Exhibit 10.1
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), GUARANTOR (AS
DEFINED BELOW), THE SUBSIDIARIES OF THE COMPANY PARTY THERETO, THE BANK OF NEW
YORK MELLON, AS FIRST LIEN COLLATERAL AGENT (AS DEFINED THEREIN), GUARANTIED
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 GUARANTIED 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 GUARANTY, THE PROVISIONS OF THE INTERCREDITOR
AGREEMENT SHALL CONTROL.
SECOND LIEN PARENT GUARANTY
This SECOND LIEN PARENT GUARANTY (this Guaranty) is entered into as of October
9, 2008 by NextWave Wireless Inc., a Delaware corporation (the Guarantor), in
favor of and for the benefit of The Bank of New York Mellon, as Collateral Agent
for and as representative of (in such capacity, together with its successors and
assigns herein called Guarantied Party) the holders of the Notes (as defined in
the Purchase Agreement referred to below) (sometimes referred to as Holders or
Beneficiaries) issued pursuant to that certain Second Lien Subordinated Note
Purchase Agreement dated as the date hereof (as it may be amended, supplemented
or otherwise modified from time to time, the Purchase Agreement; capitalized
terms defined therein and not otherwise defined herein being used herein as
therein defined) by and among NextWave Wireless LLC, a Delaware limited
liability company (Company), Guarantor, the Subsidiaries of Company from time to
time party thereto, the Purchasers named therein and the Guarantied Party, as
Collateral Agent.
WHEREAS, Guarantor owns all of the issued and outstanding Capital Stock of
Company;
WHEREAS, the Purchase Agreement requires that Companys obligations under the
Note Documents be guarantied by Guarantor; and
WHEREAS, Guarantor is willing irrevocably and unconditionally to guaranty such
obligations of Company.
NOW, THEREFORE, based upon the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Guarantor hereby agrees as follows:
1.
Guaranty. Guarantor unconditionally guaranties, as primary obligor and
not merely as surety, the due and punctual payment in full of all Guarantied
Obligations (as hereinafter defined) when the same shall become due, whether at
stated maturity, by acceleration,