Exhibit 10.3
EXECUTION VERSION
REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT DATED AS OF OCTOBER 9, 2008 (AS
AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE
"INTERCREDITOR AGREEMENT"), AMONG THE COMPANY (AS DEFINED BELOW), PARENT (AS
DEFINED BELOW), THE SUBSIDIARIES OF THE COMPANY PARTY THERETO, THE BANK OF NEW
YORK MELLON, AS FIRST LIEN COLLATERAL AGENT (AS DEFINED THEREIN), THE SECURED
PARTY (AS DEFINED BELOW), AS SECOND LIEN COLLATERAL AGENT (AS DEFINED THEREIN),
AND THE BANK OF NEW YORK MELLON, AS THIRD LIEN COLLATERAL AGENT (AS DEFINED
THEREIN). EACH BENEFICIARY HEREUNDER (A) ACKNOWLEDGES THAT IT HAS RECEIVED A
COPY OF THE INTERCREDITOR AGREEMENT, (B) CONSENTS TO THE PAYMENT AND LIEN
SUBORDINATION PROVIDED FOR IN THE INTERCREDITOR AGREEMENT, (C) AGREES THAT IT
WILL BE BOUND BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS OF THE
INTERCREDITOR AGREEMENT AND (D) AUTHORIZES AND INSTRUCTS THE SECURED PARTY TO
ENTER INTO THE INTERCREDITOR AGREEMENT AS COLLATERAL AGENT AND ON BEHALF OF SUCH
NOTE HOLDER. THE FOREGOING PROVISIONS ARE INTENDED AS AN INDUCEMENT TO THE NOTE
HOLDERS UNDER THE FIRST LIEN PURCHASE AGREEMENT TO EXTEND CREDIT TO THE COMPANY
AND SUCH NOTE HOLDERS ARE INTENDED THIRD PARTY BENEFICIARIES OF SUCH PROVISIONS.
IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE
INTERCREDITOR AGREEMENT AND THIS AGREEMENT, THE PROVISIONS OF THE INTERCREDITOR
AGREEMENT SHALL CONTROL.
SECOND LIEN PLEDGE AND SECURITY AGREEMENT
This SECOND LIEN PLEDGE AND SECURITY AGREEMENT (this Agreement) is dated as of
October 9, 2008 and entered into by and among NEXTWAVE WIRELESS LLC, a Delaware
limited liability company (Company), NEXTWAVE WIRELESS INC., a Delaware
corporation (Parent), each of THE UNDERSIGNED DIRECT AND INDIRECT SUBSIDIARIES
of Company and Parent (each of such undersigned Subsidiaries being a Subsidiary
Grantor and collectively Subsidiary Grantors) and each ADDITIONAL GRANTOR that
may become a party hereto after the date hereof in accordance with Section 16
hereof (each of Company, Parent, each Subsidiary Grantor, and each Additional
Grantor being a Grantor and collectively the Grantors) and THE BANK OF NEW YORK
MELLON ("BONY"), as Collateral Agent for and representative of (in such capacity
herein called Secured Party) the Beneficiaries (as hereinafter defined).
PRELIMINARY STATEMENTS
A.
Pursuant to that certain Second Lien Subordinated Note Purchase
Agreement dated as of October 9, 2008 (said Second Lien Subordinated Purchase
Agreement, as it may hereafter be amended, restated, supplemented or otherwise
modified from time to time, being the Purchase Agreement; the terms defined
therein and not otherwise defined in Section 26 or elsewhere herein being used
herein as therein defined) by and among Company, Parent, each of the other
Guarantors named therein, each of the Purchasers named therein and Secured
Party, as Collateral Agent, Company has issued Notes to the Purchasers (together
with their successors and assigns and any subsequent holder of Notes permitted
under the Purchase Agreement, Holders).
B.
Secured Party and Holders have entered into that certain Second Lien
Collateral Agency Agreement dated as of the date hereof (the Collateral Agency
Agreement),