Exhibit
10.2
EXECUTION VERSION
REFERENCE IS MADE TO THE
INTERCREDITOR AGREEMENT DATED AS OF OCTOBER 9, 2008 (AS AMENDED,
RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE
"INTERCREDITOR AGREEMENT"), AMONG THE COMPANY (AS DEFINED BELOW),
PARENT (AS DEFINED BELOW), THE SUBSIDIARIES OF THE COMPANY PARTY
THERETO, THE BANK OF NEW YORK MELLON, AS FIRST LIEN COLLATERAL
AGENT (AS DEFINED THEREIN), GUARANTIED PARTY (AS DEFINED BELOW), AS
SECOND LIEN COLLATERAL AGENT (AS DEFINED THEREIN), AND THE BANK OF
NEW YORK MELLON, AS THIRD LIEN COLLATERAL AGENT (AS DEFINED
THEREIN). EACH BENEFICIARY HEREUNDER (A) ACKNOWLEDGES THAT IT HAS
RECEIVED A COPY OF THE INTERCREDITOR AGREEMENT, (B) CONSENTS TO THE
PAYMENT AND LIEN SUBORDINATION PROVIDED FOR IN THE INTERCREDITOR
AGREEMENT, (C) AGREES THAT IT WILL BE BOUND BY AND WILL TAKE NO
ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT
AND (D) AUTHORIZES AND INSTRUCTS THE GUARANTIED PARTY TO ENTER INTO
THE INTERCREDITOR AGREEMENT AS COLLATERAL AGENT AND ON BEHALF OF
SUCH NOTE HOLDER. THE FOREGOING PROVISIONS ARE INTENDED AS AN
INDUCEMENT TO THE NOTE HOLDERS UNDER THE FIRST LIEN PURCHASE
AGREEMENT TO EXTEND CREDIT TO THE COMPANY AND SUCH NOTE HOLDERS ARE
INTENDED THIRD PARTY BENEFICIARIES OF SUCH PROVISIONS. IN THE EVENT
OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE
INTERCREDITOR AGREEMENT AND THIS GUARANTY, THE PROVISIONS OF THE
INTERCREDITOR AGREEMENT SHALL CONTROL.
SECOND LIEN
GUARANTY
This SECOND LIEN
GUARANTY (this
Guaranty )is entered into as of October 9, 2008 by the
undersigned (each a Guarantor , and together with any future Subsidiaries
executing this Guaranty, being collectively referred to herein as
the Guarantors
) in favor of and for the benefit of
The Bank of New York Mellon, as Collateral Agent for and
representative of (in such capacity, together with its successors
and assigns herein called Guarantied Party ) the holders of the Notes (as defined in the
Purchase Agreement referred to below) (sometimes referred to
as Holders
or Beneficiaries ) issued pursuant to that certain Second Lien
Subordinated Note Purchase Agreement dated as of the date hereof
(as it may be amended, supplemented or otherwise modified from time
to time, the Purchase
Agreement ; capitalized
terms defined therein and not otherwise defined herein being used
herein as therein defined) by and among NextWave Wireless LLC, a
Delaware limited liability company ( Company ), NextWave
Wireless Inc., a Delaware corporation ( Parent ), the
Subsidiaries of Company from time to time party thereto, the
Purchasers named therein and the Guarantied Party, as Collateral
Agent.
WHEREAS , it is a condition precedent to the issuance of
the Notes under the Purchase Agreement that Companys obligations
under the Note Documents be guarantied by Guarantors;
WHEREAS , Guarantors
are willing irrevocably and unconditionally to guaranty such
obligations of Company.
NOW, THEREFORE, based upon
the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and in
order to induce the Purchasers to enter into the Purchase Agreement
and purchase the Notes, Guarantors hereby agree as
follows:
1.
Guaranty. (a)
Guarantors jointly and severally irrevocably and unconditionally
guaranty, as primary obligors and not merely as sureties, the due
and punctual payment in full of all Guarantied Obligations (as
hereinafter defined) when the same shall become due, whether at
stated maturity, by acceleration, demand or otherwise (including
amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code). The
term Guarantied
Obligations is used
herein in its most comprehensive sense and includes any and all
obligations of Company in respect of notes, advances, borrowings,
loans, debts, interest, fees, costs, expenses (including, without
limitation, legal fees), indemnities and liabilities of whatsoever
nature, now or hereafter made, incurred or created, whether
absolute or contingent, liquidated or unliquidated, whether due or
not due, and however arising under or in connection with the
Purchase Agreement, the Notes, this Guaranty and the other Note
Documents.
Each Guarantor acknowledges that a portion of
the proceeds of the Notes may be advanced to it and that the
Guarantied Obligations are being incurred for and will inure to its
benefit.
Any interest on any portion of the Guarantied
Obligations that accrues after the commencement of any proceeding,
voluntary or involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of Company
(or, if interest on any portion of the Guarantied Obligations
ceases to accrue by operation of law by reason of the commencement
of said proceeding, such interest as would have accrued on such
portion of the Guarantied Obligations if said proceeding had not
been commenced) shall be included in the Guarantied Obligations
because it is the intention of each Guarantor and Guarantied Party
that the Guarantied Obligations should be determined without regard
to any rule of law or order that may relieve Company of any portion
of such Guarantied Obligations.
In the event that all or any portion of the
Guarantied Obligations is paid by Company, the obligations of each
Guarantor hereunder shall continue and remain in full force and
effect or be reinstated, as the case may be, in the event that all
or any part of such payment(s) is rescinded or recovered directly
or indirectly from Guarantied Party or any other Beneficiary as a
preference, fraudulent transfer or otherwise, and any such payments
that are so rescinded or recovered shall constitute Guarantied
Obligations.
Subject to the other provisions of this Section
1, upon the failure of Company to pay any of the Guarantied
Obligations when and as the same shall become due, each Guarantor
will upon demand pay, or cause to be paid, in cash, to Guarantied
Party for the ratable benefit of Beneficiaries, an amount equal to
the aggregate of the unpaid Guarantied
Obligations.
(b) Anything
contained in this Guaranty to the contrary notwithstanding, the
obligations of each Guarantor under this Guaranty and the other
Note Documents shall be limited to a maximum aggregate amount equal
to the largest amount that would not render its obligations
hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of Title 11 of the United States Code
or any applicable provisions of comparable state law (collectively,
the Fraudulent
Transfer Laws ), in each
case after giving effect to all other liabilities of such
Guarantor, contingent or otherwise, that are relevant under the
Fraudulent Transfer Laws (specifically excluding, however, any
liabilities of such Guarantor (x) in respect of intercompany
indebtedness to Company or other affiliates of Company to the
extent that such indebtedness would be discharged in an amount
equal to the amount paid by such Guarantor hereunder and
(y) under any guaranty of subordinated Indebtedness which
guaranty contains a limitation as to maximum amount similar to that
set forth in this Section 1(b), pursuant to which the liability of
such Guarantor hereunder is included in the liabilities taken into
account in determining such maximum amount) and after giving effect
as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, reimbursement, indemnification or contribution of such
Guarantor pursuant to applicable law or pursuant to the terms of
any agreement.
(c) Each
Guarantor under this Guaranty, and each guarantor under any other
guaranties of the Obligations of the Company under the Purchase
Agreement and the Notes (the Related
Guaranties ) that
contain a contribution provision similar to that set forth in this
Section 1(c), together desire to allocate among themselves
(collectively, the Contributing Guarantors
), in a fair and equitable manner, their
obligations arising under this Guaranty and the Related Guaranties.
Accordingly, in the event any payment or distribution is made on
any date by a Guarantor under this Guaranty or a guarantor under a
Related Guaranty, each such Guarantor or such other guarantor shall
be entitled to a contribution from each of the other Contributing
Guarantors in the maximum amount permitted by law so as to maximize
the aggregate amount of the Guarantied Obligations paid to
Beneficiaries.
2.
Guaranty Absolute; Continuing Guaranty.
The obligations of each Guarantor hereunder are
irrevocable, absolute, independent and unconditional and shall not
be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in
full of the Guarantied Obligations. In furtherance of the foregoing
and without limiting the generality thereof, each Guarantor agrees
that: (a) this Guaranty is a guaranty of payment when due and
not of collectibility; (b) Guarantied Party may enforce this
Guaranty upon the occurrence and during the continuance of an Event
of Default under the Purchase Agreement; (c) the obligations
of each Guarantor hereunder are independent of the obligations of
Company under the Note Documents and the obligations of any other
guarantor of obligations of Company and a separate action or
actions may be brought and prosecuted against each Guarantor
whether or not any action is brought against Company or any of such
other guarantors and whether or not Company is joined in any such
action or actions; and (d) a payment of a portion, but not
all, of the Guarantied Obligations by one or more Guarantors shall
in no way limit, affect, modify or abridge the liability of such or
any other Guarantor for any portion of the Guarantied Obligations
that has not been paid. This Guaranty is a continuing guaranty and
shall be binding upon each Guarantor and its successors and
assigns, and each Guarantor irrevocably waives any right
(including, without limitation, any such right
arising
under New York Civil Code Section 2815) to
revoke this Guaranty as to future transactions giving rise to any
Guarantied Obligations.
3.
Actions by Beneficiaries. Any
Beneficiary may from time to time, without notice or demand and
without affecting the validity or enforceability of this Guaranty
or giving rise to any limitation, impairment or discharge of any
Guarantors liability hereunder, (a) renew, extend, accelerate
or otherwise change the time, place, manner or terms of payment of
the Guarantied Obligations, (b) settle, compromise, release or
discharge, or accept or refuse any offer of performance with
respect to, or substitutions for, the Guarantied Obligations or any
agreement relating thereto and/or subordinate the payment of the
same to the payment of any other obligations, (c) request and
accept other guaranties of the Guarantied Obligations and take and
hold security for the payment of this Guaranty or the Guarantied
Obligations, (d) release, exchange, compromise, subordinate or
modify, with or without consideration, any security for payment of
the Guarantied Obligations, any other guaranties of the Guarantied
Obligations, or any other obligation of any Person with respect to
the Guarantied Obligations, (e) enforce and apply any security
now or hereafter held by or for the benefit of any Beneficiary in
respect of this Guaranty or the Guarantied Obligations and direct
the order or manner of sale thereof, or exercise any other right or
remedy that Guarantied Party or the other Beneficiaries, or any of
them, may have against any such security, consistent with the
Purchase Agreement and the Note Documents, including, any
applicable security agreement, including foreclosure on any such
security pursuant to one or more judicial or nonjudicial sales,
whether or not every aspect of any such sale is commercially
reasonable, and (f) exercise any other rights available to
Guarantied Party or the other Beneficiaries, or any of them, under
the Note Documents.
4.
No Discharge. This Guaranty
and the obligations of Guarantors hereunder shall be valid and
enforceable and shall not be subject to any limitation, impairment
or discharge for any reason (other than payment in full of the
Guarantied Obligations), including without limitation the
occurrence of any of the following, whether or not any Guarantor
shall have had notice or knowledge of any of them: (a) any
failure to assert or enforce or agreement not to assert or enforce,
or the stay or enjoining, by order of court, by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand
or any right, power or remedy with respect to the Guarantied
Obligations or any agreement relating thereto, or with respect to
any other guaranty of or security for the payment of the Guarantied
Obligations, (b) any waiver or modification of, or any consent
to departure from, any of the terms or provisions of the Purchase
Agreement, the Notes, any of the other Note Documents or any
agreement or instrument executed pursuant thereto, or of any other
guaranty or security for the Guarantied Obligations, (c) any
agreement relating to the Guarantied Obligations at any time being
found to be illegal, invalid or unenforceable in any respect,
(d) the application of payments received from any source to
the payment of indebtedness other than the Guarantied Obligations,
even though Guarantied Party or the other Beneficiaries, or any of
them, might have elected to apply such payment to any part or all
of the Guarantied Obligations, (e) any failure to perfect or
continue perfection of a security interest in any collateral which
secures any of the Guarantied Obligations, (f) any defenses,
set-offs or counterclaims which Company may assert against
Guarantied Party or any Beneficiary in respect of the Guarantied
Obligations, including but not limited to failure of consideration,
breach of warranty, payment, statute of frauds, statute of
limitations, accord and satisfaction and usury, and (g) any
other act or thing or omission, or delay
to do any other act or thing, which may or might
in any manner or to any extent vary the risk of a Guarantor as an
obligor in respect of the Guarantied Obligations.
5.
Waivers. Each
Guarantor waives, for the benefit of Beneficiaries: (a) any
right to require Guarantied Party or the other Beneficiaries, as a
condition of payment or performance by such Guarantor, to
(i) proceed against Company, any other guarantor of the
Guarantied Obligations or any other Person, (ii) proceed
against or exhaust any security held from Company, any other
guarantor of the Guarantied Obligations or any other Person,
(iii) proceed against or have resort to any balance of any
deposit account or credit on the books of any Be
