Exhibit 10.35
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NAVATION, INC.
30 EAST 85TH STREET, SUITE 3B
NEW YORK, NEW YORK 10028
Dated as of March 27, 2009
NextWave Wireless LLC
NextWave Wireless Inc.
12670 High Bluff Drive
San Diego, CA 92130
Attention: Board of Directors
Working Capital Facility Commitment Letter
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Ladies and Gentlemen:
You have advised Navation, Inc. ("Navation") that NextWave
Wireless Inc., a corporation organized under the laws of the State
of Delaware
(the "Parent"), and NextWave Wireless LLC, a limited liability
company organized
under the laws of the State of Delaware (the "Company", and
together with the
Parent, "you"), are seeking financing for the Company in the form
of a secured
working capital facility providing the ability to borrow up to $15
million (the
"Credit Facility" or the "Financing") to be evidenced by an
issuance of notes,
as described in the Confidential Term Sheet attached hereto as
Annex I (the
"Term Sheet"). All references to "dollars" or "$" in this agreement
and the
attachments and annexes hereto (collectively, this "Commitment
Letter") are
references to United States dollars.
Immediately following the consummation of the Financing, none
of the Parent, the Company or any of their respective subsidiaries
will have any
indebtedness or preferred stock other than in connection with (i)
the Company's
7% Senior Secured Notes due 2010 (the "First Lien Notes"), (ii) the
Company's
Senior-Subordinated Secured Second Lien Notes due 2010 (the "Second
Lien
Notes"), (iii) other indebtedness permitted under the First Lien
Notes as of the
date hereof, and (iv) the Third Lien Subordinated Secured
Convertible Notes due
2011 (the "Third Lien Notes"; the debt evidenced by the First Lien
Notes, the
Second Lien Notes and the Third Lien Notes, collectively, the
"Existing Debt").
Commitments.
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You have requested that Navation commit to the establishment
of the Credit Facility. Navation is pleased to advise you of its
binding
commitment to provide the Credit Facility upon the terms and
subject to the
conditions set forth or referred to in this Commitment Letter and
the Term
Sheet. Navation reserves the right, prior to or after execution of
the Facility
Documentation (as defined below), in consultation with you, to
syndicate all or
a portion of its commitment to one or more of the Company's
existing secured
note holders or their affiliates that will become parties to the
Facility
Documentation (Navation and the institutions becoming or agreeing
to become
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parties to the Facility Documentation with respect to all or a
portion of the
Credit Facility, as identified to you in writing by Navation from
time to time,
the "Credit Providers").
The initial borrowing of funds under the Credit Facility shall
be subject to the execution and delivery of definitive
documentation (i) with
respect to the Credit Facility (including, without limitation, note
purchase
agreements, guarantees, security documentation, and collateral
agency
agreements, in each case in form and substance identical to the
analogous Second
Lien Documents (as such term is defined in the Conditions Annex),
except for
such changes therein relating to interest rate, maturity, rights
relating to
working capital collateral and other terms necessary or appropriate
to reflect
the terms and conditions which are set forth herein and in the Term
Sheet and
the Conditions Annex; an agreement between the Second Lien Note
holders and the
Credit Providers governing their respective rights, including in
respect of the
voting and amendment rights as set forth in the Term Sheet; and
the
Intercreditor Amendment (as defined below)) and (ii) with respect
to the
warrants as described in the Term Sheet (collectively, the
"Facility
Documentation") in form and substance reasonably satisfactory to
the Credit
Providers reflecting the terms and conditions set forth in the Term
Sheet and in
Annex II hereto (the "Conditions Annex"). The "Intercreditor
Amendment" shall be
an amendment to the existing Intercreditor Agreement, in which the
liens granted
pursuant to the terms hereof on the Shared Collateral (as defined
in the Term
Sheet) shall be made subject (mutatis mutandis) to the provisions
of the
Intercreditor Agreement with respect to such Shared Collateral on
the same basis
as the Second Priority Liens (as defined therein), it being
understood that the
Credit Providers shall be entitled to exercise all the rights of a
senior
creditor with respect to the Credit Facility (i.e. the Credit
Facility shall not
be payment subordinated pursuant to Section 3.02 of the
Intercreditor Agreement
or otherwise) and of a first priority secured creditor with respect
to the
Designated Collateral (as defined in the Term Sheet), and that the
liens granted
pursuant to the terms hereof on the Designated Collateral shall be
first
priority liens not subject in any way to the Intercreditor
Agreement. Such
amendment shall further provide that no other party shall, by
reason of the
Intercreditor Agreement or the First, Second or Third Lien
Documents be entitled
to any lien on the Designated Collateral.
If you or your direct or indirect subsidiaries secure
operating capital that is not required to be used to repay or
prepay the
Existing Debt, including advances against royalties, pre-paid
non-recurring
engineering expenses or ordinary course contract services, but, in
the case of
operating capital secured from a customer in the form of such
advances or
prepayments , only to the extent that such items exceed the
corresponding
revenue amounts for such customer reflected in the PacketVideo
Corporation
revenue plan (including the applicable supporting documents
therefor) that was
incorporated into the 2009 operating plan, which forecasts revenue
through March
31, 2010 and was approved by the Governance Committee of the Board
of Directors
of the Company on March 27, 2009 ("Operating Capital") from a
strategic
investor, asset sale or disposition or other corporate transaction,
then (a) you
shall utilize such Operating Capital to repay any principal,
interest, penalties
or other monetary obligations then outstanding under the Credit
Facility
("Borrowed Amounts"), which repayment shall permanently reduce the
commitment
under the Credit Facility by the amount of principal included in
the Borrowed
Amounts and (b) to the extent that after repayment of Borrowed
Amounts, if any,
additional Operating Capital remains available ("Unapplied
Operating Capital"),
you, on the one hand, and Navation and the other Credit Providers,
if any, on
the other hand, shall each have the right by written notice to the
other parties
hereto to terminate a portion of the Credit Providers' commitments
hereunder
and, if applicable, under the Facility Documentation (which
termination shall be
allocated pro rata among all Credit Providers based on their
then-existing
commitments), in an amount of such Unapplied Operating Capital,
whether or not
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the Facility Documentation has been executed at such time. In the
event all of
the Credit Providers' commitments hereunder and, if applicable,
under the
Facility Documentation are terminated pursuant to this paragraph
then the
warrants provided for in the Term Sheet shall not become payable,
but the
expense reimbursement, indemnification and governing law and forum
provisions
hereof shall survive. You hereby represent to us that (i) your
receipt of funds
that may constitute Operating Capital is not required to be used to
repay or
prepay the Existing Debt except to the extent that such funds
relate to Asset
Sales (as defined in the Note Purchase Agreement dated October 9,
2008,
governing the Second Lien Notes, as it may be amended from time to
time), (ii)
you have delivered to us a true, correct and complete copy of the
PacketVideo
Corporation revenue plan (including the applicable supporting
documentation
therefor setting forth the revenue by customer) that was
incorporated into the
2009 operating plan approved by the Governance Committee of the
Board of
Directors of the Company on March 27, 2009 and (iii) the
PacketVideo revenue
plan delivered to you does not include any customer advances or
prepayments.
Information.
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You hereby represent and covenant that (a) all information
(other than the financial projections (the "Projections")) that has
been or will
be made available to the Credit Providers by you or any of your
representatives
in connection with the transactions contemplated hereby (the
"Information"),
when taken as a whole, is and will be complete and correct in all
material
respects and does not and will not contain any untrue statement of
a material
fact or omit to state a material fact necessary to make the
statements contained
therein, in the light of the circumstances under which such
statements are made,
not misleading and (b) the Projections that have been or will be
made available
to the Credit Providers by you or any of your representatives in
connection with
the transactions contemplated hereby have been and will be prepared
in good
faith based upon assumptions believed by you to be reasonable (it
being
understood that projections by their nature are inherently
uncertain and no
assurances are being given that the results reflected in the
Projections will be
achieved). The representations and covenants contained in this
paragraph shall
remain effective until the initial funding under the Facility
Documentation and
thereafter the disclosure representations contained herein shall be
superseded
by those contained in the Facility Documentation.
Fees and
Compensation.
----------------------
As consideration for Navation's commitment with respect to the
Credit Facility, you agree to pay, or cause to be paid, to Navation
in
immediately available funds the fees set forth in the Term Sheet
under the
heading "Commitment Fee." Once paid, all such fees shall be fully
earned and
shall not be refundable under any circumstances.
Indemnity and
Expenses.
-----------------------
By your acceptance below, you hereby agree to indemnify and
hold harmless the Credit Providers and each of their respective
affiliates
(including, without limitation, controlling persons) and the
directors,
officers, employees, advisors and agents of the foregoing (each, an
"Indemnified
Person") from and against any and all losses, claims, costs,
expenses, damages
or liabilities (or actions or other proceedings commenced or
threatened in
respect thereof) relating to any third party claims that arise out
of or in
connection with this Commitment Letter, the Credit Facility or any
of the
transactions contemplated hereby or thereby, and to reimburse each
Indemnified
Person promptly upon its written demand for any legal or other
expenses incurred
in connection with investigating, preparing to defend or defending
against, or
participating in, any such loss, claim, cost, expense, damage,
liability or
action or other proceeding (whether or not such Indemnified Person
is a party to
any action or proceeding); provided that any such obligation to
indemnify, hold
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harmless and reimburse an Indemnified Person shall not be
applicable to the
extent determined by a final, non-appealable judgment of a court of
competent
jurisdiction to have resulted primarily from the gross negligence
or willful
misconduct of such Indemnified Person.
You
shall not be liable for any settlement of any such
proceeding effected without your written consent, but if settled
with such
consent or if there shall be a final judgment against an
Indemnified Person, you
shall, subject to the proviso in the preceding sentence, indemnify
such
Indemnified Person from and against any loss or liability by reason
of such
settlement or judgment. You shall not, without the prior written
consent of any
Indemnified Person, effect any settlement of any pending or
threatened
proceeding in respect of which such Indemnified Person is or could
have been a
party and indemnity could have been sought hereunder by such
Indemnified Person,
unless such settlement (i) includes an unconditional release of
such Indemnified
Person from all liability or claims that are the subject matter of
such
proceeding and (ii) does not include a statement as to or an
admission of fault,
culpability, or a failure to act by or on behalf of such
Indemnified Person. No
Credit Provider shall be responsible or liable to you or any of
your respective
subsidiaries, affiliates or stockholders or any other person or
entity for any
indirect, special, punitive or consequential damages which may be
alleged as a
result of or arise out of or in connection with this Commitment
Letter, the
Credit Facility, the Facility Documentation or the transactions
contemplated
hereby or thereby. In addition, you hereby agree to reimburse the
Credit
Providers upon demand for all reasonable out-of-pocket costs and
expenses
(including, without limitation, legal fees of counsel to each of
the Credit
Providers (not to exceed two such separate counsel), costs and
expenses and all
costs relating to due diligence and the preparation and negotiation
of all
documents relating to the transactions contemplated by this
Commitment Letter)
incurred in connection with the establishment of the Credit
Facility and the
transactions contemplated thereby, and the preparation, review,
negotiation,
execution and delivery of this Commitment Letter and the Facility
Documentation
and the administration, amendment, modification or waiver thereof
(or any
proposed amendment, modification or waiver), whether or not any
extensions of
credit are made under the Credit Facility. The foregoing provisions
of this
paragraph shall be in addition to any rights that any Indemnified
Person may
have at common law or otherwise.
Conflicts of
Interest.
----------------------
You acknowledge that (and waive any conflict of interest
arising in connection with):
(a) the Credit Providers and/or their
affiliates (the
"Credit Provider Group"), in their capacity as
principal or agent, are involved in a wide range of
investment activities globally (including investment
advisory; asset management; and trading) from which
conflicting interests or duties may arise and
therefore, conflicts may arise
between duties of
Credit Provider Group members hereunder and other
duties or interests of Credit Provider Group members;
(b) any Credit Provider Group member
may, at any time,
(i) provide services to any other person, (ii) engage
in any transaction (on its own account or otherwise)
with respect to you or any member of the same group
as you (including, without limitation, holding any
First Lien Notes, Second Lien Notes or Third Lien
Notes), (iii) serve as a member of your governing
body
or of the governing body of any member of the
same group as you or any of committees of such
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respective governing bodies or (iv) act in relation
to any matter for any other person whose interests
may be adverse to you or any member of your group (a
"Third Party"), and may retain for their own benefit
any related remuneration or profit, notwithstanding
that a conflict of interest exists or may arise
and/or any Credit Provider Group member is in
possession or has come or comes into possession
(whether before, during or after the agreements
hereunder) of information confidential to you;
provided that such information shall not be shared
with any Third Party. You accept that permanent or ad
hoc arrangements/information barriers may be used
between and within divisions of the Credit Provider
Group members for this purpose and that locating
directors, officers or employees in separate
workplaces is not necessary for such purpose;
(c) information which is held
elsewhere within the Credit
Provider Group but of which none of the individual
directors, officers or employees having the conduct
of transactions contemplated by this letter actually
has knowledge (or can properly obtain knowledge
without breach of internal procedures), shall not for
any purpose be taken into account in determining a
Credit Provider Group member's responsibilities to
you hereunder; and
(d) Credit Provider Group members
shall not have any duty
to disclose to, or utilize for the benefit of, you,
any non-public information acquired in the course of
providing services to any other person, engaging in
any transaction (on its own account or otherwise) or
otherwise carrying on its business.
Governing Law,
Etc.
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This Commitment Letter and the Credit Providers' commitment
shall not be assignable by you without the prior written consent of
the Credit
Providers and any purported assignment without such consent shall
be void. The
Credit Providers reserve the right to employ the services of their
respective
affiliates in providing services contemplated by this Commitment
Letter and to
allocate, in whole or in part, to their affiliates certain fees
payable to the
Credit Providers in such manner as they and their affiliates may
agree in their
sole discretion. You also agree that the Credit Providers, as
applicable, may at
any time and from time to time assign all or any portion of their
respective
commitments hereunder to one or more of their respective
affiliates. You further
acknowledge that the Credit Providers may share with any of their
affiliates,
and such affiliates may share with the Credit Providers, any
information related
to you or any of your respective subsidiaries or affiliates
(including, without
limitation, information relating to creditworthiness) and the
transactions
contemplated hereby. The Credit Providers agree to treat, and cause
any such
respective affiliate to treat, all non-public information provided
to the Credit
Providers by you as confidential information in accordance with
their customary
practices.
This Commitment Letter may not be amended or any provision
hereof waived or modified except by an instrument in writing signed
by Navation,
each other Credit Provider, if any, and you. This Commitment Letter
may be
executed in any number of counterparts, each of which shall be an
original and
all of which, when taken together, shall constitute one agreement.
Delivery of
an executed counterpart of a signature page of this Commitment
Letter by
facsimile transmission or by pdf shall be effective as delivery of
a manually
executed counterpart of this Commitment Letter. Headings are for
convenience of
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reference only and shall not affect the construction of, or be
taken into
consideration when interpreting, this Commitment Letter. This
Commitment Letter
is intended to be for the benefit of the parties hereto and is not
intended to
confer any benefits upon, or create any rights in favor of, and may
not be
relied on by, any persons other than the parties hereto and, with
respect to the
indemnification provided under the heading "Indemnity and
Expenses," each
Indemnified Person.
