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EXHIBIT 10.26.9
EXHIBIT I
SUBORDINATION AGREEMENT dated as of September 17, 1999,
among CRICKET COMMUNICATIONS, INC., a Delaware corporation
("Holdings"), CRICKET WIRELESS COMMUNICATIONS, INC., a Delaware
corporation (the "Borrower"), LEAP WIRELESS INTERNATIONAL, INC.,
a Delaware corporation (the "Parent"), each subsidiary of the
Borrower listed on Schedule I hereto (each a "Subsidiary", and,
collectively, the "Subsidiaries"), each subsidiary of the Parent
listed on Schedule I hereto (each a "License Subsidiary", and,
collectively, the "License Subsidiaries"; each Subsidiary, each
License Subsidiary, Holdings, and the Parent individually, a
"Subordinated Creditor" and collectively, the "Subordinated
Creditors"), and STATE STREET BANK AND TRUST COMPANY, as
collateral agent (in such capacity, the "Collateral Agent") for
the Secured Parties.
Reference is made to the Collateral Agency and Intercreditor Agreement
dated as of September 17, 1999 (as amended, supplemented or otherwise modified
from time to time, the "Collateral Agency and Intercreditor Agreement") among
the Borrower, the Representatives and Unrepresented Holders referred to therein
and the Collateral Agent. Capitalized terms used herein and not defined herein
shall have the meanings assigned to such terms in the Collateral Agency and
Intercreditor Agreement. Each Subordinated Creditor acknowledges receipt of a
true and correct copy of the Collateral Agency and Intercreditor Agreement and
agrees to the terms thereof.
The Lenders have agreed to make Loans to the Borrower pursuant
to, and upon the terms and subject to the conditions specified in, the Credit
Agreement. The obligation of the Lenders to make Loans is conditioned on, among
other things, the execution and delivery by the Subordinated Creditors, the
Borrower and the Collateral Agent of a subordination agreement in the form
hereof. In order to induce the Secured Parties to extend credit under the
applicable Secured Instrument, each of the Subordinated Creditors and the
Borrower are willing to execute and deliver this Agreement. The Borrower may
from time to time incur Permitted Additional Obligations that are required to
become Senior Obligations hereunder. Accordingly, the Subordinated Creditors,
the Borrower and the Collateral Agent hereby agree as follows:
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ARTICLE I
DEFINITIONS
Terms used herein but not defined herein shall have the meanings
set forth in the Collateral Agency and Intercreditor Agreement. Section 1.02 of
the Collateral Agency and Intercreditor Agreement also shall apply to terms used
in this Agreement. In addition to the terms defined elsewhere in this Agreement
or in the Collateral Agency and Intercreditor Agreement, as used herein the
following terms shall have the following meanings:
"Borrower Companies" means the Borrower, the License
Subsidiaries and the Subsidiaries.
"Primary Subordinated Obligations" means, with respect to any
Borrower Company, the following:
(a) all monetary obligations of such Borrower Company, whether
in respect of principal, premium interest or otherwise, in respect of
any Indebtedness owed by such Borrower Company to any Subordinated
Creditor (including any such obligations owing to any other Person for
the direct or indirect benefit of any Subordinated Creditor); and
(b) any fees or similar charges payable to or directly or
indirectly for the benefit of any Subordinated Creditor;
provided that the Primary Subordinated Obligations of a Borrower Company shall
not include any of the foregoing obligations owed to a Subordinated Creditor
that is a Subsidiary Loan Party.
"Secondary Subordinated Obligations" means, with respect to any
Borrower Company, all monetary obligations and other liabilities of such
Borrower Company at any time owing to any Subordinated Creditor (including any
such obligations or other liabilities owing to any other Person for the direct
or indirect benefit of any Subordinated Creditor); provided that Secondary
Subordinated Obligations of a Borrower Company shall not include its Primary
Subordinated Obligations.
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"Senior Creditors" means the Secured Parties and their
respective successors and assigns.
"Senior Creditor Documents" means the Loan Documents.
"Senior Obligations" means (a) with respect to the Borrower, the
Obligations, and (b) with respect to any other Borrower Company, all monetary
obligations of such Borrower Company under the Support Documents to which it is
a party, including pursuant to the Guarantee Agreement.
"Subordinated Creditors" means each of the Parent, Holdings, the
Subsidiary Loan Parties and such other Persons as shall become parties hereto as
contemplated by Section 5.9 hereof.
"Subordinated Obligations" means the Primary Subordinated
Obligations and the Secondary Subordinated Obligations.
ARTICLE II
SUBORDINATION
SECTION 2.1. Subordination. Each Subordinated Creditor hereby
agrees that all the Subordinated Obligations of each Borrower Company are hereby
expressly subordinated, to the extent and in the manner set forth in this
Article II, to the prior payment in full in cash of all Senior Obligations of
such Borrower Company in accordance with the terms thereof.
SECTION 2.2. Dissolution or Insolvency. Upon any distribution of
the assets of any Borrower Company or upon any dissolution, winding up,
liquidation or reorganization of any Borrower Company, whether in bankruptcy,
insolvency, reorganization, arrangement or receivership proceedings or
otherwise, or upon any assignment for the benefit of creditors or any other
marshaling of the assets and liabilities of any Borrower Company, or otherwise:
(a) the Senior Creditors of such Borrower Company shall first be
entitled to receive payment in full in cash
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of the Senior Obligations of such Borrower Company in accordance with the terms
of such Senior Obligations and the Support Documents before any Subordinated
Creditor shall be entitled to receive any payment on account of the Subordinated
Obligations of such Borrower Company, whether as principal, interest or
otherwise; and
(b) any payment by, or distribution of the assets of, such
Borrower Company of any kind or character, whether in cash, property or
securities, to which any Subordinated Creditor would be entitled except for the
provisions of this Agreement shall be paid or delivered by the Person making
such payment or distribution (whether a trustee in bankruptcy, a receiver,
custodian or liquidating trustee or otherwise) directly to the Collateral Agent
to the extent necessary to make payment in full in cash of all Senior
Obligations of such Borrower Company remaining unpaid, after giving effect to
any concurrent payment or distribution to the Senior Creditors in respect of the
Senior Obligations, to be held and applied by the Collateral Agent as provided
in the Collateral Agency and Intercreditor Agreement .
SECTION 2.3. Payment of Primary Subordinated Obligations
Prohibited. (a) No payment (whether directly, by exercise of any right of
set-off or otherwise) in respect of any Primary Subordinated Obligation of any
Borrower Company, whether as principal, interest or otherwise, shall be
permitted at any time until all Senior Obligations have been paid in full.
(b) No payment of any Primary Subordinated Obligation that is
prohibited by paragraph (a) above shall be received or accepted by or on behalf
of any Subordinated Creditor.
(c) The provisions of this Section 2.3 shall not apply to the
payment of any Primary Subordinated Obligation to the extent payment thereof is
permitted at the time by each Secured Instrument and the Collateral Agency and
Intercreditor Agreement.
SECTION 2.4. Payment of Secondary Subordinated Obligations
Prohibited Upon Default. No payment (whether directly, by exercise of any right
of set-off or otherwise) in respect of the Secondary Subordinated Obligations of
any
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Borrower Company, whether as principal, interest or otherwise, shall be
permitted, and no such payment shall be received or accepted by or on behalf of
any Subordinated Creditor, if immediately prior to or after giving effect to
such payment either (a) a Notice of Enforcement is in effect or (b) an event
that with notice, lapse of time or both would entitle the Required Secured
Parties to deliver a Notice of Enforcement.
SECTION 2.5. Certain Payments Held in Trust. In the event that
any payment by, or distribution of the assets of, any Borrower Company of any
kind or character, whether in cash, property or securities, and whether
directly, by exercise of any right of set-off or otherwise, shall be received by
or on behalf of any Subordinated Creditor at a time when such payment is
prohibited by this Agreement, such payment or distribution shall be held in
trust for the benefit of, and shall be paid over to, (a) the Collateral Agent to
the extent necessary to make payment in full in cash of all Senior Obligations
of such Borrower Company remaining unpaid, after giving effect to any concurrent
payment or distribution to the Senior Creditors in respect of such Senior
Obligations, to be held and applied by the Collateral Agent as provided in the
Collateral Agency and Intercreditor Agreement or (b) in the case of any payment
prohibited under Section 2.3 or 2.4 hereof, the Borrower Company from which such
payment was received or, if directed by the Collateral Agent, to the Collateral
Agent to be held and applied by the Collateral Agent as provided in the
Collateral Agency and Intercreditor Agreement.
SECTION 2.6. Subrogation. Subject to the prior indefeasible
payment in full in cash of the Senior Obligations of a Borrower Company, the
applicable Subordinated Creditors of such Borrower Company shall be subrogated
to the rights of the Senior Creditors of such Borrower Company to receive
payments or distributions in cash, property or securities of such Borrower
Company applicable to such Senior Obligations until all amounts owing on the
Subordinated Obligations of such Borrower Company shall be paid in full, and as
between and among a Borrower Company, its creditors (other than its Senior
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Creditors) and the applicable Subordinated Creditors of such Borrower Company,
no such payment or distribution made to the Collateral Agent by virtue of this
Agreement that otherwise would have been made to the Subordinated Creditors of
such Borrower Company shall be deemed to be a payment by such Borrower Company
on account of its Subordinated Obligations, it being understood that the
provisions of this Agreement are intended solely for the purpose of defining the
relative rights of the Subordinated Creditors, on the one hand, and the Senior
Creditors, on the other hand.
ARTICLE III
OTHER MATTERS REGARDING THE SUBORDINATED OBLIGATIONS
SECTION 3.1. Other Creditors. Nothing contained in this
Agreement is intended to or shall impair, as between and among the Borrower
Companies, their creditors (other than their Senior Creditors) and the
Subordinated Creditors, the obligations of each Borrower Company to pay to the
applicable Subordinated Creditors of such Borrower Company the Subordinated
Obligations of such Borrower Company as and when the same shall become due and
payable in accordance with the terms thereof, or affect the relative rights of
the Subordinated Creditors and the other creditors of the Borrower Company
(other than their Senior Creditors).
SECTION 3.2. Proofs of Claims. In the event of any dissolution,
winding up, liquidation or reorganization of any Borrower Company, whether in
bankruptcy, insolvency, reorganization, arrangement or receivership proceedings
or otherwise, or any assignment for the benefit of creditors or any other
marshaling of the assets and liabilities of any Borrower Company, each
Subordinated Creditor agrees to file proofs of claim for the Subordinated
Obligations owed to it upon demand of the Collateral Agent, in default of which
the Collateral Agent or other authorized representative of the Senior Creditors
is hereby irrevocably authorized so to file in order to effectuate the
provisions hereof. This Section shall not be construed to permit any
Subordinated Creditor to retain any payment received by it in respect of a
Subordinated Obligation that such Subordinated Creditor is not entitled to
receive and retain under any other provision of this Agreement.
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SECTION 3.3. No Waiver. No right of any Senior Creditor to
enforce this Agreement shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of any of the Collateral Agent, the
other Senior Creditors, or any Borrower Company, or by any noncompliance by any
Borrower Company with the terms, provisions and covenants contained herein, and
the Senior Creditors are hereby expressly authorized to extend, renew, increase,
decrease, modify or amend the terms of the Senior Obligations or any security
therefor, and to release, sell or exchange any such security and otherwise deal
freely with the Borrower Companies, all without notice to or consent of any
Subordinated Creditor and without affecting the liabilities and obligations of
the parties hereto.
SECTION 3.4. Acceleration and Remedies; Bankruptcy Filings. Each
Subordinated Creditor agrees that, except for claims submitted in any proceeding
contemplated by Section 3.2 hereof, it will not exercise any remedies or take
any action or proceeding to enforce any Subordinated Obligation if the payment
of such Subordinated Obligation is then prohibited by Section 2.3 or 2.4, and
each Subordinated Creditor further agrees not to file, or to join with any other
creditors of any Borrower Company in filing, any petition commencing any
bankruptcy, insolvency, reorganization, arrangement or receivership proceeding
or any assignment for the benefit of creditors against or in respect of any
Borrower Company or any other marshaling of the assets and liabilities of any
Borrower Company. Each Subordinated Creditor further agrees, to the fullest
extent permitted under applicable law, that it will not cause any Borrower
Company to file any such petition, commence any such proceeding or make any such
assignment referred to above until all Senior Obligations have been paid in
full.
SECTION 3.5. Transfer of Subordinated Obligations. Each
Subordinated Creditor agrees that it will not sell, assign, transfer or
otherwise dispose of all or any part of the Subordinated Obligations owed to it
unless the Person to whom such sale, assignment, transfer or disposition is made
(i) is a Subordinated Creditor hereunder
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or (ii) shall acknowledge in writing (delivered to the Collateral Agent) that it
shall be bound by the terms of this Agreement, including the terms of this
Section 3.5, as though named herein as a Subordinated Creditor.
SECTION 3.6. Obligations Hereunder Not Affected. (a) All rights
and interests of the Senior Creditors hereunder, and all agreements and
obligations of the Subordinated Creditors hereunder, shall remain in full force
and effect irrespective of:
(i) any lack of validity or enforceability of any Support
Document or Secured Instrument;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Senior Obligations, or any other
amendment or waiver of or consent to departure from the Credit Agreement
or any other Senior Creditor Document (other than this Agreement);
(iii) any exchange, release or nonperfection of any security
interest in any collateral, or any release or amendment or waiver of or
consent to departure from any guarantee, in respect of all or any of the
Senior Obligations; or
(iv) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Borrower Company in respect
of its Senior Obligations or of any Subordinated Creditor in respect of
this Agreement.
(b) This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of the Senior
Obligations or any part thereof is rescinded or must otherwise be returned by
any Senior Creditor upon the insolvency, bankruptcy or reorganization of any
Borrower Company or otherwise, all as though such payment had not been made.
(c) Each Subordinated Creditor hereby authorizes the Senior
Creditors, without notice or demand and without affecting or impairing any of
the obligations of such Subordinated Creditor hereunder, from time to time to
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(i) renew, compromise, extend, increase, accelerate or otherwise change the time
for payment of, or otherwise change the terms of, the Senior Obligations or any
part thereof and (ii) exercise or refrain from exercising any rights against any
Subordinated Creditor, any Borrower Company or any other Person.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SUBORDINATED CREDITORS
Each Subordinated Creditor severally represents and warrants to
the Collateral Agent, for the benefit of the Senior Creditors, that:
(a) It is duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it is organized.
(b) The execution, delivery and performance by it of this
Agreement and the consummation of the transactions contemplated hereby are
within its powers, have been duly authorized by all necessary action on its
part, require no action by or in respect of, or filing with, any Governmental
Authority (other than such as have been duly taken or made) and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of its certificate of incorporation or by-laws (or other
organizational documents, as applicable) or of any material agreement, judgment,
injunction, order, decree or other instrument binding upon it or any of its
subsidiaries.
(c) This Agreement constitutes a valid and binding agreement of
such Subordinated Creditor, enforceable against such Subordinated Creditor in
accordance with its terms, subject to the effect of applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and equitable
principles of general applicability.
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ARTICLE V
MISCELLANEOUS
SECTION 5.1. Notices. All communications and notices hereunder
shall be in writing and shall be given as provided in Section 11.01 of the
Collateral Agency and Intercreditor Agreement; provided that any communication
or notice hereunder to any Subordinated Creditor shall be given to it at the
address or telecopy number set forth under its signature on the signature page
hereof or of the supplement hereto pursuant to which it becomes a party hereto.
SECTION 5.2. Successors and Assigns. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party. All representations,
warranties, covenants, promises and agreements by or on behalf of any
Subordinated Creditor that are contained in this Agreement shall bind its
successors and assigns and inure to the benefit of the Senior Creditors and the
successors and assigns of the Senior Creditors. Each Subordinated Creditor
agrees that it shall not assign or delegate any of its obligations under this
Agreement without the prior written consent of the Collateral Agent, and any
attempted assignment or delegation without such consent shall be void and of no
effect.
SECTION 5.3. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each Subordinated Creditor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or any other Senior Creditor
Document, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to
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the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Collateral Agent or any other Senior Creditor may otherwise have
to bring any action or proceeding relating to any Support Document against any
Subordinated Creditor or its properties in the courts of any jurisdiction.
(c) Each Subordinated Creditor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to any Support
Document in any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each Subordinated Creditor hereby irrevocably consents to
service of process in the manner provided for notices in Section 5.1. Nothing in
this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 5.4. Waivers; Amendment. No failure or delay of any
Senior Creditor in exercising any right or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power by any Senior Creditor preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the Senior
Creditors hereunder and under the other documents and instruments creating or
securing their respective Senior Obligations are cumulative and are not
exclusive of any other rights or remedies provided by law. Neither this
Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Collateral
Agent and each Subordinated Creditor and Borrower
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Company intended to be bound thereby, subject to the consents required in
accordance with Section 11.02 of the Collateral Agency and Intercreditor
Agreement.
SECTION 5.5. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO ANY SUPPORT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 5.6. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good faith negotiations to
replace any invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 5.7. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall constitute an original but all of
which, when taken together, shall constitute but one instrument; provided that
this Agreement shall be construed as a separate agreement with respect to each
Subordinated Creditor and may be amended, modified, supplemented, waived or
released with respect to any Subordinated Creditor without the approval of any
other Subordinated Creditor and without affecting the obligations of any other
Subordinated Creditor hereunder. This Agreement shall be effective with respect
to any Subordinated Creditor when a counterpart hereof (or of an
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instrument executed as provided in Section 5.9 below) which bears the signature
of such Subordinated Creditor shall have been delivered to the Collateral Agent.
SECTION 5.8. Headings. Article and Section headings used herein
are for convenience of reference only, are not part of this Agreement and are
not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 5.9. Additional Subordinated Creditors. Upon execution
and delivery by the Agent and an Affiliate of Holdings or the Borrower or a
Subsidiary Loan Party of an instrument in the form of Annex 1 attached thereto,
such Affiliate or Subsidiary Loan Party shall become a Subordinated Creditor
hereunder with the same force and effect as if originally named as a
Subordinated Creditor herein. The execution and delivery of any such instrument
shall not require the consent of any other Subordinated Creditor hereunder. The
rights and obligations of each Subordinated Creditor herein shall remain in full
force and effect notwithstanding the addition of any Subordinated Creditor as a
party to this Agreement.
SECTION 5.10. Termination. Subject to Section 3.6(b), this
Agreement shall terminate upon the termination of all Secured Instrument
Commitments and the payment in full of the Obligations.
IN WITNESS WHEREOF, the Parent, Holdings, each Subsidiary, each
License Subsidiary, the Borrower and the Collateral Agent have caused this
Agreement to be duly executed by their respective authorized representatives as
of the day and year first above written.
CRICKET WIRELESS
COMMUNICATIONS, INC.,
By
--------------------------------------
Name:
Title:
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CRICKET COMMUNICATIONS, INC.,
By
--------------------------------------
Name:
Title:
EACH SUBSIDIARY LISTED ON
SCHEDULE I HERETO,
By
--------------------------------------
Name:
Title:
Address: See Schedule I
LEAP WIRELESS INTERNATIONAL,
INC.,
By
--------------------------------------
Name:
Title:
Address:
EACH LICENSE SUBSIDIARY LISTED
ON SCHEDULE I HERETO,
By
--------------------------------------
Name:
Title:
Address: See Schedule I
STATE STREET BANK AND TRUEST
COMPANY, as Collateral Agent,
By
--------------------------------------
Name:
Title:
15
SCHEDULE I TO THE
SUBORDINATION AGREEMENT
Subordinated Creditors
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Annex 1 to the
Subordination Agreement
SUPPLEMENT NO. [ ] dated as of , to the Subordination
Agreement dated as of September 17, 1999, among CRICKET
COMMUNICATIONS, INC., a Delaware corporation ("Holdings"),
CRICKET WIRELESS COMMUNICATIONS, INC., a Delaware corporation
(the "Borrower"), LEAP WIRELESS INTERNATIONAL, INC., a Delaware
corporation (the "Parent"), each subsidiary of the Borrower
listed on Schedule I hereto (each a "Subsidiary", and,
collectively, the "Subsidiaries"), each subsidiary of the Parent
listed on Schedule I hereto (each a "License Subsidiary", and,
collectively, the "License Subsidiaries"; each Subsidiary, each
License Subsidiary, Holdings, and the Parent individually, a
"Subordinated Creditor" and collectively, the "Subordinated
Creditors"), and STATE STREET BANK AND TRUST COMPANY, as
collateral agent (in such capacity, the "Collateral Agent") for
the Secured Parties.
A. Reference is made to the (a) Collateral Agency and Intercreditor
Agreement (as defined in the Subordination Agreement) and (b) the Subordination
Agreement).
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Subordination Agreement.
C. The Subordinated Creditors and the Borrower have entered into the
Subordination Agreement in order to induce the Secured Parties to make loans
under the applicable Secured Instrument. Section 5.9 of the Subordination
Agreement provides that Affiliates of Holdings or the Borrower and additional
Subsidiary Loan Parties may become Subordinated Creditors under the
Subordination Agreement by execution and delivery of an instrument in the form
of this Supplement. The undersigned Affiliate of Holdings or the Borrower or
Subsidiary Loan Party, as the case may be, (the "New Subordinated Creditor") is
executing this Supplement to become a Subordinated Creditor under the
Subordination Agreement in order to induce the Secured Parties to make
additional loans under the applicable Secured Instruments
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and as consideration for loans previously made under the Secured Instruments.
Accordingly, the Collateral Agent and the New Subordinated Creditor
agree as follows:
SECTION 1. In accordance with Section 5.9 of the Subordination
Agreement, the New Subordinated Creditor by its signature below becomes a
Subordinated Creditor under the Subordination Agreement with the same force and
effect as if originally named therein as a Subordinated Creditor and the New
Subordinated Creditor hereby (a) agrees to all the terms and provisions of the
Subordination Agreement applicable to it as a Subordinated Creditor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Subordinated Creditor thereunder are true and correct on and as of the
date hereof except for representations and warranties which by their terms refer
to a specific date. Each reference to a "Subordinated Creditor" in the
Subordination Agreement shall be deemed to include the New Subordinated
Creditor. The Subordination Agreement is hereby incorporated herein by
reference.
SECTION 2. The New Subordinated Creditor represents and warrants to the
Collateral Agent and the other Secured Parties that this Supplement has been
duly authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity
regardless of whether considered in a proceeding in equity or at law.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Agent shall have received counterparts of this Supplement that, when
taken together, bear the signatures of the New Subordinated Creditor and the
Collateral Agent. Delivery of an executed signature page to
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this Supplement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Subordination
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Subordination Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 5.1 of the Subordination Agreement. All
communications and notices hereunder to the New Subordinated Creditor shall be
given to it at the address set forth under its signature below, with a copy to
the Borrower.
SECTION 8. The New Subordinated Creditor agrees to reimburse the
Collateral Agent for its reasonable out-of-pocket expenses in connection with
this Supplement, including the reasonable fees, disbursements and other charges
of counsel for the Collateral Agent.
IN WITNESS WHEREOF, the New Subordinated Creditor and
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the Collateral Agent have duly executed this Supplement to the Subordination
Agreement as of the day and year first above written.
[NAME OF NEW SUBORDINATED
CREDITOR],
By
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Name:
Title:
Address:
STATE STREET BANK AND TRUST
COMPANY, as Collateral Agent,
By
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Name:
Title: