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EXHIBIT 10.26.4
EXHIBIT D
INDEMNITY, SUBROGATION and CONTRIBUTION AGREEMENT dated
as of September 17, 1999, among CRICKET WIRELESS COMMUNICATIONS,
INC., a Delaware corporation (the "Borrower"), each subsidiary
of the Borrower listed on Schedule I hereto (each a
"Subsidiary", and, collectively, the "Subsidiaries") each
subsidiary of Leap Wireless International, Inc., a Delaware
corporation (the "Parent") listed on Schedule I hereto (each a
"License Subsidiary", and, collectively, the "License
Subsidiaries"; each such Subsidiary and each such License
Subsidiary individually, a "Guarantor" and, collectively, the
"Guarantors") and STATE STREET BANK AND TRUST COMPANY, as
collateral agent (in such capacity, the "Collateral Agent") for
the Secured Parties.
Reference is made to (a) 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 and (b) the Guarantee Agreement and the other
Support Documents. Capitalized terms used herein and not defined herein shall
have the meanings assigned to such terms in the Collateral Agency and
Intercreditor Agreement. Each Guarantor 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 Guarantors have guaranteed such Loans and the other Obligations pursuant to
the Guarantee Agreement; certain Guarantors have granted Liens on and security
interests in certain of their assets to secure the Obligations pursuant to the
Security Documents. The obligations of the Lenders to make Loans are conditioned
on, among other things, the execution and delivery by the Borrower, the
Guarantors and the Collateral Agent of an agreement in the form hereof.
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The Borrower may from time to time incur Permitted Additional Obligations that
are required to be guaranteed pursuant to the Guarantee Agreement and secured
under the Security Documents.
Accordingly, the Borrower, each Guarantor and the Collateral Agent agree
as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 3), the Borrower agrees that (a) in the event a payment shall
be made by any Guarantor under the Guarantee Agreement, the Borrower shall
indemnify such Guarantor for the full amount of such payment and such Guarantor
shall be subrogated to the rights of the Person to whom such payment shall have
been made to the extent of such payment and (b) in the event any assets of any
Guarantor shall be sold pursuant to any Security Document to satisfy a claim of
any Secured Party, the Borrower shall indemnify such Guarantor in an amount
equal to the greater of the book value or the fair market value of the assets so
sold.
SECTION 2. Contribution and Subrogation. Each Guarantor (a "Contributing
Guarantor") agrees (subject to Section 3) that, in the event a payment shall be
made by any other Guarantor under the Guarantee Agreement or assets of any other
Guarantor shall be sold pursuant to any Security Document to satisfy a claim of
any Secured Party and such other Guarantor (the "Claiming Guarantor") shall not
have been fully indemnified by the Borrower as provided in Section 1, the
Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal
to the amount of such payment or the greater of the book value or the fair
market value of such assets, as the case may be, in each case multiplied by a
fraction of which the numerator shall be the net worth of the Contributing
Guarantor on the date hereof and the denominator shall be the aggregate net
worth of all the Guarantors on the date hereof (or, in the case of any Guarantor
becoming a party hereto pursuant to Section 12, the date of the Supplement
hereto executed and delivered by such Guarantor). Any Contributing Guarantor
making any payment to a Claiming Guarantor pursuant to this Section 2 shall be
subrogated to the rights of such Claiming Guarantor under Section 1 to the
extent of such payment.
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SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 1 and 2
and all other rights of indemnity, contribution or subrogation under applicable
law or otherwise shall be fully subordinated to the indefeasible payment in full
in cash of all Obligations which are then due and payable whether at maturity,
by acceleration or otherwise. No failure on the part of the Borrower or any
Guarantor to make the payments required by Sections 1 and 2 (or any other
payments required under applicable law or otherwise) shall in any respect limit
the obligations and liabilities of any Guarantor with respect to its obligations
hereunder, and each Guarantor shall remain liable for the full amount of the
obligations of such Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash, and so long as any of the Secured Instrument
Commitments have not been terminated, and shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any Obligation is rescinded or must otherwise be restored by any Secured Party
or any Guarantor upon the bankruptcy or reorganization of the Borrower, any
Guarantor or otherwise.
SECTION 5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. No Waiver; Amendment. (a) No failure on the part of the
Collateral Agent or any Guarantor to exercise, and no delay in exercising, any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or remedy by the
Collateral Agent or any Guarantor preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law. None of
the Collateral Agent and the Guarantors shall be deemed to have waived any
rights hereunder unless such waiver shall be in writing and signed by such
parties.
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(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Borrower, the Guarantor or Guarantors with respect to which such waiver,
amendment or modification is to apply and the Collateral Agent, subject to any
consents required in accordance with Section 11.02 of the Collateral Agency and
Intercreditor Agreement.
SECTION 7. Notices. All communications and notices hereunder shall be in
writing and given as provided in the Guarantee Agreement and addressed as
specified therein.
SECTION 8. Binding Agreement; Assignments. 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; and all covenants, promises
and agreements by or on behalf of the parties that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns. Neither the Borrower nor any Guarantor may assign or transfer any of
its rights or obligations hereunder (and any such attempted assignment or
transfer shall be void), except as expressly contemplated by this Agreement or
the other Support Documents. Notwithstanding the foregoing, at the time any
Guarantor is released from its obligations under the Guarantee Agreement and any
Security Documents to which it is a party in accordance with the Support
Documents and the Secured Instruments, such Guarantor will cease to have any
rights or obligations under this Agreement.
SECTION 9. Survival of Agreement; Severability. (a) All covenants and
agreements made by the Borrower and each Guarantor herein and in the
certificates or other instruments prepared or delivered in connection with this
Agreement or the other Support Documents shall be considered to have been relied
upon by the Collateral Agent, the other Secured Parties and each Guarantor and
shall survive the extension of credit by any Secured Party pursuant to the
Secured Instruments and shall continue in full force and effect until this
agreement shall terminate.
(b) In case any one or more of the provisions contained in this
Agreement should be held invalid, illegal
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or unenforceable in any respect, no party hereto shall be required to comply
with such provision for so long as such provision is held to be invalid, illegal
or unenforceable, but 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 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 10. Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement shall be effective with respect to any Guarantor
when a counterpart bearing the signature of such Guarantor shall have been
delivered to the Collateral Agent. Delivery of an executed signature page to
this Agreement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Agreement.
SECTION 11. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Collateral Agency and Intercreditor Agreement
shall be applicable to this Agreement.
SECTION 12. Additional Guarantors. Upon execution and delivery, after
the date hereof, by the Collateral Agent and a Subsidiary Loan Party of an
instrument in the form of Annex 1 hereto, such Subsidiary Loan Party shall
become a Guarantor hereunder with the same force and effect as if originally
named as a Guarantor hereunder. The execution and delivery of any instrument
adding an additional Guarantor as a party to this Agreement shall not require
the consent of any Guarantor hereunder. The rights and obligations of each
Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Guarantor as a party to this Agreement. This Agreement may
be waived, amended or modified with respect to any one or more Guarantors and
any one or more Guarantors may be released from its obligations hereunder
without the consent or agreement of any other Guarantor.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first appearing above.
CRICKET WIRELESS
COMMUNICATIONS, INC.,
By
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Name:
Title:
EACH SUBSIDIARY LISTED ON
SCHEDULE I,
By
--------------------------------------
Name:
Title:
EACH LICENSE SUBSIDIARY LISTED
ON SCHEDULE I,
By
--------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Collateral Agent,
By
--------------------------------------
Name:
Title:
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Schedule I to the
Indemnity, Subrogation and
Contribution Agreement
GUARANTORS
Guarantor Address
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Annex 1 to the
Indemnity, Subrogation and
Contribution Agreement
SUPPLEMENT NO. [ ] dated as of [ ], to the Indemnity,
Subrogation and Contribution Agreement dated as of September 17,
1999 (as the same may be amended, supplemented or otherwise
modified from time to time, the "Indemnity, Subrogation and
Contribution Agreement"), among CRICKET WIRELESS COMMUNICATIONS,
INC., a Delaware corporation (the "Borrower"),each subsidiary of
the Borrower listed on Schedule I thereto (each a "Subsidiary",
and, collectively, the "Subsidiaries") each subsidiary of Leap
Wireless International, Inc., a Delaware corporation (the
"Parent") listed on Schedule I thereto (each a "License
Subsidiary", and, collectively, the "License Subsidiaries"; each
such Subsidiary and each such License Subsidiary individually, a
"Guarantor" and, collectively, the "Guarantors") 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 (a) the Collateral Agency and Intercreditor
Agreement (as defined in the Indemnity, Subrogation and Contribution Agreement)
and (b) the Indemnity, Subrogation and Contribution Agreement.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Indemnity, Subrogation and
Contribution Agreement.
C. The Borrower and the Guarantors have entered into the Indemnity,
Subrogation and Contribution Agreement in order to induce the Secured Parties to
make loans under the applicable Secured Instruments. Section 12 of the
Indemnity, Subrogation and Contribution Agreement provides that additional
Subsidiary Loan Parties may become Guarantors under the Indemnity, Subrogation
and Contribution
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Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned Subsidiary Loan Party of the Borrower (the "New
Guarantor") is executing this Supplement in accordance with the requirements of
the Credit Agreement to become a Guarantor under the Indemnity, Subrogation and
Contribution Agreement in order to induce the Secured Parties to make additional
loans under the applicable Secured Instruments and as consideration for Loans
previously made under the Secured Instruments.
Accordingly, the Collateral Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 12 of the Indemnity, Subrogation
and Contribution Agreement, the New Guarantor by its signature below becomes a
Guarantor under the Indemnity, Subrogation and Contribution Agreement with the
same force and effect as if originally named therein as a Guarantor and the New
Guarantor hereby agrees to all the terms and provisions of the Indemnity,
Subrogation and Contribution Agreement applicable to it as a Guarantor
thereunder. Each reference to a "Guarantor" in the Indemnity, Subrogation and
Contribution Agreement shall be deemed to include the New Guarantor. The
Indemnity, Subrogation and Contribution Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Guarantor 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.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different 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 Guarantor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
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SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution 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,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Indemnity, Subrogation and Contribution Agreement shall not in
any way be affected or impaired. 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 7 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature.
SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent
for its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
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IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have duly
executed this Supplement to the Indemnity, Subrogation and Contribution
Agreement as of the day and year first above written.
[NAME OF NEW GUARANTOR],
By
--------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Collateral Agent,
By
--------------------------------------
Name:
Title:
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Schedule I to Supplement No. [ ]
to the Indemnity, Subrogation and
Contribution Agreement
GUARANTORS
Name Address
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