1
EXHIBIT 4.4
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 May 22, 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 0000 X.X. Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, and Xxxxxx 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 2006 (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
1
2
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
2
3
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.
3
4
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 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
4
5
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 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 2.2 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 2.3 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 2.4 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.
Section 2.5 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.
5
6
Section 2.6 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 2.7 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 2.8 Governing Law. This First Supplemental Indenture shall be
governed by and construed in accordance with the laws of State of New York.
Section 2.9 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/ XXXX X. XXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
Attest:
By: /s/ XXXXXX XXXXXXX
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
XXXXXX TRUST COMPANY OF CALIFORNIA
By: /s/ XXXXXX XXXXXXXXX
-----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
Attest:
By: /s/ XXXX X. XXXXXXX
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
6
