EXHIBIT 4.6.3
LIMITED WAIVER
THIS LIMITED WAIVER (this "Limited Waiver") is made and entered into as
of February 20, 2003, by and among LEAP WIRELESS INTERNATIONAL, INC., a Delaware
corporation (the "Company"), each GUARANTOR under the Indenture identified below
(collectively, the "Guarantors"), and U.S. BANK NATIONAL ASSOCIATION, as
trustee.
Reference is made to:
the Indenture (as amended and supplemented to date, the
"Indenture"), dated as of February 23, 2000, among the Company,
Cricket Communications Holdings, Inc., the other Guarantors
thereunder, and U.S. Bank National Association (successor to State
Street Bank and Trust Company), as Trustee (the "Trustee");
the Secured Promissory Note, dated April 9, 2002, in the original
principal amount of Eight Million Three Hundred Eighty Three
Thousand Nine Hundred Forty One Dollars and Seventy Cents
($8,383,941.70), executed by the Company in favor of GLH
Communications, Inc. (the "April 2002 Note");
the Pledge Agreement, dated as of April 9, 2002, between the Company
and GLH Communications, Inc. (the "Pledge Agreement"); and
the January 31, 2003 scheduled payment of principal and interest
owed by the Company in the amount of Six Hundred Five Thousand Three
Hundred Seventeen Dollars and Four Cents ($605,317.04) under the
April 2002 Note and the Pledge Agreement (the "Payment").
Terms used in this Limited Waiver with initial capital lettering and not defined
herein are used herein as defined in the Indenture.
RECITALS
A. Section 6.01 of the Indenture provides, in part, that an Event of
Default shall have occurred if "there occurs with respect to any issue or issues
of Indebtedness of the Company or any Restricted Subsidiary having an
outstanding principal amount of $5 million or more in the aggregate for all such
issues of all such Persons..., (i) an event of default that has caused the
holder thereof to declare such Indebtedness to be due and payable prior to its
Stated Maturity and such Indebtedness has not been discharged in full or such
acceleration has not been rescinded or annulled within 30 days of such
acceleration...."
B. Section 9.03 of the Indenture provides that the Company, each
Guarantor and the Trustee may waive any existing default or compliance with any
provision of the Indenture with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Senior Notes or the
Holders of at least a majority in aggregate principal amount at maturity of the
outstanding Senior Discount Notes.
C. The Company solicited and has received consents upon the terms and
subject to the conditions set forth in the Consent Solicitation Statement dated
February 11, 2003 and the accompanying Consent Letter from Holders representing
at least a majority in aggregate principal amount of the outstanding Senior
Notes and from Holders representing at least a majority in aggregate principal
amount at maturity of the outstanding Senior Discount Notes to waive as
described therein certain provisions of the Indenture.
D. Section 9.05 of the Indenture provides that after a waiver becomes
effective it thereafter binds every Holder.
E. The Company and the Guarantors have requested, and the Trustee, in
accordance with Section 9.03 of the Indenture, is willing to agree to a limited
waiver of the provisions of Section 6.01 of the Indenture solely as set forth
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants herein set forth, and intending to be legally bound, each of
the parties hereto agrees as follows:
1. LIMITED WAIVER. In accordance with Section 9.03 of the Indenture, the
Company, each Guarantor, and the Trustee waive the provisions of Section 6.01 of
the Indenture with respect to any Default or Event of Default arising as a
result of, or in connection with, any failure by the Company to make the
Payment, including any Default or Event of Default arising as a result of or in
connection with any exercise of remedies by GLH Communications, Inc., or any
successor thereto, arising as a result of or in connection with any failure by
the Company to make the Payment (collectively, the "Waived Defaults").
2. EFFECT OF LIMITED WAIVER. The waiver set forth above is for the
limited purposes set forth herein, and shall not obligate the Company, any
Guarantor, the Trustee or any Holder to enter into, consent to or provide any
future amendment, consent, waiver or departure from the terms and conditions of
the Indenture.
3. CONDITIONS TO EFFECTIVENESS. This Limited Waiver shall become
effective as of the date first set forth above upon the occurrence of the
following:
(a) the Company, each Guarantor and Trustee shall have executed
and delivered this Limited Waiver; and
(b) the Holders of at least a majority in aggregate principal
amount of the outstanding Senior Notes and the Holders of at least a
majority in aggregate principal amount at maturity of the outstanding
Senior Discount Notes shall have consented in writing to this Limited
Waiver.
4. APPLICABLE LAW. This Limited Waiver shall be governed by, and
construed in accordance with, the laws of the State of New York but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required thereby.
5. COUNTERPARTS. This Limited Waiver 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; signature pages may be
detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. Delivery of an executed counterpart of a signature page by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Limited Waiver.
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6. RESERVATION OF RIGHTS. Except as otherwise set forth above, the
Holders reserve any and all rights, remedies, privileges and powers that they
may have in connection with any Default or Event of Default arising under the
provisions of the Indenture and applicable law, including but not limited to any
other default arising out of or related to the April 2002 Note, but excluding
the Waived Defaults. This Limited Waiver is not, and shall not be deemed to be,
a waiver of any Defaults or Events of Default, or any rights, remedies,
privileges or powers arising under the Indenture, except in each case with
respect to the Waived Defaults.
7. INDEMNIFICATION OF TRUSTEE. The Company and the Guarantors jointly
and severally shall indemnify each of the Trustee, any predecessor Trustee and
its agents, employees, officers, directors and shareholders for and hold the
same harmless against, any and all losses, liabilities or expenses (including,
without limitation, reasonable attorneys' fees and expenses and taxes other than
taxes based upon the income of the Trustee) incurred by it in connection with
this Limited Waiver, including the costs and expenses of defending itself
against any claim (whether asserted by the Company or any Holder or any other
person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence or bad faith. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder. The Company shall defend the claim with counsel
reasonably acceptable to the Trustee, and the Trustee shall cooperate in the
defense at the Company's expense. The Trustee may have separate counsel of its
selection and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee's own
negligence or bad faith. In addition, the Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
The obligations of the Company and the Guarantors under this Section 7
shall survive the resignation or removal of the Trustee and/or the satisfaction
and discharge or termination of the Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Limited Waiver
to be executed by their respective authorized officers as of the day and year
first written above.
THE COMPANY: THE GUARANTORS:
LEAP WIRELESS INTERNATIONAL, INC. CRICKET COMMUNICATIONS HOLDINGS, INC.
By: /s/ S. D. XXXXXXXXX By: /s/ S. D. XXXXXXXXX
------------------------------- -------------------------------------
Name: S. D. Xxxxxxxxx Name: S. D. Xxxxxxxxx
Title: CFO Title: CFO
THE TRUSTEE: TELEPHONE ENTERTAINMENT, INC.
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE By: /s/ XXXXXX XXXXX
-------------------------------------
Name: Xxxxxx Xxxxx
Title: CFO
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXXX.XXX, INC.
By: /s/ S. D. XXXXXXXXX
-------------------------------------
Name: S. D. Xxxxxxxxx
Title: CFO
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