mm04-0110_10ke0412.htm


    
       

      
        
          Exhibit
4.12

        

      

    


    AMENDMENT
AND LIMITED WAIVER TO THE NOTE AGREEMENTS

     

    This
AMENDMENT AND LIMITED WAIVER TO
THE NOTE AGREEMENTS (this “Amendment and Waiver”) is
dated as of June 22, 2009 and is made with reference to (i) 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 and that certain
Amendment and Limited Waiver to the Note Agreements dated as of April 1, 2009
(the “April
Amendment”)), among NextWave Wireless LLC, a Delaware limited liability
company (“NextWave”),
PacketVideo Corporation, a Delaware corporation (“PacketVideo”), as a guarantor,
certain other guarantors named therein, certain purchasers named therein and The
Bank of New York (“BONY”), as Collateral Agent
(as the same may be further amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the “First Lien Purchase
Agreement”), (ii) that certain Second Lien Subordinated Note Purchase
Agreement dated as of October 9, 2008 (as amended by the April Amendment), among
NextWave, NextWave Wireless Inc., a Delaware corporation (“Parent”), PacketVideo, as a
guarantor, certain other guarantors named therein, certain purchasers named
therein and BONY, as Collateral Agent (as the same may be further amended,
restated, amended and restated, supplemented or otherwise modified from time to
time, the “Second Lien Purchase
Agreement”), and (iii) that certain Third Lien Subordinated Exchange Note
Exchange Agreement dated as of October 9, 2008 (as amended by the April
Amendment), among NextWave, Parent, PacketVideo, as a guarantor, certain other
guarantors named therein, certain purchasers named therein and BONY, as
Collateral Agent (as the same may be further amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the “Third Lien Exchange
Agreement”, and together with the First Lien Purchase Agreement and the
Second Lien Purchase Agreement, each a “Note Agreement” and,
collectively, the “Note
Agreements”).  Capitalized terms used, but not defined herein,
shall have the respective meanings ascribed thereto in the applicable Note
Agreement.

     

    WHEREAS, NextWave, NextWave
Broadband Inc., a Delaware corporation, a wholly-owned subsidiary of NextWave
and the holder of all Capital Stock of PacketVideo (“Broadband”), and PacketVideo
are in discussions with NTT DoCoMo, Inc. (“docomo”) regarding the sale to
docomo of up to 35% of the Capital Stock of PacketVideo (the “PV docomo Shares”) for an
aggregate purchase price of $45.5 million, payable in cash at closing, on the
additional terms and conditions described below and such other terms and
conditions as will be negotiated between the parties (the “PV Sale”);

     

    WHEREAS, as a condition
precedent to the consummation of the PV Sale and the entry into material
documentation regarding the Secured Working Capital Line, PacketVideo shall be
released from all guaranty and security obligations under the Note Agreements,
the Security Agreements and the Guaranties and the PV docomo Shares shall not be
included in the Collateral under each respective Security Agreement and
each

     


    
      
         


      

      
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    respective
Collateral Agent’s Lien with respect to the PV docomo Shares shall be released
(collectively, the “Release
Condition”);

     

    WHEREAS, in order to permit
NextWave and Broadband to satisfy the Release Condition, and to facilitate the
intercreditor arrangements in connection with NextWave’s Secured Working Capital
Line previously authorized by the noteholders, the noteholders party hereto are
willing to (i) waive compliance with Section 5.9 of each respective Note
Agreement on an ongoing basis solely as it relates to PacketVideo (and any
subsidiary thereof) being a Guarantor and a grantor under each respective
Security Agreement, (ii) consent to the termination by each respective
Collateral Agent under each Note Agreement of all obligations of PacketVideo
under the respective Guaranty and the respective Security Agreement in
connection with such Note Agreement, and (iii) consent to the termination by
each respective Collateral Agent of the obligations of Broadband to pledge or
otherwise encumber the PV docomo Shares under each respective Security Agreement
executed in connection with each Note Agreement, such consents set forth in
clauses (i) and (ii) hereof being effective upon the earlier of execution of
definitive documentation for the Secured Working Capital Line or immediately
prior to the consummation of the PV Sale and the consent set forth in clause
(iii) hereof being effective immediately prior to the consummation of the PV
Sale;

     

    WHEREAS, to the extent
PacketVideo issues shares of its Capital Stock at a price per share that implies
an equity value for PacketVideo that is less than the $130 million implied by
the PV Sale, docomo will be issued additional shares for no consideration, in
order to maintain overall shareholdings in PacketVideo valued at $45.5 million
(the “Anti-Dilution
Shares”);

     

    WHEREAS, in connection with
the PV Sale, from and after the earliest of (i) July 31, 2010, (ii) the date on
which a mutually agreed milestone, as set forth in the technology collaboration
agreement to be entered into by PacketVideo and docomo, is accomplished, or
(iii) the date on which any creditor or other party initiates action to enforce
any loan, guaranty or lien in excess of $5 million against Parent or any of its
affiliates, docomo will have the option to purchase all of Broadband’s remaining
interests in PacketVideo for fair market value, as determined by an independent
third party appraiser mutually agreeable to docomo and Broadband as selected
pursuant to the terms of the definitive documentation for the PV Sale (the
“PV
Option”);

     

    WHEREAS, in connection with
the PV Sale, PacketVideo intends to establish an incentive equity pool providing
for the issuance of up to 15% of PacketVideo’s fully-diluted Capital Stock to
employees as incentive compensation (the “Equity Plan”);

     

    WHEREAS, Section 5.14(a)(B) of
the First Lien Purchase Agreement, Section 5.14(a)(2) of the Second Lien
Purchase Agreement and Section 5.14(a)(2) of the Third Lien Exchange Agreement
(collectively, the “Net
Proceeds Requirements”) each prohibit NextWave and Broadband from
entering into any Asset Sale, including pursuant to the PV Option, the issuance
of the Antidilution Shares and/or the Equity Plan, unless NextWave or Broadband
receives consideration at the time of such Asset Sale that yields

     


    
      
         


      

      
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    Net
Proceeds greater than the aggregate original purchase price paid for such
assets, including such Capital Stock;

     

    WHEREAS, the noteholders party
hereto are willing to waive the Net Proceeds Requirements solely for the purpose
of allowing NextWave and Broadband to establish the Equity Plan, issue the
Anti-Dilution Shares and consummate the PV Option in connection with the PV
Sale;

     

    WHEREAS, Section 5.12(b)(i),
Section 5.12(b)(ii) and Section 5.23 of each Note Agreement do not permit Parent
and its Subsidiaries (i) to create any restriction on PacketVideo’s ability (a)
to pay dividends or make any other distributions on its Capital Stock and (b) to
repay PacketVideo’s indebtedness to Parent and any of its Subsidiaries and (ii)
to amend PacketVideo’s Organizational Documents in a manner adverse to the
Holders under each Note Agreement without the consent of the Required Holders
under such Note Agreement;

     

    WHEREAS, the noteholders party
hereto are willing to waive compliance by the Parent and its Subsidiaries with
the requirements of Sections 5.12(b)(i), 5.12(b)(ii) and 5.23 of each Note
Agreement solely for the purpose of allowing NextWave to consummate the PV Sale
and the transactions thereby contemplated as set forth below;

     

    WHEREAS, Broadband has reached
a settlement (the “HP
Settlement Agreement”) with Hewlett-Packard Company, the sublessor of its
Valley Center Drive leased facility (“Sublessor”), whereby in
consideration of a full release and early termination of the sublease
(representing a long term remaining contractual obligation of $13,172,000 in the
aggregate), Broadband has agreed to (i) relinquish the cash security deposit and
the letter of credit (consisting of approximately $850,000 in the aggregate),
(ii) pay Sublessor $250,000 in cash, and (iii) issue to Sublessor an unsecured
promissory note (the “HP
Note”) in the aggregate principal amount of $2 million (with $1 million
payable in November 2010 and $1 million payable in May 2011) (the amounts set
forth in clauses (i), (ii) and (iii), collectively, the “HP Payments”);

     

    WHEREAS, in connection with
the HP Payments and the entry into and consummation of the transactions
contemplated by the HP Settlement Agreement, the noteholders party hereto are
willing to waive compliance by NextWave and Broadband with Section 5.13 of each
respective Note Agreement in order to permit the issuance by NextWave or
Broadband of the HP Note; and

     

    WHEREAS, as contemplated by
the April Amendment and Section 5.13(g) of each Note Agreement, the noteholders
party hereto have agreed to amend certain provisions of the Note Agreements in
order to facilitate implementation of the Secured Working Capital Line and to
make certain other amendments to the Note Agreements as set forth
below.

     

    NOW, THEREFORE, in consideration of
the premises set forth herein and in order to induce the noteholders party
hereto to enter into this Amendment and Waiver

     


    
      
         


      

      
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    and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:

     

    Section
1. Release
Condition.  Subject to the terms and conditions of this
Amendment and Waiver, and solely to the extent described herein, the Required
Holders under each Note Agreement hereby (i) waive compliance with Section 5.9
of each respective Note Agreement solely as such section relates to PacketVideo
(or any subsidiary thereof) being a Guarantor under such Note Agreement and a
grantor under each respective Security Agreement, such waiver to be effective
upon the earlier of execution of definitive documentation for the Secured
Working Capital Line or immediately prior to the consummation of the PV Sale
(ii) waive compliance with Section 5.9 of each respective Note Agreement solely
as such section relates to Broadband’s obligation to pledge the PV docomo Shares
under each respective Security Agreement, such waiver to be effective
immediately prior to the consummation of the PV Sale, (iii) direct each
respective Collateral Agent to execute and deliver such amendments to the
respective Security Agreements as are necessary to release PacketVideo from any
and all obligations of a grantor thereunder, such direction and consent to be
effective upon the earlier of execution of definitive documentation for the
Secured Working Capital Line or immediately prior to the consummation of the PV
Sale (iv) direct each respective Collateral Agent to execute and deliver such
amendments or terminations as are necessary to release PacketVideo from any and
all obligations as a Guarantor under each respective Guaranty, such direction
and consent to be effective upon the earlier of execution of definitive
documentation for the Secured Working Capital Line or immediately prior to the
consummation of the PV Sale and (v) direct each respective Collateral Agent to
execute and deliver such amendments or terminations as are necessary to release
such Collateral Agent’s security interest in the PV docomo Shares, such
direction and consent to be effective immediately prior to the consummation of
the PV Sale.

     

    Section
2. Anti-Dilution Shares; Net
Proceeds Requirement; PV Option.  Subject to the terms and
conditions of this Amendment and Waiver, and solely to the extent described
herein (A) (i) the Required Holders under the First Lien Purchase Agreement
hereby waive compliance with Section 5.14(a)(B) of the First Lien Purchase
Agreement, (ii) the Required Holders under the Second Lien Purchase Agreement
hereby waive compliance with Section 5.14(a)(2) of the Second Lien Purchase
Agreement, and (iii) the Required Holders under the Third Lien Exchange
Agreement hereby waive compliance with Section 5.14(a)(2) of the Third Lien
Exchange Agreement, in each case only to the extent necessary to permit
PacketVideo to establish the Equity Plan, issue the Anti-Dilution Shares and
consummate the PV Option, (B) (i) the Required Holders under the First Lien
Purchase Agreement hereby waive compliance with Section 5.12(b)(i) of the First
Lien Purchase Agreement, (ii) the Required Holders under the Second Lien
Purchase Agreement hereby waive compliance with Section 5.12(b)(i) of the Second
Lien Purchase Agreement, and (iii) the Required Holders under the Third Lien
Exchange Agreement hereby waive compliance with Section 5.12(b)(i) of the Third
Lien Exchange Agreement, in each case only to the extent necessary to permit
Broadband to consummate

     


    
      
         


      

      
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    the PV
Option, (C) the Required Holders under each Note Agreement hereby waive
compliance with Section 5.9 of each respective Note Agreement solely as such
section relates to Broadband’s obligation to pledge the Capital Stock of
PacketVideo under each respective Security Agreement, only to the extent
necessary to permit PacketVideo to establish the Equity Plan, issue the
Anti-Dilution Shares and consummate the PV Option, such waiver to be effective
immediately upon the delivery by NextWave of notice to each respective
Collateral Agent of the establishment of the Equity Plan, issuance of the
Anti-Dilution Shares or consummation of the PV Option, as applicable, and (D)
the Required Holders under each Note Agreement hereby direct each respective
Collateral Agent to execute and deliver such amendments or terminations as are
necessary to release such Collateral Agent’s security interest in the Capital
Stock of PacketVideo under each respective Security Agreement, only to the
extent necessary to permit PacketVideo to establish the Equity Plan, issue the
Anti-Dilution Shares and consummate the PV Option, such direction and consent to
be effective immediately upon the delivery by NextWave of notice to each
respective Collateral Agent of the establishment of the Equity Plan, issuance of
the Anti-Dilution Shares or consummation of the PV Option, as
applicable.

     

    Section
3. Execution of Definitive
Documentation for PV Sale.  Subject to the terms and conditions
of this Amendment and Waiver, and solely to the extent described herein (i) the
Required Holders under the First Lien Purchase Agreement hereby waive compliance
with Sections 5.12(b)(i), 5.12(b)(ii) and 5.23 of the First Lien Purchase
Agreement, (ii) the Required Holders under the Second Lien Purchase Agreement
hereby waive compliance with Sections 5.12(b)(i), 5.12(b)(ii) and 5.23 of the
Second Lien Purchase Agreement, and (iii) the Required Holders under the Third
Lien Exchange Agreement hereby waive compliance with Sections 5.12(b)(i),
5.12(b)(ii) and 5.23 of the Third Lien Exchange Agreement, in each case only to
the extent necessary to permit PacketVideo to enter into definitive
documentation (and to consummate the transactions necessary to accomplish the
intent thereof) with respect to the PV Sale, which documentation may (A) require
conversion of all intercompany Indebtedness of PacketVideo to Parent or any of
its Subsidiaries into equity of PacketVideo without cost or adverse tax
consequence to PacketVideo or its Subsidiaries except for certain working
capital advances made to PacketVideo in Fiscal Year 2009 not to exceed $15
million in the aggregate, (B) require payment of dividends on the Capital Stock
of PacketVideo owned by docomo, and (C) amend the Organizational Documents of
PacketVideo to permit the establishment of the Equity Plan, issuance of the
Anti-Dilution Shares and consummation of the PV Option.

     

    Section
4. HP Note
Issuance.  Subject to the terms and conditions of this
Amendment and Waiver, and solely to the extent described herein (i) the Required
Holders under the First Lien Purchase Agreement hereby waive compliance with
Section 5.13 of the First Lien Purchase Agreement, (ii) the Required Holders
under the Second Lien Purchase Agreement hereby waive compliance with Section
5.13 of the Second Lien Purchase Agreement, and (iii) the Required Holders under
the Third Lien Exchange Agreement hereby waive compliance with Section 5.13 of
the Third Lien Exchange Agreement, in

     


    
      
         


      

      
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    each case
only to the extent necessary to permit NextWave or Broadband, as the case may
be, to issue the HP Note.

     

    Section
5. Limitation of
Waiver.  Each limited waiver set forth above shall be limited
precisely as written and relate solely to the noncompliance of the Note Parties
with the provisions of Sections 5.9, 5.12(b)(i), 5.12(b)(ii), 5.13, 5.14(a)(B)
and 5.23 of the First Lien Purchase Agreement, Sections 5.9, 5.12(b) (i),
5.12(b)(ii), 5.13, 5.14(a)(2) and 5.23 of the Second Lien Purchase Agreement and
Sections 5.9, 5.12(b) (i), 5.12(b)(ii), 5.13, 5.14(a)(2) and 5.23 of the Third
Lien Exchange Agreement in the manner and to the extent described in Sections 1,
2, 3 and 4 of this Amendment and Waiver.  Except as explicitly set
forth herein, nothing in this Amendment and Waiver shall be deemed to constitute
an amendment of or a waiver of compliance by any Note Party with respect to
Sections 5.9, 5.12(b)(i), 5.12(b)(ii), 5.13, 5.14(a)(B) or 5.23 of the First
Lien Purchase Agreement, Sections 5.9, 5.12(b)(i), 5.12(b)(ii), 5.13, 5.14(a)(2)
or 5.23 of the Second Lien Purchase Agreement or Sections 5.9, 5.12(b) (i),
5.12(b)(ii), 5.13, 5.14(a)(2) or 5.23 of the Third Lien Exchange Agreement in
any other instance or with respect to any other term, provision or condition of
any of the Note Agreements or any other instrument or agreement referred to
therein.  Except as expressly set forth herein, the terms, provisions
and conditions of the Note Agreements shall remain in full force and effect and
in all other respects are hereby ratified and confirmed, and nothing in this
Amendment and Waiver shall be deemed to prejudice any right or remedy that any
Holder may now have (except to the extent the same was based upon existing
defaults that will not exist after giving effect to this Amendment and Waiver)
or may have in the future under or in connection with any Note Agreement or any
other instrument or agreement referred to therein.

     

    Section
6. Amendments Relating to the
PV Sale.

     

    (a) Amendments to the First Lien
Purchase Agreement.

     

    (i) The
definition of “Permitted Investments” in the First Lien Purchase Agreement is
hereby amended and restated in its entirety as follows:

     

    ““Permitted Investments” means,
with respect to any Person, (i) Investments in cash and Cash Equivalents, (ii)
Investments in securities of trade creditors or customers received (x) pursuant
to any plan of reorganization or similar arrangement upon the bankruptcy or
insolvency of such trade creditors or customers, or (y) in settlement of
delinquent obligations of, and other disputes with, customers, suppliers and
others, in each case arising in the ordinary course of business or otherwise in
satisfaction of a judgment, (iii) Investments in the Notes, the Second Lien
Notes, the Exchange Notes and the instruments representing the Indebtedness
issued and outstanding under the Secured Working Capital Line, (iv) Investments
in existence on the Effective Date and set forth on Schedule 9.1 of the Second
Lien Note Purchase Agreement, (v) advances to employees and officers of Note
Parties of up to $500,000 in the aggregate to fund purchases of Capital Stock of
the Company under any stock option plan or similar

     


    
      
         


      

      
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    employment
arrangements so long as no cash is actually advanced by the Company or any of
the Guarantors to such employees and officers to fund such purchases, (vi)
guarantees of Indebtedness to the extent permitted pursuant to Section 5.13,
(vii) Investments in payment intangibles, chattel paper and accounts (each as
defined in the UCC), notes receivable and similar items arising or acquired in
the ordinary course of business consistent with the past practice of the Note
Party, or (viii) Investments by (w) any Note Party in any other Note Party, (x)
any Subsidiary of the Company that is not a Note Party in any other Subsidiary
of the Company that is not a Note Party, or (y)  any Subsidiary of the
Company that is not a Note Party in any Note Party, provided, however, that the
resulting Indebtedness of such Note Party to such Subsidiary shall be
subordinated (I) so long as the Notes are outstanding, to the Notes, (II) so
long as any Second Lien Indebtedness is outstanding, to the Second Lien
Indebtedness and (III) so long as any Third Lien Indebtedness is outstanding, to
the Third Lien Indebtedness, or (z) any Note Party in any Subsidiary of the
Company that is not a Note Party, provided, however, that
Investments in any such Subsidiary that is not a Note Party, other than such
Investments existing on the Effective Date and listed on Schedule 9.1 of the
Second Lien Note Purchase Agreement, shall not be permitted unless the Budget
Condition and the Named Businesses Condition have been met for the monthly
period immediately preceding such Investment and would be met on a pro forma
basis, after giving effect to such Investment, as of the end of the current
monthly period; provided, further,
that from and after the date of release of PacketVideo Corporation as a
Guarantor under the Guaranty and a grantor under the Security Agreement, no
Investments in PacketVideo Corporation or any Subsidiary thereof shall be
permitted under this clause (z) except for the Investments that were made before
such date.”

     

    (ii) The first
sentence of Section 5.9(a) of the First Lien Purchase Agreement is hereby
amended and restated in its entirety as follows:

     

    “In the
event that, after the Closing Date, the Company or any Subsidiary of the Company
forms or acquires a License Subsidiary or any other Material Subsidiary, the
Company will promptly notify the Collateral Agent (who shall notify the Holders)
of that fact and cause each such License Subsidiary and Material Subsidiary to
execute and deliver to the Collateral Agent a counterpart of the Guaranty and
the Security Agreement and, if applicable, shall cause the immediate parent of
such Subsidiary (including any such Foreign Subsidiary) to execute a counterpart
of the Security Agreement, and, in each case, all such further documents and
instruments as may be necessary or, in the opinion of the Required Holders, or
the Collateral Agent, desirable to create a valid and perfected First Priority
Lien on all of the assets of such Subsidiary that constitute Collateral, as well
as a pledge of the Subsidiary’s Capital Stock.”

     

    (iii) Section
5.27 of the First Lien Purchase Agreement is hereby amended and restated in its
entirety as follows:

     


    
      
         


      

      
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    “5.27           License
Subsidiaries; PacketVideo Corporation.

     

    The
Company covenants and agrees that (i) from and after the Closing Date, it shall
cause each FCC License and Spectrum Lease to be held directly by a corporation,
limited liability company, or limited partnership organized under the laws of a
jurisdiction in the United States that (a) is a wholly-owned direct or indirect
Subsidiary of the Company, (b) does not engage in any business or activity other
than the ownership and use of one or more FCC Licenses and/or Spectrum Leases
and activities incidental thereto, (c) does not own or acquire any assets other
than one or more FCC Licenses and/or Spectrum Leases and Capitol Stock of a
Subsidiary with operating personnel for FCC-related business, and (d) does not
have or incur any Indebtedness or other liabilities other than liabilities under
the Note Documents, the Second Lien Documents, the Exchange Note Documents or
the Secured Working Capital Line, liabilities imposed by laws, including tax
liabilities, or other liabilities incidental to its existence and permitted
business and activities (any corporation, limited liability company, or limited
partnership satisfying the foregoing requirements, a “License Subsidiary”) and (ii)
from and after the date of release of PacketVideo Corporation as a Guarantor
under the Guaranty and a grantor under the Security Agreement, neither
PacketVideo Corporation nor any of its Subsidiaries shall be a License
Subsidiary and no assets that would constitute Collateral had such assets been
held by the Parent, the Company or any Guarantor shall be held or acquired by
PacketVideo Corporation or any of its Subsidiaries, and in the event that
PacketVideo Corporation or any of its Subsidiaries acquires any such assets
notwithstanding the restrictions contained in this paragraph, it shall
immediately transfer such assets to the Company or a License Subsidiary that is
a Guarantor.”

     

    (b) Amendments to the Second Lien
Purchase Agreement.

     

    (i) The
definition of “Permitted Investments” in the Second Lien Purchase Agreement is
hereby amended and restated in its entirety as follows:

     

    ““Permitted Investments” means,
with respect to any Person, (i) Investments in cash and Cash Equivalents, (ii)
Investments in securities of trade creditors or customers received (x) pursuant
to any plan of reorganization or similar arrangement upon the bankruptcy or
insolvency of such trade creditors or customers, or (y) in settlement of
delinquent obligations of, and other disputes with, customers, suppliers and
others, in each case arising in the ordinary course of business or otherwise in
satisfaction of a judgment, (iii) Investments in the Notes, the First Lien Notes
and the instruments representing the Indebtedness issued and outstanding under
the Secured Working Capital Line, (iv) Investments in existence on the date
hereof and set forth on Schedule 9.1, (v)
advances to employees and officers of Note Parties of up to $500,000 in the
aggregate to fund purchases of Capital Stock of the Company under any stock option
plan or similar employment arrangements so long as no cash is actually advanced
by the Company or any of the Guarantors to such employees and officers to fund
such

     


    
      
         


      

      
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    purchases,
(vi) guarantees of Indebtedness to the extent permitted pursuant to Section
5.13, (vii) Investments in payment intangibles, chattel paper and accounts (each
as defined in the UCC), notes receivable and similar items arising or acquired
in the ordinary course of business consistent with past practice of the Note
Party, or (viii) Investments by (w) any Note Party in any other Note Party, (x)
any Subsidiary of the Company that is not a Note Party in any other Subsidiary
of the Company that is not a Note Party, or (y)  any Subsidiary of the
Company that is not a Note Party in any Note Party, provided, however, that the
resulting Indebtedness of such Note Party to such Subsidiary shall be
subordinated (I) so long as any First Lien Obligations are outstanding, to the
First Lien Obligations, (II) so long as any Second Lien Obligations are
outstanding, to the Second Lien Obligations and (III) so long as any Third Lien
Obligations are outstanding, to the Third Lien Obligations, or (z) any Note
Party in any Subsidiary of the Company that is not a Note Party, provided, however, that
Investments in any such Subsidiary that is not a Note Party, other than such
Investments existing on the date hereof and listed on Schedule 9.1, shall
not be permitted unless the Budget Condition and the Named Businesses Condition
have been met for the monthly period immediately preceding such Investment and
would be met on a pro forma basis, after giving effect to such Investment, as of
the end of the current monthly period; provided, further,
that from and after the date of release of PacketVideo Corporation as a
Guarantor under the Guaranty and a grantor under the Security Agreement, no
Investments in PacketVideo Corporation or any Subsidiary thereof shall be
permitted under this clause (z) except for the Investments that were made before
such date.”

     

    (ii) Section
5.28 of the Second Lien Purchase Agreement is hereby amended and restated in its
entirety as follows:

     

    “5.28           License
Subsidiaries; PacketVideo Corporation.

     

    The
Company and each of its Subsidiaries (i) shall cause each FCC License and
Spectrum Lease to be held directly by a corporation, limited liability company,
or limited partnership organized under the laws of a jurisdiction in the United
States that (a) is a wholly-owned direct or indirect Subsidiary of the Company,
(b) does not engage in any business or activity other than the ownership and use
of one or more FCC Licenses and/or Spectrum Leases and activities incidental
thereto, (c) does not own or acquire any assets other than one or more FCC
Licenses and/or Spectrum Leases and Capitol Stock of a Subsidiary with operating
personnel for FCC-related business, and (d) does not have or incur any
Indebtedness or other liabilities other than liabilities under the Note
Documents, the First Lien Documents, the Secured Working Capital Line or the
Exchange Note Documents, liabilities imposed by laws, including tax liabilities,
or other liabilities incidental to its existence and permitted business and
activities (any corporation, limited liability company, or limited partnership
satisfying the foregoing requirements, a “License Subsidiary”) and (ii)
from and after the date of release of PacketVideo Corporation as a Guarantor
under the Guaranty and a

     


    
      
         


      

      
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    grantor
under the Security Agreement, (a) shall cause PacketVideo Corporation and each
of its Subsidiaries not to be a License Subsidiary, (b) shall not permit
PacketVideo Corporation or any of its Subsidiaries to hold or acquire any assets
that would constitute Collateral had such assets been held by the Parent, the
Company or any Guarantor, and (c) in the event that PacketVideo Corporation or
any of its Subsidiaries acquires any such assets notwithstanding the
restrictions contained in this paragraph, shall cause PacketVideo Corporation or
such Subsidiary to immediately transfer such assets to the Company or a License
Subsidiary that is a Guarantor.”

     

    (iii) Section
8.1(b) of the Second Lien Purchase Agreement is hereby amended and restated in
its entirety as follows:

     

    “(b)           Asset
Sales.  Subject to the terms of Section 5.14, following the
satisfaction in full of the First Lien Obligations, within three (3) Business
Days of any Asset Sale consummated simultaneously with or after the satisfaction
in full of the First Lien Obligations, the Company shall make a redemption of
the Notes and the notes representing the Company’s obligations under the Secured
Working Capital Line on a pro rata basis (based on the aggregate outstanding
principal amount thereof) in an amount equal to the Net Proceeds of such Asset
Sale (or, in the case of any redemption of the Notes and the notes representing
the Company’s obligations under the Secured Working Capital Line occurring
simultaneously with the satisfaction in full of the First Lien Obligations, any
excess Net Proceeds of such Asset Sale following the satisfaction in full of the
First Lien Obligations), at a redemption price equal to the Redemption Amount
(and in the case of the notes representing the Company’s obligations under the
Secured Working Capital Line, the “Redemption Amount” as defined in the
definitive note purchase agreement entered into in connection with the Secured
Working Capital Line) of the Notes and the notes representing the Company’s
obligations under the Secured Working Capital Line, as applicable, to be
redeemed; provided that the
Company shall not be required to redeem any Notes under this Section 8.1(b) or
any notes representing the Company’s obligations under the Secured Working
Capital Line under Section 8.1(b) of the definitive note purchase agreement
entered into in connection with the Secured Working Capital Line until the
aggregate Principal Amount of the Notes and the notes representing the Company’s
obligations under the Secured Working Capital Line to be redeemed shall exceed
$2,500,000.  For the avoidance of doubt, if any redemption of the
Notes under this Section 8.1(b) and the notes representing
the  Company’s obligations under the Secured Working Capital Line
under Section 8.1(b) of the definitive note purchase agreement entered into in
connection with the Secured Working Capital Line shall occur simultaneously with
the satisfaction in full of the First Lien Obligations, then the amount of the
redemption required by this Section 8.1(b) and Section 8.1(b) of the definitive
note purchase agreement entered into in connection with the Secured Working
Capital Line shall be reduced, on a pro rata basis (based on the aggregate
outstanding principal amount

     


    
      
         


      

      
        10

        
          

        

      

      
         


      

    


    of the
Notes and the notes representing the Company’s obligations under the Secured
Working Capital Line), by the amount so used to satisfy First Lien
Obligations.”

     

    (c) Amendments to the Third Lien
Purchase Agreement.

     

    (i) Section
5.28 of the Third Lien Purchase Agreement is hereby amended and restated in its
entirety as follows:

     

    “5.28           License
Subsidiaries; PacketVideo Corporation.

     

    Parent
Issuer and each of its Subsidiaries (i) shall cause each FCC License and
Spectrum Lease to be held directly by a corporation, limited liability company,
or limited partnership organized under the laws of a jurisdiction in the United
States that (a) is a wholly-owned direct or indirect Subsidiary of Parent
Issuer, (b) does not engage in any business or activity other than the ownership
and use of one or more FCC Licenses and/or Spectrum Leases and activities
incidental thereto, (c) does not own or acquire any assets other than one or
more FCC Licenses and/or Spectrum Leases and Capitol Stock of a Subsidiary with
operating personnel for FCC-related business, and (d) does not have or incur any
Indebtedness or other liabilities other than liabilities under the Note
Documents, the First Lien Documents, the Second Lien Documents or the Secured
Working Capital Line, liabilities imposed by laws, including tax liabilities, or
other liabilities incidental to its existence and permitted business and
activities (any corporation, limited liability company, or limited partnership
satisfying the foregoing requirements, a “License Subsidiary”) and (ii)
from and after the date of release of PacketVideo Corporation as a Guarantor
under the Guaranty and a grantor under the Security Agreement, (a) shall cause
PacketVideo Corporation and each of its Subsidiaries not to be a License
Subsidiary, (b) shall not permit PacketVideo Corporation or any of its
Subsidiaries to hold or acquire any assets that would constitute Collateral had
such assets been held by the Parent, the Company or any Guarantor, and (c) in
the event that PacketVideo Corporation or any of its Subsidiaries acquires any
such assets notwithstanding the restrictions contained in this paragraph, shall
cause PacketVideo Corporation or such Subsidiary to immediately transfer such
assets to the Company or a License Subsidiary that is a Guarantor.”

     

    Section
7. Working Capital Line
Amendments.

     

    (a) Amendments to the First Lien
Purchase Agreement.

     

    (i) The
definition of “Asset Sales” in the First Lien Purchase Agreement is hereby
amended and restated in its entirety as follows:

     

    ““Asset Sales” means the sale,
lease, sale and leaseback, assignment, conveyance, transfer or other disposition
by the

     


    
      
         


      

      
        11

        
          

        

      

      
         


      

    


    Company
or any of its Subsidiaries to any Person of any right or interest in or to
property of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible, including, without limitation, the Capital Stock of any
of the Company’s Subsidiaries, provided that the sale, conveyance or other
disposition of all or substantially all of the assets of the Company and its
Subsidiaries taken as a whole will be governed by the provisions of Section 5.15
and not by the provisions of Section 5.14.  In addition, the term
“Asset Sale” shall exclude:

     

    (a)               sales
or other dispositions of obsolete, damaged, surplus, worn-out, condemned,
unsuitable or not required property and equipment;

     

    (b)               licensing
of intellectual property in the ordinary course of business;

     

    (c)               sale
or transfer of cash or Cash Equivalents in the ordinary course of
business;

     

    (d)               any
surrender or waiver of contract rights or the settlement release or surrender of
contract, tort or other litigation claims in the ordinary course of
business;

     

    (e)               any
sale or disposition of property or assets by a Subsidiary to the Company or a
Guarantor, or by a Subsidiary that is not a Guarantor to another Subsidiary that
is not a Guarantor;

     

    (f)                         any
transaction or series of related transactions resulting in aggregate gross
proceeds to the Company and its Subsidiaries of $250,000 or less;
and

     

    (g)               any
sale or disposition of Working Capital Collateral securing the Secured Working
Capital Line.”

     

    (ii) Clause
(iii) of the definition of “Restricted Payments” in the First Lien Purchase
Agreement is hereby amended and restated in its entirety as
follows:

     

    “(iii)
any payment made to retire, or to obtain the surrender of, any outstanding,
options or other rights to acquire shares of any class of Capital Stock of
Company or Parent now or hereafter outstanding (other than the Warrants, the
Warrant Shares, any warrants issued in connection with the Second Lien Note
Purchase Agreement or the Secured Working Capital Line or, if applicable,
Purchaser Units) and”

     


    
      
         


      

      
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    (b) Amendments
to the Second Lien Purchase Agreement.

     

    (i) The
definition of “Asset Sales” in the Second Lien Purchase Agreement is hereby
amended and restated in its entirety as follows:

     

    ““Asset Sales” means the sale,
lease, sale and leaseback, assignment, conveyance, transfer or other disposition
by the Company or any of its Subsidiaries to any Person of any right or interest
in or to property of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible, including, without limitation, the Capital Stock
of any of the Company’s Subsidiaries, provided that the
sale, conveyance or other disposition of all or substantially all of the assets
of the Company and its Subsidiaries taken as a whole will be governed by the
provisions of Section 5.15 and not by the provisions of Section
5.14.  In addition, the term “Asset Sale” shall exclude:

     

    (a)               sales
or other dispositions of obsolete, damaged, surplus, worn-out, condemned,
unsuitable or not required property and equipment;

     

    (b)               licensing
of intellectual property in the ordinary course of business;

     

    (c)               sale
or transfer of cash or Cash Equivalents in the ordinary course of
business;

     

    (d)               any
surrender or waiver of contract rights or the settlement release or surrender of
contract, tort or other litigation claims in the ordinary course of
business;

     

    (e)               any
sale or disposition of property or assets by a Subsidiary of the Company to the
Company or a Guarantor, or by a Subsidiary of the Company that is not a
Guarantor to another Subsidiary of the Company that is not a
Guarantor;

     

    (f)                         any
transaction or series of related transactions resulting in aggregate gross
proceeds to the Company and its Subsidiaries of $250,000 or less;
and

     

    (g)               any
sale or disposition of Working Capital Collateral securing the Secured Working
Capital Line.”

     

    (ii) Clause
(iii) of the definition of “Restricted Payments” in the Second Lien Purchase
Agreement is hereby amended and restated in its entirety as
follows:

     


    
      
         


      

      
        13

        
          

        

      

      
         


      

    


    


     

    “(iii)
any payment made to retire, or to obtain the surrender of, any outstanding,
options or other rights to acquire shares of any class of Capital Stock of the
Company or Parent now or hereafter outstanding (other than the Warrants, any
outstanding warrants issued pursuant to the First Lien Warrant Agreement or any
warrants issued in connection with the Secured Working Capital Line)
and”

     

    (iii) The
definition of “Note Documents” in the Second Lien Purchase Agreement is hereby
amended and restated in its entirety as follows:

     

    ““Note Documents” means this
Agreement, the Notes, the Warrants, the Warrant Agreements, the Registration
Rights Agreement, the Guaranty, the Parent Guaranty, the Collateral Documents,
the Collateral Agency Agreement, the Intercreditor Agreement, and all
certificates, instruments and other documents made or delivered in connection
herewith and therewith; provided, however, that solely
as used in Sections 5.10(b) and 5.14(a)(1), the term “Note Documents” shall be
deemed to include any definitive note purchase agreement entered into in
connection with the Secured Working Capital Line.”

     

    (c) Amendments to the Third Lien
Exchange Agreement.

     

    (i) The
definition of “Asset Sales” in the Third Lien Exchange Agreement is hereby
amended and restated in its entirety as follows:

     

    ““Asset Sales” means the sale,
lease, sale and leaseback, assignment, conveyance, transfer or other disposition
by Parent Issuer or any of its Subsidiaries to any Person of any right or
interest in or to property of any kind whatsoever, whether real, personal or
mixed and whether tangible or intangible, including, without limitation, the
Capital Stock of any of Parent Issuer’s Subsidiaries, provided that the
sale, conveyance or other disposition of all or substantially all of the assets
of Parent Issuer and its Subsidiaries taken as a whole will be governed by the
provisions of Section 5.15 and not by the provisions of Section
5.14.  In addition, the term “Asset Sale” shall exclude:

     

    (a)               sales
or other dispositions of obsolete, damaged, surplus, worn-out, condemned,
unsuitable or not required property and equipment;

     

    (b)               licensing
of intellectual property in the ordinary course of business;

     


    
      
         


      

      
        14

        
          

        

      

      
         


      

    


    


     

    (c)               sale
or transfer of cash or Cash Equivalents in the ordinary course of
business;

     

    (d)               any
surrender or waiver of contract rights or the settlement release or surrender of
contract, tort or other litigation claims in the ordinary course of
business;

     

    (e)               any
sale or disposition of property or assets by a Subsidiary of Parent Issuer to
Parent Issuer or a Guarantor, or by a Subsidiary of Parent Issuer that is not a
Guarantor to another Subsidiary of Parent Issuer that is not a
Guarantor;

     

    (f)                         any
transaction or series of related transactions resulting in aggregate gross
proceeds to Parent Issuer and its Subsidiaries of $250,000 or less;
and

     

    (g)               any
sale or disposition of Working Capital Collateral securing the Secured Working
Capital Line.”

     

    (ii) Clause
(iii) of the definition of “Restricted Payments” in the Third Lien Exchange
Agreement is hereby amended and restated in its entirety as
follows:

     

    “(iii)
any payment made to retire, or to obtain the surrender of, any outstanding,
options or other rights to acquire shares of any class of Capital Stock of the
Company or Parent Issuer now or hereafter outstanding (other than any
outstanding warrants issued pursuant to the First Lien Warrant Agreement or the
Second Lien Warrant Agreements or any warrants issued in connection with the
Secured Working Capital Line) and”

     

    (iii) The
definition of “Second Lien Documents” in the Third Lien Exchange Agreement is
hereby amended and restated in its entirety as follows:

     

    ““Second Lien Documents” means
the Second Lien Notes, the Second Lien Purchase Agreement, the Second Lien
Guaranty, the Second Lien Parent Guaranty, the Second Lien Collateral Documents,
the Second Lien Collateral Agency Agreement, the Second Lien Warrant Agreements
and the Second Lien Registration Rights Agreement and all certificates,
instruments and other documents made or delivered in connection herewith and
therewith; provided, however, that solely
as used in Sections 5.10(b) and 5.14(a)(1), the term “Second Lien Documents”
shall be deemed to include any definitive note purchase agreement entered into
in connection with the Secured Working Capital Line.”

     


    
      
         


      

      
        15

        
          

        

      

      
         


      

    


    


     

    Section
8. Conditions
Precedent.

     

    (a) First Lien.  Except
as set forth in Sections 1 and 2, this Amendment and Waiver shall become
effective with respect to the First Lien Purchase Agreement as of the date
hereof when this Amendment and Waiver has been duly executed and delivered by
Parent, NextWave, PacketVideo, the other guarantors signatory hereto and the
Required Holders under the First Lien Purchase Agreement.

     

    (b) Second
Lien.  Except as set forth in Sections 1 and 2, this Amendment
and Waiver shall become effective with respect to the Second Lien Purchase
Agreement as of the date hereof when this Amendment and Waiver has been duly
executed and delivered by Parent, NextWave, PacketVideo, the other guarantors
signatory hereto and the Required Holders under the Second Lien Purchase
Agreement.

     

    (c) Third Lien.  Except
as set forth in Sections 1 and 2, this Amendment and Waiver shall become
effective with respect to the Third Lien Exchange Agreement as of the date
hereof when this Amendment and Waiver has been duly executed and delivered by
Parent, NextWave, PacketVideo, the other guarantors signatory hereto and the
Required Holders under the Third Lien Exchange Agreement.

     

    (d) Additional Provision with Respect to
Waivers.  The waivers set forth in Sections 1 through
4 of this
Amendment and Waiver shall become effective with respect to the First Lien
Notes, Second Lien Notes and/or Third Lien Notes to the extent and at the time
the signatures of the requisite Holders of each series of such notes is
obtained, without regard to the effectiveness of the remaining provisions of
this Amendment and Waiver.

     

    Section
9. Representations and
Warranties of NextWave and Guarantors.  In order to induce the
noteholders party hereto to enter into this Amendment and Waiver, each of
NextWave, Parent, PacketVideo, Broadband and the other Guarantors under each of
the Note Agreements, by its execution of a counterpart of this Amendment and
Waiver, represents and warrants that:

     

    (a) such Note
Party has all requisite corporate, partnership or limited liability company
power and authority, as applicable, to enter into this Amendment and Waiver and
to carry out the transactions contemplated by, and perform its obligations
under, the Note Agreements as modified by this Amendment and Waiver (the “Amended
Agreements”);

     

    (b) the
execution and delivery of this Amendment and Waiver and the performance of the
Amended Agreements have been duly authorized by all necessary corporate, limited
liability company and/or partnership action, as applicable, on the part of each
of NextWave, Parent, PacketVideo, Broadband and the other
Guarantors;

     

    (c) the
execution and delivery by such Note Party of this Amendment and Waiver and the
performance by each of NextWave, Parent, PacketVideo, Broadband and

     


    
      
         


      

      
        16

        
          

        

      

      
         


      

    


    the other
Guarantors of the Amended Agreements do not and will not (i) violate any
provision of any law or any governmental rule or regulation applicable to such
Note Party, or violate any Organizational Document of NextWave, Parent,
PacketVideo, Broadband or any other Guarantor, (ii) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any FCC License, Spectrum Lease or other Material Contract of any Note
Party, (iii) result in or require the creation or imposition of any Lien upon
any of the properties or assets of any Note Party (other than Liens pursuant to
the Note Documents), or (iv) require any approval of stockholders, partners or
members or any approval or consent of any Person under any Contractual
Obligation of any Note Party, except for such approvals or consents obtained on
or before the date of this Amendment and Waiver;

     

    (d) the
execution and delivery by each of NextWave, Parent, PacketVideo, Broadband and
the other Guarantors of this Amendment and Waiver and the performance by each of
NextWave, Parent, PacketVideo, Broadband and the other Guarantors of the Amended
Agreements do not require any Governmental Authorization by any Governmental
Authority (including the FCC) except to the extent obtained on or before the
date of this Amendment and Waiver;

     

    (e) this
Amendment and Waiver has been duly executed and delivered by each of NextWave,
Parent, PacketVideo, Broadband and the other Guarantors and this Amendment and
Waiver and the Amended Agreements are the legally valid and binding obligations
of such Note Party, enforceable against such Note Party in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors’
rights generally or by equitable principles relating to
enforceability;

     

    (f) after
giving effect to this Amendment and Waiver, no Default or Event of Default
exists under the Note Agreements;

     

    (g) no Holder
has received a fee in consideration of such Holder’s consent to this Amendment
and Waiver; and

     

    (h) after
giving effect to this Amendment and Waiver, all representations and warranties
contained in each of the Note Agreements are and shall be true and correct in
all material respects on and as of the date hereof and thereof, as the case may
be, except to the extent such representations and warranties specifically relate
to an earlier date, in which case they were true and correct in all material
respects on and as of such earlier date; and

     

    (i) after
giving effect to this Amendment and Waiver, it has performed or is in the
process of performing in all material respects all agreements to be performed on
its part as set forth in the Amended Agreements.

     

    Section
10. Acknowledgement of Security
Interests.  Each Note Party hereby acknowledges, confirms and
agrees that, except for the releases of PacketVideo and its

     


    
      
         


      

      
        17

        
          

        

      

      
         


      

    


    subsidiaries
expressly set forth herein or specifically contemplated hereby, each Collateral
Agent, for itself and the benefit of the respective Holders, has and shall
continue to have valid, enforceable and perfected liens upon and security
interests in the Collateral granted to such Collateral Agent, for itself and the
benefit of such Holders, pursuant to the respective Note Documents.

     

    Section
11. Guarantor Acknowledgment and
Consent.  Each guarantor (or pledgor) listed on the signatures
pages hereof other than PacketVideo (each, a “Guarantor”) hereby
acknowledges and agrees that any of the subsidiary, Guaranty and Collateral
Documents (each, a “Credit
Support Document”) to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment and Waiver.  Each
Guarantor represents and warrants that, after giving effect to this Amendment
and Waiver, all representations and warranties contained in the Amended
Agreements and the Credit Support Documents to which it is a party or otherwise
bound are true, correct and complete in all material respects on and as of the
date of this Amendment and Waiver to the same extent as though made on and as of
the date hereof except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true and correct
in all material respects on and as of such earlier date.

     

    Section
12. Governing
Law.  THIS AMENDMENT AND WAIVER SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

     

    Section
13. Miscellaneous.

     

    (a) Reference to and Effect on
the Note Agreements and the Other Note Documents.  On and after
the date of this Amendment and Waiver, each reference in any Note Agreement to
“this Agreement”, “hereunder”, “hereof”, “herein” or words of like import
referring to such Note Agreement, and each reference in the other Note Documents
to the “Purchase Agreement”, “Exchange Agreement”, “thereunder”, “thereof” or
words of like import referring to such Note Agreement shall mean and be a
reference to the applicable Amended Agreement.

     

    (b) Except as
specifically amended by this Amendment and Waiver, the Note Agreements and the
other Note Documents shall remain in full force and effect and are hereby
ratified and confirmed.

     

    (c) The
execution, delivery and performance of this Amendment and Waiver shall not,
except as expressly provided herein, constitute a waiver of any provision of, or
operate as a waiver of any right, power or remedy of any Holder under, any Note
Agreement or any of the other Note Documents.

     

    Section
14. Fees and
Expenses.  NextWave acknowledges that all costs, fees and
expenses as described in Section 1.4 of the First Lien Purchase Agreement
and

     


    
      
         


      

      
        18

        
          

        

      

      
         


      

    


    Section 1.5
of the Second Lien Purchase Agreement incurred by the Holders with respect to
this Amendment and Waiver and the documents and transactions contemplated hereby
shall be for the account of NextWave.  Parent and NextWave each
acknowledge that all costs, fees and expenses as described in Section 1.5
of the Third Lien Exchange Agreement incurred by the Holders with respect to
this Amendment and Waiver and the documents and transactions contemplated hereby
shall be for the account of Parent and NextWave.

     

    Section
15. Headings.  Section
and subsection headings in this Amendment and Waiver are included herein for
convenience of reference only and shall not constitute a part of this Amendment
and Waiver for any other purpose or be given any substantive
effect.

     

    Section
16. Counterparts.  This
Amendment and Waiver may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.

     

    [Remainder
of Page Intentionally Left Blank – Signature Pages Follow]

     


    
      
         


      

      
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          [Signature
Page to Noteholder Limited Waiver]

        

         


      

      
        20

        
          

        

      

      
         


      

    


    IN WITNESS WHEREOF, the
undersigned have caused this Amendment and Waiver to be executed by their
respective duly authorized officers as of the date first written
above.

     

    
      	
            	NEXTWAVE WIRELESS
      LLC	 
	 	 	 	 
	 	 	 	 
	
               

            	
              By:
      

            	/s/ Frank
      Cassou	 
	 	 	Name:	Frank
      Cassou	 
	 	 	Title:	Secretary	 


       

      
         

        
          
            	 	
                    NEXTWAVE BROADBAND
      INC.,

                    
                      NW
      SPECTRUM CO.,

                      AWS
      WIRELESS INC.,

                      and

                      WCS WIRELESS
      LICENSE SUBSIDIARY, LLC

                    

                  	 
	 	 	 	 
	 	 	 	 
	
                     

                  	
                    By:
      

                  	/s/ Frank
      Cassou	 
	 	 	Name:	Frank
      Cassou	 
	 	 	Title:	Secretary	 


          

        

         

        
           

          
            
              	 	NEXTWAVE
      WIRELESS INC.	 
	 	 	 	 
	 	 	 	 
	
                       

                    	
                      By:
      

                    	/s/ James
      C. Brailean	 
	 	 	Name:	James
      C. Brailean	 
	 	 	Title:	
                      CEO

                    	 


            

          

        

      

    

     

    


     


    
      
        
          [Signature
Page to Noteholder Limited Waiver]

        

         


      

      
        21

        
          

        

      

      
         


      

    


    REQUIRED
NOTEHOLDERS

    


    


    FIRST
LIEN NOTEHOLDERS

     
 

    AVENUE
SPECIAL SITUATIONS FUND IV, L.P. 

    


    By: /s/ Sonia
Gardner                                                                

         Name:
Sonia Gardner

         Title:
President and Managing Partner

    


    


    AVENUE
INVESTMENTS, L.P.

    


    By: /s/ Sonia
Gardner                                                                

         Name:
Sonia Gardner

         Title:
President and Managing Partner

    


    


    AVENUE
SPECIAL SITUATIONS FUND V, L.P.

    


    By: /s/ Sonia
Gardner                                                                

         Name:
Sonia Gardner

         Title:
President and Managing Partner

    


    DK
ACQUISITION PARTNERS, L.P.

    


    By: /s/ Avi
Friedman                                                                

         Name:
Avi Friedman

         Title:
General Partner

    


    


    HIGHBRIDGE
INTERNATIONAL LLC

    By:  Highbridge
Capital Management, LLC

    Its
Trading Manager

    


    
      By:________________

           Name:

    

         Title:

    


    


    INVESTCORP
INTERLACHEN MULTI-

    STRATEGY
MASTER FUND LIMITED

    


    By: /s/ Gregg T.
Colburn                                                      

         Name:
Gregg T. Colburn

         Title:
Authorized Signatory

    


    
      



      
        
          
            [Signature
Page to Noteholder Limited Waiver]

          

           


        

        
          
            

          

        

        
           


        

      



     

    
 

    POLYGON
DEBT HOLDINGS LIMITED

    


    By:________________

         Name:

         Title:

    


    


    SILVER
OAK CAPITAL, L.L.C.

    


    By: /s/ Thomas M.
Fuller                                                      

         Name:
Thomas M. Fuller

         Title:
Authorized Signatory

     

     

     

     

     

     

     

     

     

     

     


    
      
        
          [Signature
Page to Noteholder Limited Waiver]

        

         


      

      
        
          

        

      

      
         


      

    


    SECOND
LIEN NOTEHOLDERS

    


    AVENUE
AIV US, L.P.

    By:  Avenue
AIV US Genpar, LLC, its General Partner

    


    By: /s/ Sonia
Gardner                                                                

         Name:
Sonia Gardner

         Title:
President and Managing Partner

    


    SOLA
LTD

    


    By: /s/ Chris
Pucillo                                                                

         Name:
Chris Pucillo

         Title:
Director

     

     

     

     

     

     

     

     

     


    
      
        
          [Signature
Page to Noteholder Limited Waiver]

        

         


      

      
        23

        
          

        

      

      
         


      

    


    THIRD
LIEN NOTEHOLDERS

    


    AVENUE
CDP GLOBAL OPPORTUNITIES FUND,

    L.P.

    By:  Avenue
Global Opportunities Fund GenPar, LLC, its General Partner

    


    By: /s/ Sonia
Gardner                                                                

         Name:
Sonia Gardner

         Title:
President and Managing Partner

    


    


    AVENUE
INTERNATIONAL MASTER L.P.

    By:  Avenue
International Master Fund GenPar, Ltd., its General Partner

    


    By: /s/ Sonia
Gardner                                                                

         Name:
Sonia Gardner

         Title:
President and Managing Partner

    


    AVENUE
INVESTMENTS, L.P.

    By:  Avenue
Partners, LLC, its General Partner

    


    By: /s/ Sonia
Gardner                                                                

         Name:
Sonia Gardner

         Title:
President and Managing Partner

    


    AVENUE
SPECIAL SITUATIONS FUND IV, L.P.

    By:  Avenue
Capital Partners IV, LLC, its General

    Partner

    By:  GL
Partners IV, LLC, its Managing Member

    


    By: /s/ Sonia
Gardner                                                                

         Name:
Sonia Gardner

         Title:
President and Managing Partner

    


    D.E. SHAW
LAMINAR PORTFOLIOS, L.L.C.

    


    By: /s/ Brandon
Baer                                                                

         Name:
Brandon Baer

         Title:
Authorized Signatory

    


    


    D.E. SHAW
VALENCE PORTFOLIOS, L.L.C.

    By:  D.E.
Shaw & Co., L.P., as managing member

    


    By: /s/ Joseph
Prior                                                      

         Name:
Joseph Prior

         Title:
Authorized Signatory

     

    
      



      
        
          
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    KEVIN
FINN & MADELINE MARIN FINN LIVINGTRUST

    


    By: /s/ Kevin
Finn                                                      

         Name:
Kevin Finn

         Title:
Trustee

    


    


    HIGHBRIDGE
CONVERTIBLE ARBITRAGE MASTER FUND, L.P.

    By:  Highbridge
Capital Management, LLC

    Its
Trading Manager

    


    
      By:________________
     Name:

         Title:

    


    HIGHBRIDGE
INTERNATIONAL LLC

    By:  Highbridge
Capital Management, LLC

    Its
Trading Manager

    


    
      By:________________
     Name:

         Title:

    


    


    INVESTCORP
INTERLACHEN MULTI-STRATEGY MASTER FUND LIMITED

    By:  Interlachen
Capital Group LP, Authorized Signatory

    


    By: /s/ Gregg T.
Colburn                                                      

         Name:
Gregg T. Colburn

         Title:
Authorized Signatory

    


    


    /s/ Douglas F.
Manchester                                                      

    Douglas
F. Manchester

    


    


    NAVATION
INC.

    


    
      By:________________
     Name:

         Title:

     

    
      



      
        
          
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    PERMAL
YORK LIMITED

    By:  JGD
Management Corp., its Investment Manager

    


    By: /s/ Adam J.
Semler                                                                

         Name:
Adam J. Semler

         Title:
CFO

    


    


    SOLA
LTD

    


    By: /s/ Chris
Pucillo                                                                

         Name:
Chris Pucillo

         Title:
Director

    


    SOLUS
CORE OPPORTUNITIES MASTER FUNDLTD

    


    By: /s/ Chris
Pucillo                                                                

         Name:
Chris Pucillo

         Title:
Director

    


    


    KINGS
ROAD INVESTMENTS LTD.

    


    
      By:________________
     Name:

         Title:

    


    


    YORK
CAPITAL MANAGEMENT, L.P.

    By:  Dinan
Management, LLC

    


    By: /s/ Adam J.
Semler                                                                

         Name:
Adam J. Semler

         Title:
CFO

    


    


    


    YORK
CREDIT OPPORTUNITIES FUND, L.P.

    By:  York
Credit Opportunities Domestic Holdings, LLC, its General Partner

    


    By: /s/ Adam J.
Semler                                                                

         Name:
Adam J. Semler

         Title:
CFO


     

    
      



      
        
          
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    YORK
CREDIT OPPORTUNITIES UNIT TRUST

    By:  York
Credit Opportunities Offshore Holdings, LLC, its Investment Manager

    


    By: /s/ Adam J.
Semler                                                                

         Name:
Adam J. Semler

         Title:
CFO

    


    


    YORK
GLOBAL VALUE PARTNERS, L.P.

    By:  York
Global Value Holdings, LLC, its GeneralPartner

    


    By: /s/ Adam J.
Semler                                                                

         Name:
Adam J. Semler

         Title:
CFO

    


    


    YORK
INVESTMENT LIMITED

    By:  York
Offshore Holdings, Ltd., its InvestmentManager

    


    By: /s/ Adam J.
Semler                                                                

         Name:
Adam J. Semler

         Title:
CFO

    


    


    YORK
SELECT, L.P.

    By:  York
Select Domestic Holdings, LLC, its General

    Partner

    


    By: /s/ Adam J.
Semler                                                                

         Name:
Adam J. Semler

         Title:
CFO

    


    


    YORK
SELECT UNIT TRUST

    By:  York
Select Offshore Holdings, LLC, its Investment Manager

    


    By: /s/ Adam J.
Semler                                                                

         Name:
Adam J. Semler

         Title:
CFO

    


    



    
      
        
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