Exhibit 10.1
EXECUTION VERSION
LIMITED WAIVER TO PURCHASE
AGREEMENT
RELATING TO SENIOR SECURED NOTES
DUE 2011 OF NEXTWAVE WIRELESS LLC
This LIMITED WAIVER TO PURCHASE
AGREEMENT RELATING TO SENIOR SECURED NOTES DUE 2011 OF NEXTWAVE
WIRELESS LLC , dated as of July 17, 2011 (this “
Agreement ”), is entered into by and among
(i) NextWave Wireless LLC, a limited liability company
organized under the laws of the state of Delaware (the “
Issuer ” or the “ Company ”),
(ii) each holder (the “ First Lien Holders
” or “ Holders ”) of the Senior Secured
Notes due 2011 (the “ First Lien Notes ”) issued
pursuant to that certain Purchase Agreement dated as of
July 17, 2006, as amended by that certain First Amendment to
Purchase Agreement dated as of March 12, 2008, that certain
Second Amendment to Purchase Agreement dated as of
September 26, 2008, that certain Amendment and Limited Waiver
to the Note Agreements dated as of March 31, 2009, that
certain Amendment and Limited Waiver to the Note Agreements dated
as of June 22, 2009, and that certain Amendment and Limited
Waiver to the Note Agreements dated as of March 16, 2010 (as
amended, supplemented, restated or otherwise modified from time to
time, the “ First Lien Purchase Agreement ”),
among the Issuer, each guarantor party thereto (the “
Guarantors ” and together with the Issuer, the “
Note Parties ”), the purchasers party thereto, and The
Bank of New York, as collateral agent (the “ Collateral
Agent ”), and (iii) the Guarantors. Capitalized
terms used herein without definition shall have the same meanings
herein as set forth in the First Lien Purchase
Agreement.
RECITALS
WHEREAS , the Issuer has informed the First Lien Holders
that it will fail to pay the principal of, and premium and interest
on the First Lien Notes at maturity on July 17, 2011 (the
“ Maturity Date ”) under the First Lien Purchase
Agreement in breach of the terms of the First Lien Notes and
Section 5.2 of the First Lien Purchase Agreement, constituting
Events of Default under Sections 6.1(a), (b), and (g)(5) of the
First Lien Purchase Agreement (the foregoing, the “
Covered Defaults ”).
WHEREAS , the Issuer has informed the First Lien Holders
that it is exploring a transaction whereby the Issuer will
refinance certain of its existing indebtedness, including the First
Lien Notes and, in connection therewith, is negotiating a
forbearance agreement (the “ Forbearance Agreement
”) with (i) the First Lien Holders, (ii) each
holder of the of the Senior-Subordinated Secured Second Lien Notes
due 2011 (the “ Second Lien Notes ”) issued
pursuant to that certain Second Lien Subordinated Note Purchase
Agreement dated as of October 9, 2008, as amended by that
certain Amendment and Limited Waiver to the Note Agreements dated
as of March 31, 2009, that certain Amendment and Limited
Waiver to the Note Agreements dated as of June 22, 2009, and
that certain Amendment and Limited Waiver to the Note Agreements
dated as of March 16, 2010 (as amended, supplemented, restated
or otherwise modified from time to time, the “ Second Lien
Purchase Agreement ”) among the Issuer, NextWave Wireless
Inc. (“ Parent ”), each guarantor party thereto,
the purchasers party thereto, and The Bank of New York, as
collateral agent, (iii) each holder of the Senior-Subordinated
Secured Third Lien Notes due 2011 (the “ Third Lien
Notes ”) issued pursuant to that certain Third Lien
Subordinated Exchange Note Exchange Agreement dated as of
October 9, 2008, as amended by that certain Amendment and
Limited Waiver to the Note Agreements dated as of March 31,
2009, that certain Amendment and Limited Waiver to the Note
Agreements dated as of June 22, 2009 and that certain
Amendment And Limited Waiver to the Note Agreements dated as of
March 16, 2010 (as amended, supplemented, restated or
otherwise modified
from time to time, the “ Third Lien
Purchase Agreement ” and together with the First Lien
Purchase Agreement and the Second Lien Purchase Agreement, the
“ Purchase Agreements ”) among the Parent, as
issuer, Issuer, as a guarantor, each other guarantor party thereto,
the purchasers party thereto, and The Bank of New York Mellon, as
collateral agent, (iv) Parent, (v) the collateral agents
party to each of the Purchase Agreements, and (vi) the
guarantors party to the Purchase Agreements (the Issuer,
collectively with the parties listed in items (i) through
(vi) of this clause, the “ Forbearance Agreement
Parties ”).
WHEREAS , the Issuer has informed the First Lien Holders
that the Forbearance Agreement is unlikely to be in agreed form and
executed by the Forbearance Agreement Parties as of the Maturity
Date.
WHEREAS , the Note Parties desire for the First Lien
Holders to waive until August 1, 2011 the Covered Defaults,
and the First Lien Holders are willing to do so, but only to the
extent, and on the terms and conditions expressly set forth
herein.
AGREEMENT
NOW, THEREFORE,
in consideration of the foregoing
recitals and the mutual covenants herein set forth and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound,
and to induce the First Lien Holders to enter into this Agreement,
the parties hereto hereby agree as follows:
1. LIMITED WAIVER.
(a) Subject to the terms and
conditions set forth herein and in reliance on the representations
and warranties of the Note Parties herein contained, the First Lien
Holders hereby waive until August 1, 2011 (such date, the
“ Waiver Expiration Date ”) and solely with
respect to the obligation to pay the principal of, and premium and
interest on the First Lien Notes on the Maturity Date, Sections
5.2, 6.1(a), 6.1(b), and 6.1(g)(5) of the First Lien Purchase
Agreement and the related provisions of the First Lien
Notes.
(b) The waivers set forth in
Section 1(a) hereof shall be limited precisely as written and
relate solely to the noncompliance by the Note Parties with the
provisions of Sections 5.2, 6.1(a), 6.1(b), and 6.1(g)(5) of the
First Lien Purchase Agreement and the First Lien Notes in the
manner and to the extent described above, and nothing in this
Agreement shall be deemed to:
(i) constitute a waiver of
compliance by the Note Parties with respect to (a) Sections
5.2, 6.1(a), 6.1(b), and 6.1(g)(5) of the First Lien Purchase
Agreement in any other instance or (b) any other term,
provision or condition of the First Lien Purchase Agreement or any
instrument or agreement referred to therein;
(ii) constitute a waiver of any
Event of Default or potential Event of Default in any other
instance;
(iii) be a consent to any future
agreement or waiver; or
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(iv) prejudice any right or remedy
that any First Lien Holder may now have or may have in the future
under or in connection with the First Lien Purchase Agreement or
any instrument or agreement referred to therein.
Except as expressly set forth
herein, the terms, provisions and conditions of the First Lien
Purchase Agreement and the other Note Documents shall remain in
full force and effect and in all other respects are hereby ratified
and confirmed. Subject to Section 1(a) above, the First Lien
Holders reserve the right, to the extent provided in the First Lien
Purchase Agreement, to exercise any or all of their rights and
remedies under the First Lien Purchase Agreement, the Intercreditor
Agreement and other Note Documents as a result of any Defaults or
Events of Default which may be continuing on the date hereof or any
Defaults or Events of Default which may occur after the date
hereof, and the First Lien Holders have not waived any of such
rights or remedies, and nothing in this Agreement, and no failure,
delay or course of dealing on any of their part in exercising any
such rights or remedies, shall be construed as a waiver of any such
rights or remedies. No single or partial exercise of any right of
the First Lien Holders shall preclude any later exercise of such
right, and failure by the First Lien Holders to require strict
performance of any provision of the Note Documents shall not affect
any right of the First Lien Holders to demand strict compliance and
performance thereunder.
Each Note Party acknowledges and
agrees that, on the Waiver Expiration Date, the agreement of the
First Lien Holders to waive Sections 5.2, 6.1(a), 6.1(b), and
6.1(g)(5) of the First Lien Purchase Agreement in the manner and to
the extent described above shall cease and be of no further force
or effect, and First Lien Holders and/or the Collateral Agent will
be entitled to immediately exercise all of their rights under the
First Lien Purchase Agreement, the other Note Documents and
applicable law, all without further notice or demand.
2. RATIFICATION AND REAFFIRMATION
OF OBLIGATIONS AND LIENS.
(a) Each Note Party hereby ratifies
and reaffirms the validity and enforceability of all of the
obligations under each Note Document and of each Note Document and
agrees that its obligations under each such Note Document and this
Agreement are its legal, valid and binding obligations enforceable
against it in accordance with the respective terms thereof and that
it has no defense (whether legal or equitable), set-off or
counterclaim to the payment or performance of such obligations in
accordance with the terms of the Note Documents. Each Note Party
agrees and acknowledges that all agreements, representations and
warranties made under the Note Documents to which it is a party
survive the execution and delivery of this Agreement and the
occurrence of the Maturity Date.
(b) Each Note Party party to any of
the Collateral Documents hereby ratifies and reaffirms all of the
liens and security interests heretofore granted pursuant to the
Collateral Documents, as collateral security for the indebtedness
incurred pursuant to the First Lien Notes and the First Lien
Purchase Agreement, and acknowledges that all of such liens and
security interests, and all collateral heretofore pledged as
security for such indebtedness, continues to be and remains
collateral for such indebtedness from and after the date
hereof.
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3. CONDITIONS TO EFFECTIVENESS;
COVENANTS; CONSENT OF THIRD LIEN HOLDERS.
(a) This Agreement shall become
effective only upon the satisfaction of all of the following
conditions precedent (the date of satisfaction of such conditions
being referred to herein as the “ Effective Date
”):
(i) Each Note Party shall have
delivered to each of the First Lien Holders an executed copy of
this Agreement.
(ii) Each of the First Lien Holders
shall have executed a copy of this Agreement.
(iii) The Issuer shall have paid all
out-of-pocket fees and expenses of the First Lien Holders,
including the reasonable fees and expenses of
O’Melveny & Myers LLP (but not of any other legal
counsel to any First Lien Holder) in connection with this Agreement
and the transactions contemplated hereby.
(iv) Each Note Party shall have
delivered to each of the First Lien Holders certified copies of its
Organizational Documents, together with a good standing certificate
from the Secretary of State of its state of organization, each
dated a recent date prior to the Effective Date.
(v) Each Note Party shall have
delivered to each of the First Lien Holders resolutions of its
Board of Directors (or committee thereof with appropriate delegated
authority) or equivalent governing body approving and authorizing
the execution, delivery, and performance of this Agreement,
certified as of the Effective Date by its corporate secretary or an
assistant secretary as being in full force and effect without
modification or amendment.
(vi) Each Note Party shall have
delivered to each of the First Lien Holders signature and
incumbency certificates of its officers executing this
Agreement.
(vii) On or before the Effective
Date, all corporate and other proceedings taken or to be taken in
connection with the transactions contemplated hereby and all
documents incidental thereto shall have been delivered to the First
Lien Holders, and the First Lien Holders shall have received all
such counterpart originals or certified copies of such
documents.
(viii) There shall be no action,
suit or proceeding at law or in equity by or before any court or
governmental agency, authority or body or any arbitrator involving
any Note Party or its property pending or, to the knowledge of any
Note Party, threatened that (i) would reasonably be expected
to have a material adverse effect on the performance of the Note
Parties’ obligations under this Agreement or the consummation
of the transactions contemplated thereby or (ii) is or would
be reasonably expected to have a material adverse effect on the
business, property, operations or conditions of the Note Parties
taken as a whole.
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(ix) All representations and
warranties contained in this Agreement shall be true, correct and
complete in all material respects on and as of the Effective
Date.
4. REPRESENTATIONS AND
WARRANTIES.
(a) Each Note Party, jointly and
severally, hereby represents, warrants and covenants with and to
the First Lien Holders as follows:
(i) the execution, delivery and
performance of this Agreement are duly authorized;
(ii) the agreements and obligations
of each Note Party contained herein and contained in First Lien
Purchase Agreement constitute the legal, valid and binding
obligations of such Note Party enforceable by the First Lien
Holders against such Note Party in accordance with its terms,
except as such enforceability may be limited by an applicable
bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors’ rights generally and by general
principles of equity regardless of whether considered a proceeding
in equity or at law;
(iii) the execution, delivery and
performance of this Agreement are all within each Note
Party’s corporate or limited liability company
powers;
(iv) neither the execution, delivery
or performance of this Agreement by each Note Party, nor the
consummation of the transactions contemplated herein, nor
compliance with the provisions hereof (a) has violated or will
violate any law or regulation or any order or decree of any court
or governmental authority in any respect, (b) does or shall
conflict with or result in the breach of, or constitute a default
in any respect under, any indenture, mortgage, deed of trust,
security agreement, agreement or instrument to which any Note Party
is a party or by which any Note Party or its property may be bound,
(c) has violated or will violate any provision of the
Organizational Documents of any Note Party, or (d) has or will
result in, or require, the creation or imposition of any lien,
charge, security interest or other encumbrance on any of the assets
or properties of any Note Party;
(v) the execution and delivery by
each Note Party of this Agreement and the performance by each Note
Party of this Agreement do not require any Governmental
Authorization by any Governmental Authority (including the
FCC);
(vi) after giving effect to the
waiver contained in Section 1(a) hereof, no event has occurred
and is continuing that would constitute an Event of Default or a
Default;
(vii) any financial information
delivered by each Note Party fairly presents, in all material
respects, the financial position (on a consolidated and, where
applicable, consolidating basis) of the entities described in such
financial statements as at the dates thereof and the results of
operations and cash flows (on a consolidate
