mm04-0110_10ke1009.htm


    
      Exhibit
10.9

      


    


    
      	
              AVENUE
      CAPITAL MANAGEMENT II, L.P.

              535
      Madison Avenue

              14th
      Floor

              New
      York, New York 10022

            	
              SOLUS
      CORE OPPORTUNITIES MASTER FUND LTD

              c/o
      Solus Alternative Asset Management LP

              430
      Park Avenue

              New
      York, New York 10022

            


    

    


     

    March 16,
2010        

     

    


     

    NextWave
Wireless LLC

    NextWave
Wireless Inc.

    12670
High Bluff Drive

    San
Diego, CA 92130

     

    Attention:  Independent
Committee

         of the
Board of Directors

    


     

    Senior Secured Notes
Commitment Letter

     

    Ladies
and Gentlemen:

     

    You have
advised Avenue Capital Management II, L.P. (“Avenue Capital”),
acting on behalf of its managed investment funds set forth on the signature page
hereto (collectively, the “Avenue Capital
Funds,” and together with Avenue Capital, “Avenue Capital
Group”) and Solus Core Opportunities Master Fund Ltd (“Core”) or one or more
of its affiliates or co-investors (collectively, the “Core Funds” and
together with Solus Alternative Asset Management LP, “Sola Group”) 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 light of build-out requirements with respect to
certain spectrum holdings owned by the Company or any of its subsidiaries in the form of
additional senior secured first lien issuances of notes providing aggregate cash
proceeds of up to $25.0 million (the “Incremental
Indebtedness” or the “Financing”).  The
Incremental Indebtedness will be a further issuance of, and part of the same
series of indebtedness of $350 million (original principal amount) of senior
secured notes (the “Existing First Lien
Notes”), that were issued under the Purchase Agreement dated July 17,
2006, governing the Existing First Lien Notes (as amended from time to time, the
“First Lien Purchase
Agreement”), and will be evidenced by notes (collectively, the “Senior Incremental
Notes”) substantially in the form attached as Annex III to the Amendment
and Limited Waiver to the Note Agreements dated as of March 16, 2010 (the “March
Amendment”).  All references to “dollars” or “$” in this agreement
and the attachments and annexes hereto (collectively, this “Commitment Letter”)
are references to United States dollars.

     


    
      
         


      

      
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    Commitments.

     

    You have
requested that the Avenue Capital Funds and the Core Funds commit to purchase
the Senior Incremental Notes.  The Avenue Capital Funds and the Core
Funds are pleased to advise you of the Avenue Capital Funds’ commitment to
purchase 80% of the Senior Incremental Notes of the Company and of the Core
Funds’ commitment to purchase 20% of the Senior Incremental Notes of the Company
upon the terms and subject to the conditions set forth or referred to in this
Commitment Letter. The commitments of the Avenue Capital Funds and the Core
Funds are several and not joint.

     

    The
Avenue Capital Funds’ commitment and the Core Funds’ commitment are subject to
(i) the execution, delivery and effectiveness on the date hereof of the March
Amendment, (ii) the satisfaction, on  and as of each date on which
Senior Incremental Notes are to be issued and purchased (each, a “Purchase Date”) of
the conditions set forth on Annex I hereto, and
(iii) the execution and delivery of the Senior Incremental Notes and related
purchase, guaranty and security documentation substantially in the form of the
Second Lien Incremental Indebtedness Agreement dated as of July 2, 2009 by and
among certain purchasers, the Company, Parent and each Guarantor (the “Incremental
Agreement”) with such changes as are necessary or appropriate to reflect
the issuance of the Senior Incremental Notes (including certain provisions from
the First Lien Purchase Agreement that shall be incorporated mutatis mutandis into such
documentation but excluding (i) the requirements to deliver a solvency opinion,
related certificate and fairness opinion referred to in Sections 4(e), 4(f) and
4(g) of the Incremental Agreement and (ii) the representations and warranties
set forth in Section 4.25 of the First Lien Purchase Agreement) and otherwise in
form and substance reasonably satisfactory to the Avenue Capital Funds and the
Core Funds, in respect of each Purchase Date (collectively with the Senior
Incremental Notes, the “Notes
Documentation”).

     

    Independent
Parties.

     

    Each of
Avenue Capital and Core hereby represents that they are separate and distinct
parties with respect to the Financing and have acted as such when working with
the Company to structure the Financing.  Each of Avenue Capital and
Core hereby confirms that it is making its investment decision independently and
has no agreement with the other party to acquire, hold, vote or dispose of any
securities of the Company.

     

    Information.

     

    You
hereby represent and covenant that (a) all information (other than the financial
projections (the “Projections”)) that
has been made available to Avenue Capital Group and Sola Group by you or any of
your representatives in connection with the transactions contemplated hereby
(the “Information”), when
taken as a whole, is complete and correct in all material respects and does 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, (b) the
Projections that have been made available to Avenue Capital Group and Sola Group
by you or any of your representatives in connection with the transactions
contemplated hereby have been 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) and (c) the Company
individually and the Company and the Guarantors (as defined in the First Lien
Purchase Agreement), taken as a whole on a consolidated basis,

     


    
      
         


      

      
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    after
giving effect to (i) the incurrence of all indebtedness and obligations being
incurred in connection herewith and (ii) the March Amendment, will be Solvent
(as defined in the First Lien Purchase Agreement).  By your acceptance
below, you hereby agree to deliver, not later than the Deadline (as hereinafter
defined), to Avenue Capital and Core a solvency certificate from the Company and
the Parent dated on or about the date of this Commitment Letter and addressed to
Avenue Capital and Core, in form, scope and substance satisfactory to Avenue
Capital and Core, with appropriate attachments and demonstrating that after
giving effect to the consummation of the transactions contemplated by this
Commitment Letter and the March Amendment, the Company and the Parent, each
individually, and the Parent and its subsidiaries, taken as a whole on a
consolidated basis, will be Solvent (as such term is defined in the First Lien
Purchase Agreement).

     

    Indemnity and
Expenses.

     

    By your
acceptance below, you hereby agree to indemnify and hold harmless Avenue
Capital, the Avenue Capital Funds, Solus Alternative Asset Management LP (“Solus”), the Core
Funds 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) that arise out of or in connection with this Commitment Letter, the
Senior Incremental Notes 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 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.  None of Avenue Capital, the
Avenue Capital Funds, Solus or the Core Funds 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 this Commitment Letter, the Senior
Incremental Notes or the transactions contemplated hereby or
thereby.  In addition, you hereby agree to reimburse Avenue Capital
Group and Sola Group, respectively, upon demand for all reasonable out-of-pocket
costs and expenses (including, without limitation, legal fees of separate
counsel to each of Avenue Capital Group and Sola Group, 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

     


    
      
         


      

      
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    Commitment
Letter) incurred in connection with the closing and consummation of the Senior
Incremental Notes and the transactions contemplated thereby, and the
preparation, review, negotiation, execution and delivery of this Commitment
Letter and the Notes Documentation and the administration, amendment,
modification or waiver thereof (or any proposed amendment, modification or
waiver), whether or not any of the transactions contemplated by this Commitment
Letter close or any documentation is executed and delivered or any extensions of
credit are made under any portion of the Senior Incremental
Notes.  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)

            	
              each
      of (i) Avenue Capital and/or its affiliates, including the Avenue Capital
      Funds (the “Avenue Affiliate
      Group”) and (ii) Solus and/or its affiliates, including the Core
      Funds (the “Sola
      Affiliate 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 Avenue Affiliate Group members or Sola Affiliate Group members
      hereunder and other duties or interests of Avenue Affiliate Group members
      or Sola Affiliate Group members;

            


    

     

    
      	
               
      

            	
              (b)

            	
              Avenue
      Affiliate Group members and Sola Affiliate Group members 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 Existing
      First Lien Notes and any other securities issued by you), (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 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
      member of the Avenue Affiliate Group or the Sola Affiliate Group 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 Avenue Affiliate Group members or Sola Affiliate 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 Avenue Affiliate Group or the Sola
      Affiliate 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

            


    

     


    
      
         


      

      
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    procedures),
shall not for any purpose be taken into account in determining an Avenue
Affiliate Group member’s or a Sola Affiliate Group member’s responsibilities to
you hereunder; and

     

    
      	
               
      

            	
              (d)

            	
              neither
      Avenue Affiliate Group members nor Sola Affiliate Group members shall 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.

     

    This
Commitment Letter, the Avenue Capital Funds’ commitment and the Core Funds’
commitment shall not be assignable by you without the prior written consent of
Avenue Capital or Core, as applicable, and any purported assignment without such
consent shall be void. Avenue Capital Group and Sola Group reserve the right to
employ the services of their respective affiliates in providing services
contemplated by this Commitment Letter.  You also agree that the
Avenue Capital Funds and the Core Funds may at any time and from time to time
assign all or any portion of their commitments hereunder to one or more of their
respective affiliates.  You further acknowledge that Avenue Capital
Group and Sola Group may share with any of their respective affiliates, and such
affiliates may share with Avenue Capital Group and Sola Group, 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.  Avenue Capital Group and Sola Group
agree to treat, and cause any such respective affiliate to treat, all non-public
information provided to Avenue Capital Group or Sola Group 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 Avenue Capital, Core 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 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.

     

    This Commitment Letter shall be
governed by, and construed in accordance with, the laws of the State of New York
without regard to principles of conflicts of law to the extent that the
application of the laws of another jurisdiction will be required
thereby.  Any right to trial by jury with respect to any claim
or action arising out of this Commitment Letter is hereby waived.  You
hereby submit to the non-exclusive jurisdiction of the federal and New York
State courts located in The City of New York (and appellate courts thereof) in
connection with any dispute related to this Commitment Letter or any of the
matters contemplated hereby, and agree that service of any process, summons,
notice or document by registered mail addressed to you shall be effective
service of process against you for any suit, action or proceeding relating to
any such dispute.  You irrevocably and unconditionally waive
any

     


    
      
         


      

      
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    objection
to the laying of such venue of any such suit, action or proceeding brought in
any such court and any claim that any such suit, action or proceeding has been
brought in an inconvenient forum.  A final judgment in any such suit,
action or proceeding brought in any such court may be enforced in any other
courts to whose jurisdiction you are or may be subject by suit upon
judgment.

     

    Please
indicate your acceptance of the terms hereof by returning to Avenue Capital and
Core executed counterparts of this Commitment Letter not later than 5:00 p.m.,
New York City time, on Friday, March 19, 2010 (the “Deadline”).  This
Commitment Letter, the Avenue Capital Funds’ commitment and the Core Funds’
commitment hereunder are also conditioned upon your acceptance hereof, and
Avenue Capital’s and Core’s receipt of an executed counterpart hereof on or
prior to the Deadline.  Upon your execution and delivery of this
Commitment Letter, you shall be bound to the terms and agreements contained in
this Commitment Letter.  The expense reimbursement, confidentiality,
indemnification and governing law and forum provisions hereof shall survive
termination of (i) this Commitment Letter (or any portion hereof) and (ii) any
or all of the Avenue Capital Funds’ commitment or the Core Funds’ commitment
hereunder.

     

    [Signature
Page Follows]

     

    


     

     

     

     

     

     

     

     

     

     

     


    
      
         


      

      
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    Avenue
Capital Group and Sola Group are pleased to have been given the opportunity to
assist you in connection with the Financing.

     

     

    Very
truly yours,

     

    
      	
              AVENUE
      CAPITAL MANAGEMENT II, L.P. (on behalf of Avenue Investments, L.P.,
      Avenue International, Ltd., Avenue Special Situations Fund IV, L.P.,
      Avenue Special Situations Fund V, L.P., Avenue AIV US, L.P., Avenue
      International Master, L.P., Avenue CDP Global Opportunities Fund, L.P.
      and/or any of its affiliate entities)

            	
               

            	
              SOLUS
      CORE OPPORTUNITIES MASTER FUND LTD

            
	
              By:

            	 
      

              /s/  Sonia
      Gardner

            	 	
               

            	
              By:

            	 
      

              /s/  Christopher
      Bondy

            	 
      

               

            
	 
      	
              Name:

            	
              
                Sonia
      Gardner

              

            	 	
              
                 

              

            	 
      	
              Name:

            	
              Christopher
      Bondy

            	
               

            
	 
      	
              Title:

            	
              
                President
      and Managing Partner

              

            	 	
               

            	 
      	
              Title:

            	
              Authorized
      Signatory

            	
               

            


    

    
    

    
    

     

    Accepted
and agreed to as of

     

     

    the date
first written above:

     

    
      	
              NEXTWAVE
      WIRELESS LLC

            	 
      
	 
      	 
      
	
              By:

            	
              /s/  Francis
      J. Harding

            	 
      	 
      
	 
      	
              Name:

            	
              Francis
      J. Harding

            	 
      
	 
      	
              Title:

            	
              Treasurer

            	 
      


    

    


    
      	
              NEXTWAVE
      WIRELESS INC.

            	 
      
	 
      	 
      
	
              By:

            	
              /s/  Francis
      J. Harding

            	 
      	 
      
	 
      	
              Name:

            	
              Francis
      J. Harding

            	 
      
	 
      	
              Title:

            	
              Executive
      Vice President and

              Chief
      Financial Officer

            	 
      


    

    


    


    


     


    
      
        
          Signature
Page to Commitment Letter

           

        

         


      

      
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    ANNEX I

     

    CONDITIONS
TO EACH PURCHASE OF

     

    SENIOR INCREMENTAL
NOTES

     

    The
Avenue Capital Funds’ commitment and the Core Funds’ commitment under the
Commitment Letter with respect to the purchase from time to time, or at any
time, of any of the Senior Incremental Notes are subject to the conditions set
forth in the Commitment Letter and satisfaction of each of the conditions
precedent set forth below.  All capitalized terms used but not defined
herein shall have the meanings provided in the Commitment Letter to which this
Annex I is
attached.

     

    1. Avenue
Capital and Core shall have received a written request to purchase Senior
Incremental Notes no later than ten (10) and no earlier than fifteen (15)
Business Days prior to the intended Purchase Date for such
purchase.  Such request shall not be for a Purchase Date later than
July 31, 2010.  Such notice shall specify: (a) the intended Purchase
Date, and (b) the aggregate principal amount of Senior Incremental Notes that
are requested to be purchased (which amount shall not be less than
$5,000,000).

     

    2. All
Senior Incremental Notes shall be substantially in the form attached as Annex
III to the March Amendment and all Notes Documentation shall be substantially in
the form of the Second Lien Incremental Indebtedness Agreement dated as of July
2, 2009 by and among certain purchasers, the Company, Parent and each Guarantor
with such changes as are necessary or appropriate to reflect the issuance of the
Senior Incremental Notes (including certain provisions from the First Lien
Purchase Agreement that shall be incorporated mutatis mutandis into such
documentation but excluding (i) the requirements to deliver a solvency opinion,
related certificate and fairness opinion referred to in Sections 4(e), 4(f) and
4(g) of the Incremental Agreement and (ii) the representations and warranties
set forth in Section 4.25 of the First Lien Purchase Agreement) and otherwise in
form and substance reasonably satisfactory to Avenue Capital and Core, and
Avenue Capital and Core shall have received duly executed counterparts of the
Notes Documentation.

     

    3. All
conditions precedent to the purchase of the Senior Incremental Notes contained
in the Notes Documentation shall have been satisfied or waived by each of Avenue
Capital and Core, and the representations and warranties of the Company and the
Parent and their respective subsidiaries contained in the Notes Documentation
shall be true and correct as of the related Purchase Date.

     

    4. The
Parent and the Company shall have provided the documentation and other
information to the Avenue Capital Funds and the Core Funds that is required by
regulatory authorities under applicable “know your customer” and
anti-money-laundering rules and regulations.

     

    5. The
Collateral Agent under the Senior Incremental Notes shall have a perfected,
first priority lien on and security interest in the Collateral (as defined in
the First Lien Purchase Agreement).

     

    6. No
Default or Event of Default shall have occurred under any of the First Lien
Purchase Agreement, the Second Lien Note Purchase Agreement or the Exchange Note
Exchange Agreement.

     

    7. There
shall be no legal bar to the issuance of the Senior Incremental
Notes.

    

      
        
          
            Annex I -
1

             

          

           


        

        
           


          
            

          

        

        
           


        

      

    

     

     

    8. All
costs, fees, expenses (including, without limitation, legal fees and expenses)
and other compensation payable to Avenue Capital, the Avenue Capital Funds,
Solus, the Core Funds and the Collateral Agent under the First Lien Purchase
Agreement, the Second Lien Note Purchase Agreement, the Exchange Note Exchange
Agreement, and the Senior Incremental Notes shall have been paid to the extent
due.

     

     

     

     

     

     

     

     

    
 

     
 


    
      
        
          Annex I -
2