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EXHIBIT 4.6.1
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
June 13, 2000 between Cricket Merger Sub, Inc., a Delaware corporation, (the
"Additional Guarantor"), Leap Wireless International, Inc., a Delaware
corporation (the "Company"), Cricket Communications Holdings, Inc., a Delaware
corporation (the "Guarantor"), and State Street Bank and Trust Company, a state
chartered trust company organized under the laws of the Commonwealth of
Massachusetts, as trustee under the indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company and the Guarantor have heretofore executed and
delivered to the Trustee an indenture (the "Indenture"), dated as of February
23, 2000, providing for the issuance of an aggregate principal amount at
maturity of $225,000,000 of 12 1/2% Series A and Series B Senior Notes due 2010
and $668,000,000 14 1/2 Series A and Series B Senior Discount Notes due 2010;
WHEREAS, Section 4.23 of the Indenture provides that under certain
circumstances the Company and the Guarantor are required to cause the Additional
Guarantor to execute and deliver to the Trustee a supplemental indenture
pursuant to which the Additional Guarantor shall unconditionally guarantee all
of the Company's Obligations under the Indenture and the Securities pursuant to
a guarantee (the "Additional Guarantee") on the terms and conditions of the
Guarantee by the Guarantor in Article 10 of the Indenture and on the other terms
and conditions set forth herein; and
WHEREAS, pursuant to Section 7.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto mutually covenant and agree for the equal and ratable benefit of
the holders of the Securities as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Additional Guarantor hereby agrees,
jointly and severally with all other guarantors, to guarantee the Company's
Obligations under the Indenture and the Securities on the terms and subject to
the conditions set forth herein and in Article 10 of the Indenture (including
the obligation to pay Liquidated Damages under the provisions of the
Registration Rights Agreement) and to be bound by all other applicable
provisions of the Indenture. Pursuant to Section 10.01 of the Indenture, the
Additional Guarantor agrees that the Guarantees set forth in Article 10 of the
Indenture, as supplemented by its agreement to guarantee contained herein shall
remain in full force and effect and apply to all of the Securities
notwithstanding any failure by the Additional Guarantor to endorse on such
Securities a notation of the Additional Guarantee.
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3. RELEASE OF ADDITIONAL GUARANTOR. In the event that the holders
of any of the Company's other Indebtedness which is guaranteed by the Additional
Guarantor release the Additional Guarantor from its guarantee in respect of such
other Indebtedness, except a discharge or release by or as a result of any
payment under the guarantee of such other Indebtedness by the Additional
Guarantor, the Additional Guarantor shall be automatically and unconditionally
released and discharged from its obligations under this Additional Guarantee;
provided, however, if, after such release, any guarantee under such other
Indebtedness is subsequently reincurred or reinstated, then such Additional
Guarantor reincurring or reinstating such guarantee under such other
Indebtedness shall execute and reinstate its Additional Guarantee hereunder.
Upon receipt of an Officer's Certificate, the Trustee shall execute
any documents reasonably requested by the Company, the Guarantor or the
Additional Guarantor in order to evidence the release of such Additional
Guarantor from its obligations under the Additional Guarantee.
4. NO RECOURSE AGAINST OTHERS. No direct or indirect stockholder,
employee, officer or director, as such, past, present or future of the Company,
the Guarantors or the Additional Guarantor or any successor entity shall have
any personal liability for any Obligations of the Company, the Guarantors or the
Additional Guarantor or any successor entity under the Additional Guarantee, by
reason of his or its status as such stockholder, employee, officer or director.
Each Holder by accepting a Security waives and releases all such
liability, and such waiver and release is part of the consideration for the
issuance of the Securities.
5. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
6. COUNTERPARTS. This Supplemental Indenture may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
7. EFFECT OF THE HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
ADDITIONAL GUARANTOR:
CRICKET MERGER SUB, INC., INC.
By: /s/ JAMES E. HOFFMANN
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Name: James E. Hoffmann
Title: Senior Vice President
COMPANY:
LEAP WIRELESS INTERNATIONAL, INC.
By: /s/ THOMAS D. WILLARDSON
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Name: Thomas D. Willardson
Title: Senior Vice President,
Finance
GUARANTOR:
CRICKET COMMUNICATIONS HOLDINGS, INC.
By: /s/ SUSAN B. SWENSON
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Name: Susan B. Swenson
Title: President
TRUSTEE:
STATE STREET BANK AND TRUST COMPANY
By: /s/ MICHAEL M. HOPKINS
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Name: Michael M. Hopkins
Title: Vice President
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