THIRD SUPPLEMENTAL INDENTURE
Exhibit
4.3.2
This THIRD SUPPLEMENTAL INDENTURE dated as of April 30, 2007 (this “Supplemental Indenture”)
among Cricket Communications, Inc., a Delaware corporation (the “Company”), the Guarantors listed
on the signature pages hereto (the “Guarantors”) and Xxxxx Fargo Bank, N.A., a national banking
association, as trustee (the “Trustee”) under the Indenture referred to below.
WITNESSETH:
WHEREAS, the Company, the Guarantors and the Trustee have heretofore executed and delivered an
Indenture dated as of October 23, 2006 (as previously supplemented, the “Indenture”), providing for
the initial issuance of an aggregate principal amount of $750.0 million of 9.375% Senior Notes due
2014 of the Company (the “Notes”);
WHEREAS, pursuant to Section 9.01 of the Indenture, the Indenture may be amended without the
consent of any Noteholder to conform the text of the Indenture to any provision of the “Description
of Notes” in the Offering Memorandum of the Company dated October 18, 2006 to the extent such
provision in the “Description of Notes” was intended to be a verbatim recitation of a provision of
the Indenture; and
WHEREAS, the Company has identified certain provisions in the Offering Memorandum that were
intended to be verbatim recitations of provisions in the Indenture but that were not properly
reflected as such in the Indenture, and the Company wishes to correct and conform such provisions
in 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 Company, the Guarantors and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Noteholders as
follows:
ARTICLE I
Definitions
Definitions
SECTION 1.1 Defined Terms. As used in this Supplemental Indenture, terms defined in the
Indenture or in the preamble or recitals hereto are used herein as therein defined. The words
“herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental
Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
Amendments to Indenture
Amendments to Indenture
SECTION 2.1 Amendments. Certain provisions of the Indenture are hereby amended as follows:
(a) Amendments to Article One.
(i) Clause (7) of the definition of “Asset Sale” in the Indenture shall be deleted in its
entirety and shall be replaced with the following:
“(7) a Restricted Payment that is permitted by Section 4.07 and any Permitted
Investment;”
(ii) Clause (10) of the definition of “Asset Sale” in the Indenture shall be deleted in its
entirety and shall be replaced with the following:
“(10) the licensing of intellectual property or other general intangibles (other than
FCC Licenses) to third persons on terms approved by the Board of Directors of the Parent or
the Company in good faith and in the ordinary course of business.”
(iii) The proviso at the end of the last paragraph of the definition of “Consolidated Cash
Flow” in the Indenture shall be deleted in its entirety and shall be replaced with the following:
“provided that such corresponding restrictions on dividends or distributions, as the case
may be, included therein are no more restrictive than the applicable restrictions on
dividends or distributions in the agreement or instrument being amended, restated, modified,
renewed, refunded, replaced or refinanced).”
(iv) The proviso at the end of clause (2) of the definition of “Consolidated Net Income” in
the Indenture shall be deleted in its entirety and shall be replaced with the following:
“provided that such corresponding restrictions on dividends or distributions, as the case
may be, included therein are no more restrictive than the applicable restrictions on
dividends or distributions in the agreement or instrument being amended, restated, modified,
renewed, refunded, replaced or refinanced).”
(v) The definition of “GAAP” in the Indenture shall be deleted in its entirety and shall be
replaced with the following:
“GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified
Public Accountants, the opinions and pronouncements of the Public Company Accounting
Oversight Board and in the statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been approved by a
significant segment of the accounting profession, which are in effect on the Issue Date.”
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(b) Amendments to Article Four.
(i) The phrase “Section 4.14” appearing at the end of Section 4.09(b)(i) of the Indenture
shall be deleted in its entirety and shall be replaced with the phrase “Section 4.10”.
(ii) Section 4.09(b)(v) of the Indenture shall be deleted in its entirety and shall be
replaced with the following:
“(v) the Incurrence by the Parent or any Restricted Subsidiary of the Parent of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to
refund, refinance, replace, defease or discharge Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be Incurred under Section 4.09(a) or
Section 4.09(b)(ii), (iii), (iv), (v), (xii) or (xiv);”
(iii) The last paragraph of Section 4.09(b) of the Indenture shall be deleted in its entirety
and shall be replaced with the following:
“For purposes of determining compliance with this Section 4.09, in the event that any
proposed Indebtedness (including Acquired Indebtedness) meets the criteria of more than one
of the categories of Permitted Debt described in clauses (i) through (xiv) of Section
4.09(b), or is entitled to be Incurred pursuant to Section 4.09(a), the Parent shall be
permitted to divide and classify such item of Indebtedness at the time of its Incurrence in
any manner that complies with this Section 4.09 and may later redivide and/or reclassify all
or a portion of such item of Indebtedness in any manner that complies with this Section
4.09. Notwithstanding the foregoing, Indebtedness under the Credit Agreement outstanding on
the Issue Date shall be deemed to have been Incurred on such date in reliance on the
exception provided by Section 4.09(b)(i).”
(iv) Section 4.10 of the Indenture shall be amended by inserting the following new subsection
(e) at the end of such section:
“(e) The Company shall comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with each repurchase of Notes pursuant to an Asset
Sale Offer. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of Section 3.08 hereof or this Section 4.10, the Company will
comply with the applicable securities laws and regulations and will not be deemed to have
breached its obligations under Section 3.08 hereof or this Section 4.10 by virtue of such
compliance.”
(v) Section 4.14(a) of the Indenture shall be amended by inserting the following sentences at
the end of such section:
“The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of
Control. To the extent that the provisions of any securities laws or regulations conflict
with the provisions of Section 3.08 hereof or this Section 4.14, the Company will
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comply with the applicable securities laws and regulations and will not be deemed to have
breached its obligations under Section 3.08 hereof or this Section 4.14 by virtue of such
compliance.”
(c) Amendment to Article Nine.
(i) Section 9.01 of the Indenture shall be amended by renumbering the existing subsection
(b) thereof as subsection (a)(ix) and by renumbering the existing subsection (c) thereof as
subsection (b).
ARTICLE III
Miscellaneous
Miscellaneous
SECTION 3.1 Parties. Nothing expressed or mentioned herein is intended or shall be construed
to give any Person, firm or corporation, other than the parties hereto and the Holders, any legal
or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the
Indenture or any provision herein or therein contained.
SECTION 3.2 NEW YORK LAW TO GOVERN. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
SECTION 3.3 Severability Clause. In case any provision in this Supplemental Indenture shall
be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 3.4 Ratification of Indenture; Supplemental Indenture 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 Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore
or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no
representation or warranty as to the validity or sufficiency of this Supplemental Indenture.
SECTION 3.5 Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 3.6 Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 3.7 Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by the Company and the Guarantors.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be
duly executed as of the date first above written.
| CRICKET COMMUNICATIONS, INC. |
||||
| By: | /s/ AMIN KHALIFA | |||
| Name: | Amin Khalifa | |||
| Title: | CFO | |||
| LEAP WIRELESS INTERNATIONAL, INC. |
||||
| By: | /s/ AMIN KHALIFA | |||
| Name: | Amin Khalifa | |||
| Title: | CFO | |||
| Xxxxxxxx.xxx, Inc. | ||
| Telephone Entertainment Network, Inc. | ||
| Cricket Licensee (Reauction), Inc. | ||
| Cricket Licensee I, Inc. | ||
| Chasetel Real Estate Holding Company, Inc. | ||
| Cricket Alabama Property Company | ||
| Cricket Arizona Property Company | ||
| Cricket Arkansas Property Company | ||
| Cricket California Property Company | ||
| Cricket Colorado Property Company | ||
| Cricket Florida Property Company | ||
| Cricket Georgia Property Company, Inc. | ||
| Cricket Idaho Property Company | ||
| Cricket Illinois Property Company | ||
| Cricket Indiana Property Company | ||
| Cricket Kansas Property Company | ||
| Cricket Kentucky Property Company | ||
| Cricket Michigan Property Company | ||
| Cricket Minnesota Property Company | ||
| Cricket Mississippi Property Company | ||
| Cricket Nebraska Property Company | ||
| Cricket Nevada Property Company | ||
| Cricket New Mexico Property Company | ||
| Cricket New York Property Company | ||
| Cricket North Carolina Property Company | ||
| Cricket Ohio Property Company | ||
| Cricket Oklahoma Property Company | ||
| Cricket Oregon Property Company | ||
| Cricket Pennsylvania Property Company |
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| Cricket Texas Property Company | ||
| Cricket Utah Property Company | ||
| Cricket Washington Property Company | ||
| Cricket Wisconsin Property Company | ||
| Leap PCS Mexico, Inc. | ||
| Alaska Native Broadband 1, LLC | ||
| Alaska Native Broadband 1 License, LLC |
| By: Name: Title: |
/s/ AMIN KHALIFA
CFO |
| Xxxxx Fargo Bank, N.A., as Trustee |
||||
| By: | /s/ XXXX X. XXXXXXX | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
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