, or make any distribution, of any kind or character
(whether in cash, property or securities) in respect of any class of
its or such Restricted Subsidiary's Capital Stock or to the holders
of any class of its or such Restricted Subsidiary's Capital Stock
(excluding any dividends or distributions payable solely in shares
of its or such Restricted Subsidiary's Qualified Capital Stock or in
options, warrants or other rights to acquire its or such Restricted
Subsidiary's Qualified Capital Stock, and other than any declaration
or payment of a dividend or other distribution by a Restricted
Subsidiary to the Company or another Restricted Subsidiary), (ii)
shall not, and shall not permit any Restricted Subsidiary of the
Company, directly or indirectly, to purchase, redeem or otherwise
acquire or retire for value (a) any Capital Stock of the Company or
any Related Person (other than a Restricted Subsidiary) of the
Company or (b) any options, warrants or rights to purchase or
acquire shares of Capital Stock of the Company or such Restricted
Subsidiary or any Related Person (other than a Restricted
Subsidiary) of the Company or such
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Restricted Subsidiary, in each case other than pursuant to the
cashless exercise of options, (iii) shall not make, or permit any
Restricted Subsidiary of the Company to make, any loan, advance,
capital contribution to, or investment in, or payment of a Guaranty
of any obligation of, or purchase, redemption or other acquisition
of any shares of capital stock or any Indebtedness of, any Affiliate
or Related Person (other than a Restricted Subsidiary or other than
any loan, advance, capital contribution to, or investment in, the
Company or another Restricted Subsidiary by a Restricted Subsidiary,
any purchase, redemption or other acquisition of shares of Capital
Stock of any Subsidiary of the Company where the purchase price for
such Capital Stock is payable entirely in Qualified Capital Stock of
the Company, or any payment by any Restricted Subsidiary of any
loan, advance or other Indebtedness or other amount owed by a
Restricted Subsidiary to the Company or another Restricted
Subsidiary) and (iv) shall not, and shall not permit any Restricted
Subsidiary of the Company to, redeem, defease (including, but not
limited to, legal or covenant defeasance), repurchase, retire or
otherwise acquire or retire for value prior to any scheduled
maturity, repayment or sinking fund payment, Indebtedness of the
Company or such Restricted Subsidiary (other than the Securities)
which is subordinate in right of payment to the Securities (the
transactions described in Clauses (i) through (iv) being referred to
herein as "Restricted Payments"), if at the time thereof and giving
effect thereto:
Section 1.3 Amendment to the Definition of Asset Disposition. The
definition of "Asset Disposition" in the Indenture is hereby amended and
restated to read in its entirety as follows:
"Asset Disposition" by any Person means any transfer, conveyance,
sale, lease or other disposition by such Person or any of its
Restricted Subsidiaries (including a consolidation or merger or
other sale of any such Restricted Subsidiaries with, into or to
another Person in a transaction in which such Restricted Subsidiary
ceases to be a Restricted Subsidiary, but excluding a disposition by
a Subsidiary of such Person to such Person or a Wholly Owned
Restricted Subsidiary of such Person or by such Person to a Wholly
Owned Restricted Subsidiary of such Person) of (i) shares of Capital
Stock (other than directors' qualifying shares) or other ownership
interests of a Restricted Subsidiary of such Person, (ii) all or
substantially all of the assets of such Person or any of its
Restricted Subsidiaries representing a division or line of business
or (iii) other assets or rights of such Person or any of its
Restricted Subsidiaries having a Fair Market Value greater than
$100,000.
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Section 1.4 Amendment to the Definition of Permitted Joint Venture. The
definition of "Permitted Joint Venture" in the Indenture is hereby amended and
restated to read in its entirety as follows:
"Permitted Joint Venture" means, as applied to any Person, (i) any
corporation or other entity (a) engaged in the acquisition,
ownership, operation and management of assets in the Wireless
Communications Business, (b) over which such Person is responsible
(either directly or through a services agreement) for day-to-day
operations or otherwise has operational and managerial control, (c)
of which more than forty percent (40%) of the outstanding Capital
Stock (other than directors' qualifying shares) having ordinary
Voting Power to elect its board of directors, regardless of the
existence at the time of a right of the holders of any class or
classes of securities of such corporation to exercise such Voting
Power by reason of the happening of any contingency, in the case of
a corporation, or more than forty percent (40%) of the outstanding
ownership interests, in the case of an entity other than a
corporation, is at the time owned directly or indirectly by such
Person, or by one or more Subsidiaries of such Person, or by such
Person and by one or more Subsidiaries of such Person and (d) with
respect to which such Person has the right or option to acquire all
of the outstanding Capital Stock or ownership interests not owned by
such Person; or (ii) any corporation or other entity which conducts
no business other than the Wireless Communications Business
exclusively outside the United States.
Section 1.5 Amendment to the Definition of Permitted Joint Venture
Investment. The definition of "Permitted Joint Venture Investment" in the
Indenture is hereby amended and restated to read in its entirety as follows:
"Permitted Joint Venture Investment" means (i) any payment on
account of the purchase, redemption, retirement or acquisition of
(A) any shares of Capital Stock or other ownership interests of a
Permitted Joint Venture or (B) any option, warrant or other right to
acquire shares of Capital Stock or ownership interests of a
Permitted Joint Venture or (ii) any loan, advance, lease, capital
contribution to, or investment in, or payment of a Guaranty of any
obligation of a Permitted Joint
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Venture; provided that such loan, advance, lease, capital
contribution, investment or payment provides for a return that is
senior in right of payment to any return on the Capital Stock or
ownership interests of such Permitted Joint Venture; and provided,
further, that not less than 75% of the aggregate Permitted Joint
Venture Investments in any Permitted Joint Venture referred to in
Clause (i) of the definition of Permitted Joint Venture shall be
Permitted Joint Venture Investments described in Clause (ii); and
provided, further, however, that the amount of Permitted Joint
Venture Investments by the Company and its Restricted Subsidiaries
in Permitted Joint Ventures described in Clause (ii) of the
definition of Permitted Joint Venture, shall not exceed $20 million
for any single such Permitted Joint Venture or $75 million in the
aggregate for all such Permitted Joint Ventures.
Section 1.6 Amendment to the Definition of Unrestricted Subsidiary. Clause
(B) of the definition of "Unrestricted Subsidiary" in the Indenture is hereby
amended and restated to read in its entirety as follows:
(B) if such Subsidiary has assets greater than $1,000, the Fair
Market Value of the Subsidiary at the time of such designation would
be permitted as an investment (other than pursuant to Clause (iii)
under the last paragraph of Section 1011) under Section 1011.
ARTICLE TWO
MISCELLANEOUS
Section 2.1 Conditions Precedent. This First Supplemental Indenture shall
become effective on the tenth Business Day following delivery of the notice to
holders of the Notes required by Section 902 of the Indenture.
Section 2.2 Incorporation of the Indenture. All of the provisions of this
First Supplemental Indenture shall be deemed to be incorporated in, and form a
part of, the Indenture; and the Indenture, as modified by this First
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument for all purposes.
Section 2.3 Effect of Headings. The Article and Section headings of this
First Supplemental Indenture are for convenience only and shall not affect the
construction hereof.
Section 2.4 Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed an original, but all such counterparts shall together constitute one and
the same instrument.
Section 2.5 Conflict with the Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be part of and govern this Supplemental Indenture,
the latter provision shall control.
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Section 2.6 Successors. All consents, covenants and agreements in this
First Supplemental Indenture by the Company and the Trustee shall bind their
respective successors and assigns, whether so expressed or not.
Section 2.7 Separability. In case any provision of this First 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 2.8 Benefits. Nothing in this First Supplemental Indenture,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder and the holders of the Notes, any benefit or any
legal or equitable right, remedy or claim under this First Supplemental
Indenture or the Indenture.
Section 2.9 Governing Law. This First Supplemental Indenture shall be
governed by and construed in accordance with the laws of State of New York.
Section 2.10 Terms Defined. All terms defined elsewhere in the Indenture
have the same meanings herein.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first written above.
WESTERN WIRELESS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Attest:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇▇ TRUST COMPANY OF CALIFORNIA
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Attest:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
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