AMENDED AND RESTATED PARENT GUARANTY Dated as of June 16, 2006 From LEAP WIRELESS INTERNATIONAL, INC. as Guarantor in favor of THE SECURED PARTIES REFERRED TO IN THE CREDIT AGREEMENT REFERRED TO HEREIN
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Exhibit 10.3
AMENDED AND RESTATED PARENT GUARANTY
Dated as of June 16, 2006
From
LEAP WIRELESS INTERNATIONAL, INC.
as Guarantor
in favor of
THE SECURED PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
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AMENDED AND RESTATED PARENT GUARANTY
AMENDED AND RESTATED PARENT GUARANTY dated as of June 16, 2006 made by Leap Wireless
International, Inc., a Delaware corporation (the “Guarantor”), in favor of the Secured Parties (as
defined in the Credit Agreement referred to below).
Pursuant to a request by the Borrower and the Guarantor to amend the Initial Credit Agreement,
and acceptance of such request by such lenders, the Borrower is now party to an Amended and
Restated Credit Agreement dated as of June 16, 2006 (as amended, amended and restated, supplemented
or otherwise modified from time to time, the “Credit Agreement”; the capitalized terms defined
therein and not otherwise defined herein being used herein as therein defined) with certain Lender
Parties party thereto and Bank of America, N.A., as Administrative Agent for such Lender Parties.
The Guarantor may receive, directly or indirectly, a portion of the proceeds of the Loans under the
Credit Agreement and will derive substantial direct and indirect benefits from the transactions
contemplated by the Credit Agreement. It is a condition precedent to the making of Loans and the
issuance of Letters of Credit by the Lender Parties under the Credit Agreement and the entry by the
Hedge Banks into Secured Hedge Agreements from time to time that the Guarantor shall have executed
and delivered this Amended and Restated Parent Guaranty (the “Guaranty”).
Section 1. Guaranty. (a) The Guarantor hereby absolutely, unconditionally and
irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date
of a required prepayment or by acceleration, demand or otherwise, of all Obligations of each other
Loan Party now or hereafter existing under or in respect of the Loan Documents (including, without
limitation, any extensions, modifications, substitutions, amendments or renewals of any
or all of the foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs,
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expenses or otherwise (such Obligations being the “Guaranteed Obligations”), and agrees to pay any
and all expenses (including, without limitation, fees and expenses of counsel) incurred by the
Administrative Agent or any other Secured Party in enforcing any rights under this Guaranty or any
other Loan Document. Without limiting the generality of the foregoing, the Guarantor’s liability
shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by
any other Loan Party to any Secured Party under or in respect of the Loan Documents but for the
fact that they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Loan Party.
(b) The Guarantor hereby unconditionally and irrevocably agrees that in the event any payment
shall be required to be made to any Secured Party under this Guaranty or the Subsidiary Guaranty or
any other guaranty, the Guarantor will contribute, to the maximum extent permitted by law, such
amounts to each other guarantor so as to maximize the aggregate amount paid to the Secured Parties
under or in respect of the Loan Documents.
Section 2. Guaranty Absolute. The Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of any Secured Party with respect thereto. The Obligations of the Guarantor
under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan Documents, and a separate
action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or actions. The
liability of the Guarantor under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and the Guarantor hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or any agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other term of, all
or any of the Guaranteed Obligations or any other Obligations of any other Loan Party under
or in respect of the Loan Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to any Loan Party
or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral or any other
collateral, or any taking, release or amendment or waiver of, or consent to departure from,
any other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any Collateral or any other collateral for all or any of the Guaranteed
Obligations or any other Obligations of any Loan Party under the Loan Documents or any other
assets of any Loan Party or any of its Subsidiaries;
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(e) any change, restructuring or termination of the corporate structure or existence of
any Loan Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Loan Party any information
relating to the business, condition (financial or otherwise), operations, performance,
properties or prospects of any other Loan Party now or hereafter known to such Secured Party
(the Guarantor waiving any duty on the part of the Secured Parties to disclose such
information);
(g) the failure of any other Person to execute or deliver any other guaranty or
agreement or the release or reduction of liability of any other guarantor or surety with
respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by any Secured Party that might
otherwise constitute a defense available to, or a discharge of, any Loan Party or any other
guarantor or surety (other than indefeasible payment in full of the Guaranteed Obligations).
This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any
Secured Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower
or any other Loan Party or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) The Guarantor hereby unconditionally
and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for
performance, notice of nonperformance, default, acceleration, protest or dishonor and any other
notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that
any Secured Party protect, secure, perfect or insure any Lien or any property subject thereto or
exhaust any right or take any action against any Loan Party or any other Person or any Collateral.
(b) The Guarantor hereby unconditionally and irrevocably waives any right to revoke this
Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.
(c) The Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by
reason of any claim or defense based upon an election of remedies by any Secured Party that in any
manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of the Guarantor or other rights of the
Guarantor to proceed against any of the other Loan Parties, any other
guarantor or any other Person or any Collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the Obligations of the Guarantor hereunder.
(d) The Guarantor acknowledges that the Collateral Agent may, without notice to or demand upon
the Guarantor and without affecting the liability of the Guarantor under this Guaranty, foreclose
under any mortgage by nonjudicial sale, and the Guarantor hereby waives any defense to the recovery
by the Collateral Agent and the other Secured Parties against the
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Guarantor of any deficiency after
such nonjudicial sale and any defense or benefits that may be afforded by applicable law.
(e) The Guarantor hereby unconditionally and irrevocably waives any duty on the part of any
Secured Party to disclose to the Guarantor any matter, fact or thing relating to the business,
condition (financial or otherwise), operations, performance, properties or prospects of any other
Loan Party or any of its Subsidiaries now or hereafter known by such Secured Party.
(f) The Guarantor acknowledges that it will receive substantial direct and indirect benefits
from the financing arrangements contemplated by the Loan Documents and that the waivers set forth
in Section 2 and this Section 3 are knowingly made in contemplation of such benefits.
Section 4. Subrogation. The Guarantor hereby unconditionally and irrevocably agrees
not to exercise any rights that it may now have or hereafter acquire against the Borrower, any
other Loan Party or any other insider guarantor that arise from the existence, payment, performance
or enforcement of the Guarantor’s Obligations under or in respect of this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or remedy of any Secured
Party against the Borrower, any other Loan Party or any other insider guarantor or any Collateral,
whether or not such claim, remedy or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive from the Borrower, any other Loan
Party or any other insider guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim, remedy or right, in
each case unless and until all of the Guaranteed Obligations and all other amounts payable under
this Guaranty shall have been paid in full in cash, all Letters of Credit and all Secured Hedge
Agreements shall have expired or been terminated and the Commitments shall have expired or been
terminated. If any amount shall be paid to the Guarantor in violation of the immediately preceding
sentence at any time prior to the latest of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (b) the Maturity Date and (c) the
latest date of expiration or termination of all Letters of Credit and all Secured Hedge Agreements,
such amount shall be received and held in trust for the benefit of the Secured Parties, shall be
segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered
to the Administrative Agent in the same form as so received (with any necessary endorsement or
assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable
under this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any Guaranteed Obligations and all other amounts payable
under this Guaranty
thereafter arising. If (i) the Guarantor shall make payment to any Secured Party of all or
any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall have been paid in full in cash, (iii) the Maturity Date
shall have occurred and (iv) all Letters of Credit and all Secured Hedge Agreements shall have
expired or been terminated, the Secured Parties will, at the Guarantor’s request and expense,
execute and deliver to the Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of
an interest in the Guaranteed Obligations resulting from such payment made by the Guarantor
pursuant to this Guaranty.
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Section 5. Payments Free and Clear of Taxes, Etc. Any and all payments made by the
Guarantor under or in respect of this Guaranty or any other Loan Document shall be made, free and
clear of and without deduction for any and all present or future Indemnified Taxes or Other Taxes
on the same terms and to the same extent that payments by the Borrower are required to be made free
and clear of Indemnified Taxes or Other Taxes pursuant to the terms of the Credit Agreement.
Section 6. Representations and Warranties. The Guarantor hereby represents and
warrants as follows:
(a) There are no conditions precedent to the effectiveness of this Guaranty that have
not been satisfied or waived.
(b) The Guarantor has, independently and without reliance upon any Secured Party and
based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Guaranty and each other Loan Document to which it
is or is to be a party, and the Guarantor has established adequate means of obtaining from
each other Loan Party on a continuing basis information pertaining to, and is now and on a
continuing basis will be completely familiar with, the business, condition (financial or
otherwise), operations, performance, properties and prospects of such other Loan Party.
Section 7. Covenants. The Guarantor covenants and agrees that, so long as any part
of the Guaranteed Obligations shall remain unpaid, any Letter of Credit shall be outstanding, any
Lender Party shall have any Commitment or any Secured Hedge Agreement shall be in effect, the
Guarantor will perform and observe, and cause the Borrower and each of its Subsidiaries to perform
and observe, all of the terms, covenants and agreements set forth in the Loan Documents on its or
their part to be performed or observed or that the Borrower has agreed to cause its Subsidiaries to
perform or observe.
Section 8. Amendments, Etc. No amendment, modification or waiver of any provision
of this Guaranty and no consent to any departure by the Guarantor therefrom shall in any event be
effective unless the
same shall be in writing and signed by the Administrative Agent and the Required Lenders and,
in the case of any amendment or modification, the Guarantor, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and signed by all of the
Secured Parties (other than any Lender Party that is, at such time, a Defaulting Lender), (a)
reduce or limit the obligations of the Guarantor hereunder, release the Guarantor hereunder or
otherwise limit the Guarantor’s liability with respect to the Obligations owing to the Secured
Parties under or in respect of the Loan Documents, (b) postpone any date fixed for payment
hereunder or (c) change the number of Secured Parties or the percentage of (x) the Commitments, (y)
the aggregate unpaid principal amount of the Loans or (z) the aggregate Available Amount of
outstanding Letters of Credit that, in each case, shall be required for the Secured Parties or any
of them to take any action hereunder.
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Section 9. Notices, Etc. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telecopy or telex communication) and mailed,
telegraphed, telecopied, telexed or delivered to it, if to the Guarantor, addressed to it in care
of the Borrower at the Borrower’s address specified in Schedule 10.02 of the Credit Agreement, if
to any Agent, at its address specified in Schedule 10.02 of the Credit Agreement, if to any other
Lender Party, at its address specified in its Administrative Questionnaire, if to any Hedge Bank,
at its address specified in the Secured Hedge Agreement to which it is a party, or, as to any
party, at such other address as shall be designated by such party in a written notice to each other
party. All such notices and other communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph company, transmitted
by telecopier or confirmed by telex answerback, respectively. Delivery by telecopier of an
executed counterpart of a signature page to any amendment or waiver of any provision of this
Guaranty shall be effective as delivery of an original executed counterpart thereof.
Section 10. No Waiver; Remedies. No failure on the part of any Secured Party to
exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 11. Right of Set-off. Upon both (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the granting of the
consent specified by Section 8.02 of the Credit Agreement to authorize the Administrative Agent to
take the actions described therein, each Agent, each Lender and each L/C Issuer and each of their
respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing by such Agent, such
Lender, such L/C Issuer or such Affiliate to or for the credit or the account of the Guarantor
against any and all of
the Obligations of the Guarantor now or hereafter existing under the Loan Documents,
irrespective of whether such Agent, such Lender or such L/C Issuer shall have made any demand under
this Guaranty or any other Loan Document and although such Obligations may be unmatured. Each
Agent, each Lender and each L/C Issuer agrees promptly to notify the Guarantor after any such
set-off and application; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each Agent and each Lender Party and
their respective Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Agent, such Lender Party and
their respective Affiliates may have.
Section 12. Indemnification. (a) Without limitation on any other Obligations of
the Guarantor or remedies of the Secured Parties under this Guaranty, the Guarantor shall, to the
fullest extent permitted by law, indemnify, defend and save and hold harmless each Secured Party
and each of their Affiliates and their respective officers, directors, employees, agents and
advisors (each, an “Indemnified Party”) from and against, and shall pay on demand, any and all
claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees
and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified
Party in connection with or as a result of any failure of any Guaranteed Obligations to be the
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legal, valid and binding obligations of any Loan Party enforceable against such Loan Party in
accordance with their terms.
(b) The Guarantor hereby also agrees that none of the Indemnified Parties shall have any
liability (whether direct or indirect, in contract, tort or otherwise) to the Guarantor or any of
its Affiliates or any of their respective officers, directors, employees, agents and advisors, and
the Guarantor hereby agrees not to assert any claim against any Indemnified Party on any theory of
liability, for special, indirect, consequential or punitive damages arising out of or otherwise
relating to the Facilities, the actual or proposed use of the proceeds of the Loans or the Letters
of Credit, the Transaction Documents or any of the transactions contemplated by the Transaction
Documents.
(c) Without prejudice to the survival of any of the other agreements of the Guarantor under
this Guaranty or any of the other Loan Documents, the agreements and obligations of the Guarantor
contained in Section 1(a) (with respect to enforcement expenses), the last sentence of Section 2,
Section 5 and this Section 12 shall survive the payment in full of the Guaranteed Obligations and
all of the other amounts payable under this Guaranty.
Section 13. Subordination. The Guarantor hereby subordinates any and all debts,
liabilities and other Obligations owed to the Guarantor by each other Loan Party (the “Subordinated
Obligations”) to the Guaranteed Obligations to the extent and in the manner hereinafter set forth
in this Section 13:
(a) Prohibited Payments, Etc. Except during the continuance of an Event of
Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), the Guarantor may receive payments
from any other Loan Party on account of the Subordinated Obligations. After the occurrence
and during the continuance of any Event of Default (including the commencement and
continuation of any proceeding under any Bankruptcy Law relating to any other Loan Party),
however, unless the Administrative Agent otherwise agrees and except with respect to
transactions between and among Loan Parties that are not by the terms of the Credit
Agreement prohibited from being consummated after the occurrence of an Event of Default, the
Guarantor shall not demand, accept or take any action to collect any payment on account of
the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under any
Bankruptcy Law relating to any other Loan Party, the Guarantor agrees that the Secured
Parties shall be entitled to receive payment in full in cash of all Guaranteed Obligations
(including all interest and expenses accruing after the commencement of a proceeding under
any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding (“Post
Petition Interest”)) before the Guarantor receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any Event of
Default (including the commencement and continuation of any proceeding under any Bankruptcy
Law relating to any other Loan Party), the Guarantor shall, if the Administrative Agent so
requests and except with respect to transactions between and
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among Loan Parties that are not
by the terms of the Credit Agreement prohibited from being consummated after the occurrence
of an Event of Default, collect, enforce and receive payments on account of the Subordinated
Obligations as trustee for the Secured Parties and deliver such payments to the
Administrative Agent on account of the Guaranteed Obligations (including all Post Petition
Interest), together with any necessary endorsements or other instruments of transfer, but
without reducing or affecting in any manner the liability of the Guarantor under the other
provisions of this Guaranty.
(d) Administrative Agent Authorization. After the occurrence and during the
continuance of any Event of Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), the Administrative
Agent is authorized and empowered (but without any obligation to so do), in its discretion,
(i) in the name of the Guarantor, to collect and enforce, and to submit claims in respect
of, Subordinated Obligations and to apply any amounts received thereon to the Guaranteed
Obligations (including any and all Post Petition Interest), and (ii) to require the
Guarantor (A) to collect and enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such obligations to the Administrative
Agent for application to the Guaranteed Obligations (including any and all Post Petition
Interest).
Section 14. Continuing Guaranty; Assignments under the Credit Agreement. This
Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the latest of
(i) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under
this Guaranty, (ii) the Maturity Date and (iii) the latest date of expiration
or termination of all Letters of Credit and all Secured Hedge Agreements, (b) be binding upon
the Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the
Secured Parties and their successors, transferees and assigns. Without limiting the generality of
clause (c) of the immediately preceding sentence, any Secured Party may assign or otherwise
transfer all or any portion of its rights and obligations under the Credit Agreement (including,
without limitation, all or any portion of its Commitments, the Loans owing to it and the Note or
Notes held by it) subject to compliance with Section 10.06 of the Credit Agreement, and each such
permitted assignee or transferee shall thereupon become vested with all the benefits in respect
thereof granted to such Secured Party herein or otherwise, in each case as and to the extent
provided in Section 10.06 of the Credit Agreement. The Guarantor shall not have the right to
assign its rights hereunder or any interest herein without the prior written consent of the Secured
Parties.
Section 15. Execution in Counterparts. This Guaranty and each amendment, waiver and
consent with respect hereto may be executed in any number of counterparts and by different parties
thereto 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. Delivery of an
executed counterpart of a signature page to this Guaranty by telecopier shall be effective as
delivery of an original executed counterpart of this Guaranty.
Section 16. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a) This
Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.
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(b) The Guarantor hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any New York State court or federal court of the United States
of America sitting in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Guaranty or any of the other Loan Documents to which
it is or is to be a party, or for recognition or enforcement of any judgment, and the Guarantor
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to the extent permitted
by law, in such federal court. The Guarantor 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 Guaranty or any other Loan Document shall
affect any right that any party may otherwise have to bring any action or proceeding relating to
this Guaranty or any other Loan Document in the courts of any jurisdiction.
(c) The Guarantor irrevocably and unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Guaranty or any of the other Loan
Documents to which it is or is to be a party in any New York State or federal court. The Guarantor
hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such suit, action or proceeding in any such court.
(d) THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS, THE LOANS OR THE ACTIONS OF ANY SECURED PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
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| LEAP WIRELESS INTERNATIONAL, INC. | ||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: Xxxx X. Xxxxxx | ||||
| Title: Acting Chief Financial Officer | ||||