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LIMITED WAIVER TO PURCHASE AGREEMENT RELATING TO SENIOR SECURED NOTES DUE 2011 OF NEXTWAVE WIRELESS LLC

Waiver Agreement

LIMITED WAIVER TO PURCHASE AGREEMENT RELATING TO SENIOR SECURED NOTES DUE 2011 OF NEXTWAVE WIRELESS LLC | Document Parties: NEXTWAVE WIRELESS INC. | Avenue Capital Partners IV, LLC | Avenue Capital Partners V, LLC | Avenue Partners, LLC | AWS WIRELESS INC | Bank of New York Mellon | GL Partners IV, LLC | GL Partners V, LLC | Issuer, NextWave Wireless Inc | NEXTWAVE BROADBAND INC | NextWave Wireless LLC | NW SPECTRUM CO | SOLA LTD | SOLUS CORE OPPORTUNITIES MASTER FUND LTD | WCS WIRELESS LICENSE SUBSIDIARY, LLC You are currently viewing:
This Waiver Agreement involves

NEXTWAVE WIRELESS INC. | Avenue Capital Partners IV, LLC | Avenue Capital Partners V, LLC | Avenue Partners, LLC | AWS WIRELESS INC | Bank of New York Mellon | GL Partners IV, LLC | GL Partners V, LLC | Issuer, NextWave Wireless Inc | NEXTWAVE BROADBAND INC | NextWave Wireless LLC | NW SPECTRUM CO | SOLA LTD | SOLUS CORE OPPORTUNITIES MASTER FUND LTD | WCS WIRELESS LICENSE SUBSIDIARY, LLC

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Title: LIMITED WAIVER TO PURCHASE AGREEMENT RELATING TO SENIOR SECURED NOTES DUE 2011 OF NEXTWAVE WIRELESS LLC
Governing Law: New York     Date: 7/18/2011
Industry: Communications Equipment     Law Firm: O'Melveny Myers     Sector: Technology

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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


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