Exhibit 4.6.2
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as
of March 13, 2002, among Telephone Entertainment Network, Inc., a Delaware
corporation ("TELNT"), and Backwire.com, Inc., a Delaware corporation
("BACKWIRE," and collectively with TELNT, the "ADDITIONAL GUARANTORS"), Leap
Wireless International, Inc., a Delaware corporation (the "COMPANY"), Cricket
Communications Holdings, Inc., a Delaware corporation (the "GUARANTOR"), and
State Street Bank and Trust Company, a state chartered trust company organized
under the laws of the Commonwealth of Massachusetts, as trustee under the
indenture referred to below (the "TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company and the Guarantor have heretofore executed
and delivered to the Trustee an indenture (the "INDENTURE"), dated as of
February 23, 2000, providing for the issuance of an aggregate principal amount
at maturity of $225,000,000 of 12 1/2% Series A and Series B Senior Notes due
2010 and $668,000,000 14 1/2 Series A and Series B Senior Discount Notes due
2010;
WHEREAS, Section 4.23 of the Indenture provides that under
certain circumstances the Company and the Guarantor are required to cause the
Additional Guarantors to execute and deliver to the Trustee a supplemental
indenture pursuant to which the Additional Guarantors shall unconditionally
guarantee all of the Company's Obligations under the Indenture and the
Securities pursuant to a guarantee (the "ADDITIONAL GUARANTEE") on the terms and
conditions of the Guarantee by the Guarantor in Article 10 of the Indenture and
on the other terms and conditions set forth herein;
WHEREAS, pursuant to Section 4.23 of the Indenture, the Company,
Guarantor and Cricket Merger Sub, Inc., a Delaware corporation ("SUB"), have
heretofore executed and delivered to the Trustee a Supplemental Indenture dated
as of June 13, 2000, adding Sub as an Additional Guarantor under the Indenture;
WHEREAS, Sub was merged with and into Guarantor effective as of
June 15, 2000, with Guarantor as the surviving corporation; and
WHEREAS, pursuant to Section 7.01 of the Indenture, the Trustee
is authorized to execute and deliver 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 parties hereto mutually covenant and agree for the equal and ratable benefit
of the holders of the Securities as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Additional Guarantors hereby
agree, jointly and severally with all other guarantors, to guarantee the
Company's Obligations under the Indenture and the Securities on the terms and
subject to the conditions set forth herein
and in Article 10 of the Indenture (including the obligation to pay Liquidated
Damages under the provisions of the Registration Rights Agreement) and to be
bound by all other applicable provisions of the Indenture. Pursuant to Section
10.01 of the Indenture, the Additional Guarantors agree that the Guarantees set
forth in Article 10 of the Indenture, as supplemented by their agreement to
guarantee contained herein shall remain in full force and effect and apply to
all of the Securities notwithstanding any failure by the Additional Guarantors
to endorse on such Securities a notation of the Additional Guarantee.
3. RELEASE OF ADDITIONAL GUARANTOR. In the event that the holders
of any of the Company's other Indebtedness which is guaranteed by the Additional
Guarantors release the Additional Guarantors their guarantee in respect of such
other Indebtedness, except a discharge or release by or as a result of any
payment under the guarantee of such other Indebtedness by the Additional
Guarantors, the Additional Guarantors shall be automatically and unconditionally
released and discharged from their obligations under this Additional Guarantee;
provided, however, if, after such release, any guarantee under such other
Indebtedness is subsequently reincurred or reinstated, then such Additional
Guarantors reincurring or reinstating such guarantee under such other
Indebtedness shall execute and reinstate their Additional Guarantee hereunder.
Upon receipt of an Officer's Certificate, the Trustee shall
execute any documents reasonably requested by the Company, the Guarantor or the
Additional Guarantors in order to evidence the release of such Additional
Guarantors from their obligations under the Additional Guarantee.
4. NO RECOURSE AGAINST OTHERS. No direct or indirect stockholder,
employee, officer or director, as such, past, present or future of the Company,
the Guarantors or the Additional Guarantors or any successor entity shall have
any personal liability for any Obligations of the Company, the Guarantors or the
Additional Guarantors or any successor entity under the Additional Guarantee, by
reason of his or its status as such stockholder, employee, officer or director.
Each Holder by accepting a Security waives and releases all such
liability, and such waiver and release is part of the consideration for the
issuance of the Securities.
5. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
6. COUNTERPARTS. This Supplemental Indenture may be executed in
any number of counterparts and by the parties hereto 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.
7. EFFECT OF THE HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
ADDITIONAL GUARANTORS: COMPANY:
TELEPHONE ENTERTAINMENT LEAP WIRELESS INTERNATIONAL,
NETWORK, INC. INC.
By: /s/ S. DOUG HUTCHESON By: /s/ HARVEY P. WHITE
-------------------------------- ----------------------------------------
Name: S. Doug Hutcheson Name: Harvey P. White
Title: Senior Vice President Title: Chairman of the Board and CEO
BACKWIRE.COM, INC. GUARANTOR:
CRICKET COMMUNICATIONS
HOLDINGS, INC on behalf of
itself and as successor in
interest to Cricket Merger
Sub, Inc.
By: /s/ S. DOUG HUTCHESON
------------------------------
Name: S. Doug Hutcheson
Title: Senior Vice President By: /s/ HARVEY P. WHITE
------------------------------------------
Name: Harvey P. White
Title: Chairman of the Board and CEO
TRUSTEE:
STATE STREET BANK AND TRUST
COMPANY
By: /s/ MICHAEL M. HOPKINS
--------------------------------------------
Name: Michael M. Hopkins
Title: Vice President
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