EXHIBIT 99.1
FIRST LIEN SENIOR INCREMENTAL NOTES AGREEMENT
THIS FIRST LIEN SENIOR INCREMENTAL NOTES AGREEMENT is dated as of May 27, 2010 (this “Agreement”) and entered into by and among the purchasers (each, a “Purchaser” and collectively, the “Purchasers”) set forth on Supplemental Schedule 1.2A attached hereto (“Supplemental Schedule 1.2A”), NEXTWAVE WIRELESS LLC, a Delaware limited liability company (“Company”), NEXTWAVE WIRELESS INC., a Delaware corporation (“Parent”), and each Guarantor listed on the signature pages hereto, and acknowledged by THE BANK OF NEW YORK MELLON, as Collateral Agent.
RECITALS:
WHEREAS, reference is hereby made to the Purchase Agreement dated as of July 17, 2006, by and among Company, Parent, the guarantors party thereto from time to time, the noteholders thereunder from time to time and The Bank of New York Mellon, as Collateral Agent (as the same has been and may be further amended, restated, supplemented or otherwise modified from time to time, the “First Lien Purchase Agreement”; capitalized terms used (but not otherwise defined) herein shall have the respective meanings ascribed thereto in the First Lien Purchase Agreement);
WHEREAS, Section 1.1 of the First Lien Purchase Agreement, as amended by the Amendment and Limited Waiver to the Note Agreements (the “Amendment and Waiver”) dated as of March 16, 2010, permits Company to issue from time to time up to $25,000,000 aggregate Stated Value of senior secured Notes at the agreed purchase price set forth in connection with such issuance on a supplemental Schedule 1.2A to the First Lien Purchase Agreement, such senior secured Notes being Senior Incremental Notes;
WHEREAS, pursuant to the Commitment Letter dated as of March 16, 2010 (the “Commitment Letter”), among the Purchasers, Company and Parent, the Purchasers have agreed to purchase, from time to time, up to $25,000,000 aggregate Stated Value of the Senior Incremental Notes, each such issuance and purchase to be evidenced by a First Lien Senior Incremental Notes Agreement substantially in the form of this Agreement, and pursuant to which such Senior Incremental Notes are to be issued, are each substantially in the form of Exhibit A-1 to the First Lien Purchase Agreement;
WHEREAS, Company desires to exercise its right under Section 1.1 of the First Lien Purchase Agreement and the Commitment Letter, to issue on the date hereof (the “Purchase Date”) $18,000,000 aggregate Stated Value of Notes represented by the Senior Incremental Notes issued on the date hereof;
WHEREAS, each Purchaser has agreed to purchase the Senior Incremental Notes in such amount on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, pursuant to Section 1.1 of the First Lien Purchase Agreement, each Holder and each Note Party have previously consented to the modifications to the First Lien
Purchase Agreement necessary to reflect the issuance of Senior Incremental Notes and shall be bound by this Agreement.
NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:
1. Issuance of Senior Incremental Notes. On the date hereof, Company will issue to the Purchasers the Senior Incremental Notes at the purchase price set forth on Supplemental Schedule 1.2A attached hereto, which shall supplement the existing Schedule 1.2A to the First Lien Purchase Agreement. Company will promptly pay or cause to be paid the Principal Amount of, premium, if any, and interest on the Senior Incremental Notes on the dates and in the manner provided in the Senior Incremental Notes, and in accordance with the terms of, the First Lien Purchase Agreement. For the avoidance of doubt, the Note Parties’ obligations under the First Lien Purchase Agreement, and the other Note Documents incurred, created or arising prior to the date hereof (including, without limitation, Company’s obligations under the Notes issued prior to the date hereof, Parent’s and Guarantors’ guaranty obligations with respect thereto and the First Priority Liens with respect thereto) shall continue in full force and effect, shall continue to be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Agreement.
2. Sale and Purchase of the Senior Incremental Notes.
(a) In reliance upon the Purchasers’ several representations made in Section 1.3 of the First Lien Purchase Agreement that are hereby being made in this Agreement with respect to the Senior Incremental Notes as of the Purchase Date and subject to the terms and conditions set forth in this Agreement and the other Note Documents, Company hereby agrees to sell to the Purchasers the Senior Incremental Notes. In reliance upon the representations and warranties of Company contained in this Agreement and the other Note Documents, and subject to the terms and conditions set forth herein and therein, the Purchasers hereby agree, severally and not jointly, to purchase the Senior Incremental Notes from Company as described in Section 2(b) hereinafter.
(b) The sale and purchase of the Senior Incremental Notes (the “Note Purchase”) will take place on the Purchase Date at the offices of O’Melveny & Myers LLP at Seven Times Square, New York, NY 10036. On the Purchase Date, Company will, subject to the terms and conditions set forth in this Agreement, deliver to each Purchaser the Stated Value of the Senior Incremental Notes set forth with respect to such Purchaser on Supplemental Schedule 1.2A against payment of the purchase price therefor as set forth under the heading “Total Issue Price” on Supplemental Schedule 1.2A by intra-bank or federal funds wire transfer of same day funds to Company.
3. First Lien Purchase Agreement Governs. Except as set forth in this Agreement, the Senior Incremental Notes are issued pursuant to the First Lien Purchase Agreement and shall otherwise be subject to the provisions of the First Lien Purchase Agreement and the other Note Documents (including, without limitation, that each Senior Incremental Note (i) shall constitute a “Note” and a “Senior Incremental Note” under the First Lien Purchase Agreement, (ii) will at all times be secured pursuant to the Collateral Documents and guarantied
by Parent and the Guarantors in accordance with the terms of the First Lien Purchase Agreement, (iii) shall have interest payable at a rate and on terms set forth in such Senior Incremental Note and the First Lien Purchase Agreement, (iv) shall have the same maturity date as the other Notes under the First Lien Purchase Agreement, and (v) shall be subject to optional redemption, mandatory redemption and an obligation to make a repurchase offer upon the occurrence of a Change of Control, in each case as further set forth in the First Lien Purchase Agreement and such Senior Incremental Note). This Agreement shall supplement and modify the First Lien Purchase Agreement as provided herein and shall constitute a “Note Document” under the First Lien Purchase Agreement. Accordingly, it shall have been and shall be an Event of Default under the First Lien Purchase Agreement if any representation or warranty made by Company, Parent or any Guarantor under or in connection with this Agreement or the First Lien Purchase Agreement or any other Note Documents shall have been false, incorrect, breached or misleading in any material respect when made or furnished.
4. Conditions to Purchase. The Purchasers’ respective obligations to purchase the Senior Incremental Notes pursuant to this Agreement shall become effective only upon the satisfaction of all of the following conditions precedent:
(a) On or before the Purchase Date, Company, Parent and Guarantors shall deliver to the Purchasers the following, each, unless otherwise noted, dated the Purchase Date:
i. copies of all amendments to the Organizational Documents of such Person executed on or after July 17, 2006, in each case, certified by the Secretary of State of its jurisdiction of organization or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of such Person, together with a good standing certificate from the Secretary of State of its jurisdiction of organization and, to the extent generally available, a certificate or other evidence of good standing as to payment of any applicable franchise or similar taxes from the appropriate taxing authority of such jurisdiction, each dated a recent date prior to the Purchase Date;
ii. resolutions of its board of directors, manager or sole member, as the case may be, approving and authorizing the execution, delivery, and performance of this Agreement and approving and authorizing the execution, delivery and payment of the Senior Incremental Notes, certified as of the Purchase Date by its corporate secretary or an assistant secretary as being in full force and effect without modification or amendment;
iii. signature and incumbency certificates of its officers executing this Agreement, and the Senior Incremental Notes; and
iv. original executed copies of this Agreement and the Senior Incremental Notes.
(b) The Purchasers and the Collateral Agent shall have received a favorable written opinion of Weil, Gotshal & Manges LLP, counsel for Company, Parent and Guarantors, in the form attached as Exhibit A hereto, dated as of the Purchase Date, with respect to the
enforceability of the Senior Incremental Notes and the other Notes, this Agreement, the other Note Documents and as to such other matters as the Purchasers and the Collateral Agent may reasonably request.
(c) On or before the Purchase Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by any Purchaser or its counsel shall be satisfactory in form and substance to such Purchaser and such counsel, and such Purchaser and such counsel shall have received all such counterpart originals or certified copies of such documents as such Purchaser may reasonably request.
(d) After giving effect to the transactions contemplated by this Agreement, (i) no Default or Event of Default (each as defined under the Note Documents) shall have occurred and be continuing under the Note Documents or result from this Agreement becoming effective in accordance with its terms, (ii) no Default or Event of Default (each as defined under the Second Lien Documents) shall have occurred and be continuing under the Second Lien Documents or result from this Agreement becoming effective in accordance with its terms, and (iii) no Default or Event of Default (each as defined under the Exchange Note Documents) shall have occurred and be continuing under the Exchange Note Documents or result from this Agreement becoming effective in accordance with its terms, and Company shall have delivered an officer’s certificate to such effect.
(e) Company shall use the net proceeds from the sale of the Senior Incremental Notes solely to fund the operations of Company in the ordinary course of business and not for any other purpose including the acquisition of any business or assets (it being understood that Company may make Permitted Investments pursuant to clause (viii) of the definition of “Permitted Investments”) or for the repayment of any Indebtedness. For the avoidance of doubt, Section 4.9 of the First Lien Purchase Agreement shall not apply to the issuance of the Senior Incremental Notes pursuant to this Agreement.
(f) Without limiting any obligation of Company to reimburse the expenses pursuant to the terms of the Note Documents, Company hereby agrees that on or before the Purchase Date, Company shall reimburse each Purchaser for any and all out-of-pocket expenses (including reasonable attorneys’ fees) incurred by such Purchaser in connection with this Agreement and the matters related hereto.
5. Representations and Warranties. In order to induce the Purchasers to enter into this Agreement, each of Company and Parent represents and warrants to each Purchaser that the following statements are true, correct and complete:
(a) Organization, Corporate Power and Authority. Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. Parent is a corporation dully incorporated, validly existing and in good standing under the laws of the State of Delaware. Each Guarantor that is a corporation is duly incorporated, validly existing and in good standing under the laws of its state of incorporation. Each Guarantor that is a partnership or limited liability company is duly organized and a validly existing partnership or limited liability company, as the case may be, under the laws of its
jurisdiction of formation and is in good standing in such jurisdiction. Company has all requisite limited liability company power and authority to own and operate its properties and to carry on its business as now conducted and as proposed to be conducted, to enter into this Agreement and to issue and deliver the Senior Incremental Notes, Parent has all requisite corporate power and authority to enter into this Agreement and the Parent Guaranty in respect of the Senior Incremental Notes, and each of Company and Parent has requisite limited liability company or corporate power and authority to carry out the transactions contemplated by, and perform its obligations under, this Agreement, the First Lien Purchase Agreement as supplemented and modified by this Agreement (together with the First Lien Incremental Disclosure Schedules attached hereto as Exhibit B, the “Modified Agreement”) and the Senior Incremental Notes.
(b) Authorization of Agreements. The execution and delivery of this Agreement, and the performance of this Agreement and the Modified Agreement and the issuance, delivery and payment of the Senior Incremental Notes have been duly authorized by all necessary corporate action on the part of Company, Parent and any Guarantors, as the case may be.
(c) No Conflict. The execution and delivery by Company and Parent of this Agreement, the Senior Incremental Notes, and the performance of this Agreement and the Modified Agreement and the issuance, delivery and payment of the Senior Incremental Notes do not and will not (i) violate any provision of any law or any governmental rule or regulation applicable to Company, Parent or any Guarantor, or violate any Organizational Documents of Company, Parent or any 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 (except pursuant to the Note Documents), (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 hereof, or (v) give rise (except pursuant to the Note Documents) to any preemptive rights, rights of first refusal or other similar rights on behalf of any Person under any Applicable Law or any provision of the Organizational Documents of any Note Party or any Material Contract to which any Note Party is a party or by which any Note Party is bound.
(d) Governmental Consents. The execution and delivery by Company and Parent of this Agreement, the Senior Incremental Notes, and the performance by Company and Parent of this Agreement and the Modified Agreement and the issuance, delivery and payment of the Senior Incremental Notes do not and will not require any Governmental Authorization by any Governmental Authority (including the FCC) except to the extent obtained on or before the date hereof.
(e) Binding Obligation. This Agreement has been duly executed and delivered by Company, Parent and the Guarantors and this Agreement and the Modified Agreement are the legally valid and binding obligations of such Person, enforceable against such Person 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, whether considered at law or
equity. The Senior Incremental Notes have been duly authorized by Company and when executed and authenticated, will be entitled to the benefits of this Agreement and the Modified Agreement and will constitute the legally valid and binding obligations of Company, enforceable against Company in accordance with its 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, whether considered at law or equity.
(f) Incorporation of Representations and Warranties From First Lien Purchase Agreement. The representations and warranties contained in Article IV of the Modified Agreement, as further modified by Schedule 5(f) attached hereto, are and will be true, correct and complete in all material respects on and as of the Purchase Date to the same extent as though made on and as of that date.
(g) Financial Condition.
i. The audited consolidated balance sheet of the Company and its Subsidiaries dated January 2, 2010, and the related audited consolidated statements of income or operations, shareholders’ equity and cash flows for the Fiscal Year ended on that date have been delivered to the Purchasers. The audited consolidated balance sheet of the Company and its Subsidiaries dated January 2, 2010, and the related audited consolidated statements of income or operations, shareholders’ equity and cash flows for the Fiscal Year ended on that date, were prepared in accordance with GAAP consistently applied throughout the respective periods covered thereby, fairly present, in all material respects, the financial condition of such Persons as at the dates indicated and the results of their operations and their cash flows for the periods indicated, except as otherwise indicated therein.
ii. The unaudited consolidated balance sheets of the Company and its Subsidiaries as at the end of each Fiscal Quarter ended more than 45 days prior to the Purchase Date, consisting of a consolidated balance sheet and the related consolidated statements of income and cash flows for the periods indicated were prepared in accordance with GAAP consistently applied throughout the respective periods covered thereby, and certified by the chief financial officer of the Company that they fairly present, in all material respects, the financial condition of the Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments, except for the absence of footnotes and as otherwise expressly noted therein.
(h) No Material Adverse Change; Absence of Undisclosed Liabilities. Since January 2, 2010, no event or change has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. Except as set forth in the financial statements referred to in Section 5(g) hereinabove, since January 2, 2010, neither the Company nor any of its Subsidiaries has incurred any obligations or liabilities that would be required to be reflected on a balance sheet or the notes prepared thereto in accordance with
GAAP consistently applied, other than obligations or liabilities incurred in the ordinary course of business.
(i) Independent Auditors. Ernst & Young LLP, who have certified the consolidated financial statements of the Company as of January 2, 2010, are independent public accountants within the meaning of the Securities Act.
(j) Absence of Default. Immediately prior to, or after giving effect to this Agreement, no Default or Event of Default has occurred and is continuing or would result from this Agreement becoming effective in accordance with its terms.
(k) Secured Working Capital Line. No Secured Working Capital Line exists.
(l) Performance of Agreements. Company, Parent and each Guarantor has performed in all material respects all agreements and satisfied all conditions which the First Lien Purchase Agreement provides shall be performed or satisfied by it on or before the date hereof.
(m) Investment Company Act. Neither Company nor any of its Subsidiaries is or, immediately after receipt of payment for the Senior Incremental Notes and the consummation of the transactions contemplated under this Agreement and the Senior Incremental Notes, will be an “investment company” registered or required to be registered under the Investment Company Act of 1940, as amended.
6. Acknowledgment and Consent. Parent and each guarantor (or grantor) listed on the signatures pages hereof (each, a “Guarantor” and collectively, the “Guarantors”) hereby (a) acknowledges and agrees that any of the Parent Guaranty, 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 Agreement and (b) acknowledges that it has read this Agreement and consents to the terms hereof, and hereby confirms and agrees that, from and after the Purchase Date, “Secured Obligations” and “Guarantied Obligations,” as applicable, under each Credit Support Document to which it is a party or otherwise bound shall include Company’s and Parent’s obligations, as applicable, under the Senior Incremental Notes and this Agreement. Each Guarantor represents and warrants that all representations and warranties contained in the Modified Agreement and the Credit Support Documents to which it is a party or otherwise bound, as modified by Schedule 5(f) attached hereto, are true, correct and complete in all material respects on and as of the Purchase Date to the same extent as though made on and as of that date, and each of the Schedules referred to therein and attached to this Agreement, as modified or supplemented to reflect changes thereto from and after July 17, 2006, is and will be true, correct and complete in all material respects on and as of the Purchase Date. For the avoidance of doubt, for the purposes of this Section 6, (i) the introductory language to Article IV of the First Lien Purchase Agreement shall be disregarded, (ii) each reference in Article IV of the First Lien Purchase Agreement to the “Closing Date” and the “Closing” shall be replaced with the reference to the “Purchase Date”, and (iii) the references to the “Conversion” and “Conversion Date” shall remain unchanged except as modified by Schedule 5(f) attached hereto.
7. Miscellaneous.
(a) Reference to and Effect on the First Lien Purchase Agreement and the Other Note Documents.
i. Except as otherwise expressly provided herein, each of Company, Parent and the Guarantors hereby agree that (i) the First Lien Purchase Agreement and the other Note Documents are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects, except that on and after the Purchase Date (A) all references in the First Lien Purchase Agreement to “this Agreement,” “hereto,” “hereof,” “hereunder” or words of like import referring to the First Lien Purchase Agreement shall mean the First Lien Purchase Agreement as modified by this Agreement and (B) all references in the other Note Documents to the “First Lien Purchase Agreement,” “thereto,” “thereof,” “thereunder” or words of like import referring to the First Lien Purchase Agreement shall mean the First Lien Purchase Agreement as modified by this Agreement, (ii) to the extent that the First Lien Purchase Agreement or any other Note Document purports to pledge to Collateral Agent, or to grant to Collateral Agent a security interest in or lien on, any collateral as security for the obligations under the First Lien Purchase Agreement, such pledge or grant of a security interest or lien is hereby ratified and confirmed in all respects, and (iii) the execution, delivery and effectiveness of this Agreement shall not operate as an amendment or modification of any right, power or remedy of Collateral Agent or the Holders under the First Lien Purchase Agreement or any other Note Document, nor constitute an amendment or modification of any provision of the First Lien Purchase Agreement or any other Note Document.
ii. The execution, delivery and performance of this Agreement 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 Purchaser or any other Holder under, the First Lien Purchase Agreement or any of the other Note Documents.
(b) Fees and Expenses. Each of Company and Parent acknowledges that all costs, fees and expenses as described in Section 1.4 of the First Lien Purchase Agreement incurred by each Purchaser and its counsel with respect to this Agreement and the documents and transactions contemplated hereby shall be for the account of Company and Parent.
(c) Headings. Section and subsection headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect.
(d) Applicable Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
(e) Counterparts; Effectiveness. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. This Agreement (other than the provisions of Sections 1, 2 and 3 hereof, the effectiveness of which is governed by Section 4 hereof) shall become effective upon the execution of a counterpart hereof by Company, Parent, each Purchaser and each of the Guarantors and receipt by Company and the Purchasers of written or telephonic notification of such execution and authorization of delivery thereof. Delivery of an executed counterpart of this Agreement by telefacsimile or electronic mail shall be equally as effective as delivery of an original executed counterpart of this Agreement.
8. Consent to Jurisdiction and Service of Process.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY OR ANY GUARANTOR ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, OR ANY OBLIGATIONS THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, COMPANY AND EACH OF THE GUARANTORS, EACH FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO COMPANY OR ANY GUARANTOR, AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1 OF THE FIRST LIEN PURCHASE AGREEMENT;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY AND THE GUARANTORS IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT EACH PURCHASER RETAINS THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY OR ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION 8 RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
9. Waiver of Jury Trial.
COMPANY, THE GUARANTORS, PARENT AND THE PURCHASERS HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this transaction, including contract claims, tort claims, breach of duty claims and all other common law and statutory claims. Company, the Guarantors, Parent and the Purchasers each acknowledge that this waiver is a material inducement for Company, the Guarantors, Parent and the Purchasers to enter into a business relationship, that each has already relied on the waiver in entering into this Agreement, and that each will continue to rely on the waiver in their related future dealings. Company, the Guarantors, Parent and the Purchasers further warrant and represent that each has reviewed this waiver with its legal counsel, and that each knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 9 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.
10. Recordation of the Senior Incremental Notes. Upon execution and delivery hereof, Company will record each Senior Incremental Note in the Register, and each such Senior Incremental Note shall be a “Note” and “Senior Incremental Note” as such terms are used in the First Lien Purchase Agreement and the Amendment and Waiver, respectively.
11. Amendment, Modification and Waiver. This Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto.
12. Entire Agreement. This Agreement, the First Lien Purchase Agreement and the other Note Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.
13. Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.
14. Direction to Collateral Agent. The Purchasers, constituting the Required Holders under the First Lien Purchase Agreement, hereby instruct the Collateral Agent to acknowledge that (i) it has read this Agreement, (ii) this Agreement constitutes a “Note Document” under the First Lien Purchase Agreement and (iii) the Collateral Agent will continue to act on behalf of all Holders (including the Purchasers under this Agreement) under the Collateral Agency Agreement and the other Note Documents in accordance with the terms thereof.
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IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Agreement as of the date first written above.
| | PURCHASER: | |
| | | |
| | AVENUE INVESTMENTS, L.P. | |
| | By: | Avenue Partners, LLC, its General Partner | |
| | | | |
| | By: | /s/ Sonia Gardner | |
| | | Name: | Sonia Gardner | |
| | | Title: | President and Managing Partner | |
| | | | |
| | AVENUE INTERNATIONAL MASTER, L.P. | |
| | | | | |
| | | | | |
| | By: | /s/ Sonia Gardner | |
| | | Name: | Sonia Gardner | |
| | | Title: | President and Managing Partner | |
| | | | |
| | | | |
| | AVENUE - CDP GLOBAL OPPORTUNITIES FUND, 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 | |
| | PURCHASER: | |
| | | |
| | SOLUS CORE OPPORTUNITIES MASTER FUND LTD | |
| | | | |
| | By: | /s/ Chris Pucillo | |
| | | Name: | Chris Pucillo | |
| | | Title: | Director | |
| | COMPANY: | |
| | | |
| | NEXTWAVE WIRELESS LLC | |
| | | | |
| | By: | /s/ Francis J. Harding | |
| | | Name: | Francis J. Harding | |
| | | Title: | Treasurer | |
| | PARENT and GUARANTOR: | |
| | | |
| | NEXTWAVE WIRELESS INC. | |
| | | | |
| | By: | /s/ Francis J. Harding | |
| | | Name: | Francis J. Harding | |
| | | Title: | Chief Financial Officer | |
| | GUARANTORS: | |
| | | |
| | NEXTWAVE BROADBAND INC. | |
| | | | |
| | By: | /s/ Francis J. Harding | |
| | | Name: | Francis J. Harding | |
| | | Title: | Treasurer | |
| | NW SPECTRUM CO. | |
| | | | |
| | By: | /s/ Francis J. Harding | |
| | | Name: | Francis J. Harding | |
| | | Title: | Treasurer | |
| | AWS WIRELESS INC. | |
| | | | |
| | By: | /s/ Francis J. Harding | |
| | | Name: | Francis J. Harding | |
| | | Title: | Treasurer | |
| | WCS WIRELESS LICENSE SUBSIDIARY, LLC | |
| | | | |
| | By: | /s/ Francis J. Harding | |
| | | Name: | Francis J. Harding | |
| | | Title: | Treasurer | |
| Acknowledged by (pursuant to Section 14 above): | |
| | |
| THE BANK OF NEW YORK MELLON, as Collateral Agent | |
| | | |
| By: | /s/ Eddie Wang | |
| | Name: | Eddie Wang | |
| | Title: | Vice President | |
Supplemental Schedule 1.2A
Purchasers and Issue Price
Notes issued on May 27, 2010 (evidencing Senior Incremental Notes)
| Purchasers | Total Issue Price/Principal Amount of Notes Purchased |
| Avenue Investments, L.P. | $ | 1,873,363 | |
| Avenue International Master, L.P. | $ | 3,484,736 | |
| Avenue - CDP Global Opportunities Fund, L.P. | $ | 755,478 | |
| Avenue Special Situations Fund V, L.P. | $ | 8,286,423 | |
| Solus Core Opportunities Master Fund Ltd | $ | 3,600,000 | |
| Total | $ | 18,000,000 | |
First Lien Senior Incremental Notes Agreement
SCHEDULE 5(f)
Modifications to Representations and Warranties
Solely for the purposes of Section 5(f) of this Agreement:
1. The introductory language to Article IV of the Modified Agreement shall be deemed to read as follows “The Company, Parent and the Guarantors hereby, jointly and severally, represent and warrant on and as of the Purchase Date, after giving effect to the Note Purchase, that:”.
2. Each reference in Article IV of the Modified Agreement to the “Closing Date” and the “Closing” shall be replaced with a reference to the “Purchase Date”.
3. The Company and the Guarantors shall not be deemed to make the representations and warranties contained in Sections 4.1, 4.4, 4.5, 4.6, 4.7, 4.9, 4.10, 4.11, and 4.25 of the Modified Agreement.
4. The second and third sentences set forth in Section 4.3 of the Modified Agreement shall be amended and restated to read in their entirety as follows: “All of the issued and outstanding Capital Stock of the Company and the Parent have been duly authorized and validly issued, fully paid and nonassessable, and all of such Capital Stock of the Company are owned by the Parent.”
5. The second sentence of the first paragraph of Section 4.13(a) of the Modified Agreement shall be deemed to read as follows: “Except as set forth on Schedule 4.13, neither the Company nor any of its Subsidiaries has any Foreign Spectrum Holdings as of the Purchase Date.”
6. The phrase “other than the filing of any UCC financing statements delivered to the Collateral Agent for filing (but not yet filed), the periodic filing of UCC continuation statements in respect of UCC financing statements (including any fixture filings) filed by or on behalf of the Holders of the Notes” set forth in Section 4.31 of the Modified Agreement is amended and restated to read in its entirety as follows: “other than the periodic filing of UCC continuation statements in respect of UCC financing statements (including any fixture filings) filed by or on behalf of the Holders of the Notes”.
7. Section 4.32 of the Modified Agreement is amended and restated to read in its entirety as follows: “Except as set forth on Schedule 4.32, the Company or the Parent or one of its Subsidiaries has the unrestricted right to vote, and (subject to limitations imposed by applicable law) to receive dividends and distributions on, all capital securities of its Subsidiaries as are owned by the Company, Parent or such Subsidiary.”
1
First Lien Senior Incremental Notes Agreement
8. Section 4.33 of the Modified Agreement is amended and restated to read in its entirety as follows: “Except as set forth in Section 8.2 of the Modified Agreement with respect to the priority of payment among the Notes, no Indebtedness of the Company or any of its Subsidiaries is senior to the Notes in right of payment, whether with respect of payment of redemptions, interest, damages or upon liquidation or dissolution or otherwise.”
2
First Lien Senior Incremental Notes Agreement
EXHIBIT A
OPINION OF COUNSEL TO NOTE PARTIES
See attached.
May 27, 2010
The Bank of New York Mellon,
as Collateral Agent,
under the Indebtedness Agreement referred to below and for
itself and for each of the Purchasers referred to therein
Ladies and Gentlemen:
We have acted as counsel to NextWave Wireless Inc., a Delaware corporation (the “Parent”), NextWave Wireless LLC, a Delaware limited liability company (the “Company”), NextWave Broadband Inc., a Delaware corporation (“Broadband”), NW Spectrum Co., a Delaware corporation (“NW Spectrum”), AWS Wireless Inc., a Delaware corporation (“AWS Wireless”), WCS Wireless License Subsidiary, LLC, a Delaware limited liability company (“WCS Wireless”, and together with Broadband, NW Spectrum, and AWS Wireless, each a “Guarantor” and collectively the “Guarantors”, and the Guarantors together with the Parent and the Company, each an “Opinion Party” and collectively the “Opinion Parties”) in connection with the preparation, authorization, execution and delivery of, and the consummation of the transactions contemplated by the First Lien Senior Incremental Notes Agreement relating to $18,000,000 initial principal amount of senior secured First Lien Notes due 2011 of the Company dated as of May 27, 2010 (the “Indebtedness Agreement”) among the Company, the Parent, each Guarantor, and the purchasers named therein (the “Purchasers”), with The Bank of New York Mellon acting as collateral agent for the Purchasers (in such capacity, the “Collateral Agent”). Capitalized terms defined or otherwise referenced in the Indebtedness Agreement and used (but not otherwise defined) herein are used herein as so defined or referenced.
In so acting, we have examined originals or copies (certified or otherwise identified to our satisfaction) of the following documents:
a. the Indebtedness Agreement;
b. the Senior Incremental Notes issued on the date hereof;
c. the Modified Agreement.
The documents specified in clauses (a) through (c) are collectively referred to as “New York Documents”.
In addition we have examined such corporate and limited liability company records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Opinion Parties, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all
questions of fact material to these opinions that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Opinion Parties and upon the representations and warranties of the Opinion Parties contained in the New York Documents. As used herein, “to our knowledge” and “of which we are aware” mean the conscious awareness of facts or other information by any lawyer in our firm on the date hereof who has, within one year prior to the date hereof, devoted substantial time to matters involving the Opinion Parties or the transactions contemplated by the New York Documents.
Based on the foregoing, and subject to the qualifications stated herein, we are of the opinion that:
Each of the Opinion Parties is a corporation or limited liability company, as applicable, validly existing and in good standing under the laws of the State of Delaware.
Each of the Opinion Parties has all requisite corporate or limited liability company power and authority, as applicable, to own, lease and operate its properties and to carry on its business as now being conducted.
Each of the Opinion Parties has all requisite corporate or limited liability company power and authority, as applicable, to execute and deliver the New York Documents to which it is a party and to perform its obligations thereunder. The execution, delivery and performance of the New York Documents by each of the Opinion Parties party thereto has been duly authorized by all necessary corporate or limited liability company action, as applicable, on the part of such Opinion Party.
Each of the New York Documents has been duly and validly executed and delivered by each of the Opinion Parties party thereto. Assuming the due authorization, execution and delivery of the New York Documents by the other parties thereto, each of the New York Documents constitutes the legal, valid and binding obligation of the Opinion Parties party thereto, enforceable against each of them in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that (A) rights to indemnification and contribution thereunder may be limited by federal or state securities laws or public policy relating thereto, (B) no opinion is expressed with respect to set-offs by participants, and (C) no opinion is expressed with respect to any provision of the New York Documents providing for liquidated damages.
The execution and delivery by each of the Opinion Parties of the New York Documents to which it is a party and the performance by each of the Opinion Parties of its obligations thereunder will not conflict with, constitute a default under or violate (i) any of the terms, conditions or provisions of the Certificate of Incorporation or Certificate of Formation, as applicable, or by-laws or operating agreement, as applicable (including all amendments thereto to the date hereof) of such Opinion Party, (ii) any of the terms, conditions or provisions of any agreement listed on Schedule I hereto, (iii) Delaware corporate or limited liability company, New York state or federal law or regulation including Regulation T, U or X of the Board of Governors of the Federal Reserve System (other than the Communications Act, FCC Rules, and federal and
state securities or blue sky laws, as to which we express no opinion in this paragraph), or (iv) any judgment, writ, injunction, decree, order or ruling of any court or governmental authority binding on such Opinion Party of which we are aware.
No consent, approval, waiver, license or authorization or other action by or filing with any Delaware corporate or limited liability company, New York state or federal governmental authority is required in connection with the execution and delivery by the Opinion Parties of the New York Documents to which they are parties, the consummation by the Opinion Parties of the transactions contemplated thereby or the performance by the Opinion Parties of their obligations thereunder, except for filings in connection with perfecting security interests, the Communications Act, FCC Rules and the federal and state securities or blue sky laws, as to which we express no opinion in this paragraph, and those already obtained.
To our knowledge, there is no litigation, proceeding or governmental investigation pending or overtly threatened against the Opinion Parties that relates to any of the transactions contemplated by the Indebtedness Agreement.
On the date hereof, immediately after giving affect to the purchase of the Senior Incremental Notes, none of the Opinion Parties is an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
Assuming that the representations of the Purchasers contained in the Indebtedness Agreement and the Modified Agreement are true, correct and complete and assuming compliance by the Purchasers with their covenants set forth in the Indebtedness Agreement, it is not necessary in connection with the offer, sale and delivery of the Senior Incremental Notes to the Purchasers pursuant to the Indebtedness Agreement to (i) register the Senior Incremental Notes under the Securities Act of 1933, as amended, or (ii) qualify the Indebtedness Agreement or the Modified Agreement under the Trust Indenture Act of 1939, as amended.
The opinions expressed herein are limited to the laws of the State of New York, the corporate and limited liability company laws of the State of Delaware and the federal laws of the United States, other than the Communications Act and FCC Rules, and we express no opinion as to the effect on the matters covered by this letter of any other jurisdiction.
The opinions expressed herein are rendered solely for your benefit and for the benefit of your permitted assigns in connection with the transactions described herein. Those opinions may not be used or relied upon by any other person, nor may this letter or any copies hereof be furnished to a third party, filed with a governmental agency, quoted, cited or otherwise referred to without our prior written consent, other than to bank regulatory authorities or your permitted assigns.
Very truly yours,
Schedule I
List of Agreements
| 2. | Exchange Note Documents |
| 3. | The Second Lien Documents |
| 4. | Credit Line Agreement dated as of August 6, 2008, between NextWave Wireless Inc. and UBS Credit Corp. |
| 5. | Share Purchase Agreement among Michael Bornhausser, BB Private Equity N.V., Varuma AG, Rolf Brugger, Andreas Sarasin, Markus Hof, Renate Thoma and PacketVideo Corporation |
| 6. | Stock Purchase Agreement dated July 2, 2009 among PacketVideo Corporation, NextWave Wireless Inc., NextWave Broadband Inc. and NTT Docomo, Inc. |
| 7. | Stockholders’ Agreement, dated as of July 2, 2009 by and among PacketVideo Corporation, NextWave Wireless Inc., NextWave Broadband Inc. and NTT DOCOMO, Inc. |
| 8. | Amended and Restated Services Agreement dated October 30, 2006 among NextWave Broadband Inc and LCC International Inc. |
| 9. | Settlement and General Release Agreement dated September 21, 2009 among Nechemia J. Peres (GO Networks Stockholder Representative) and NextWave Wireless Inc. |
| 10. | Letter dated December 28, 2009 between NextWave Wireless Inc. and Moelis and Company LLC. |
| 11. | First Lien Commitment Letter |
EXHIBIT B
FIRST LIEN INCREMENTAL DISCLOSURE SCHEDULES
See attached.
DISCLOSURE SCHEDULES
TO FIRST LIEN SENIOR INCREMENTAL NOTES AGREEMENT
among
NEXTWAVE WIRELESS INC.,
NEXTWAVE WIRELESS LLC,
Each GUARANTOR NAMED THEREIN
and
THE PURCHASERS NAMED THEREIN
Relating to:
Senior Secured First Lien Notes due 2011
of
NextWave Wireless LLC
Dated as of May 27, 2010
INTRODUCTION
Attached to and forming a part of the First Lien Senior Incremental Notes Agreement, dated as of May 27, 2010 (the “Agreement”) among NextWave Wireless Inc., a corporation organized under the laws of the state of Delaware (the “Parent”), NextWave Wireless LLC, a limited liability company organized under the laws of the state of Delaware (the “Company”), each Guarantor party thereto (each, a “Guarantor” and collectively, the “Guarantors”), the Purchasers set forth in Supplemental Schedule 1.2A herein (each, a “Purchaser” and collectively, the “Purchasers”), and acknowledged by The Bank of New York Mellon, as Collateral Agent.
The representations and warranties of the Company, the Parent and the Guarantors in the Agreement are qualified by, and made subject to, the disclosures in these Schedules to the extent, and solely to the extent, expressly stated in the applicable provision(s) to which any Schedule relates. Notwithstanding the foregoing, inclusion of information in these Schedules shall not be construed as an admission that such information is material to the business, assets, liabilities, financial condition, results of operations or prospects of the Company, the Parent or the Guarantors, or otherwise material, or that such information is required to be included in these Schedules, and inclusion of information in connection with disclosure of matters that are not in the ordinary course of business shall not be construed as an admission that the included items or actions are not in the ordinary course of business.
Supplemental Schedule 1.2A
Purchasers and Issue Price
Senior Incremental Notes issued on May 27, 2010
| Purchasers | | Principal Amount of Notes Purchased | | | Total Issue Price | |
| Avenue Investments, L.P. | | $ | 1,873,363.00 | | | $ | 1,873,363.00 | |
| Avenue International Master, L.P. | | $ | 3,484,736.00 | | | $ | 3,484,736.00 | |
| Avenue - CDP Global Opportunities Fund, L.P. | | $ | 755,478.00 | | | $ | 755,478.00 | |
| Avenue Special Situations Fund V, L.P. | | $ | 8,286,423.00 | | | $ | 8,286,423.00 | |
| Solus Core Opportunities Master Fund | | $ | 3,600,000.00 | | | $ | 3,600,000.00 | |
| Total | | $ | 18,000,000.00 | | | $ | 18,000,000.00 | |
Schedule 4.3
Corporate and Capital Structure
Persons holding 5% or more of the Capital Stock of the Parent (on an as-converted basis)
Corporate Structure – Subsidiaries of the Company
| Entity Name | Owner(s) (100% unless otherwise stated) |
| NextWave Broadband Inc. | Company |
| NWGN, Inc. (formerly GO Networks, Inc.) | Company |
| NextWave Argentina S.A. | Company (98%) NW Spectrum Co (2%) |
| Hughes Systique Corporation | Company (5% common shareholders) |
| CYGNUS Communications, Inc. | Company |
| PacketVideo Corporation | NextWave Broadband Inc. |
| NW Spectrum Co. | NextWave Broadband Inc. |
| AWS Wireless Inc. | NextWave Broadband Inc. |
| NextWave Metropolitan, Inc. | NextWave Broadband Inc. |
| WiMax Telecom AG | NextWave Broadband Inc. |
| PacketVideo Japan Corp. | PacketVideo Corporation |
| PacketVideo France SARL | PacketVideo Corporation |
| PacketVideo India Private Limited | PacketVideo Corporation |
| PacketVideo Finland Oy | PacketVideo Corporation |
| PacketVideo N.Carolina Corp | PacketVideo Corporation |
| PacketVideo Germany GmbH | PacketVideo Corporation |
| PacketVideo Korea Branch | PacketVideo Corporation |
| PacketVideo Switzerland (SDC) | PacketVideo Corporation |
| WCS Wireless License Subsidiary, LLC | NW Spectrum Co. |
| 4253311 Canada, Inc. | 4399773 Canada, Inc. |
| Entity Name | Owner(s) (100% unless otherwise stated) |
| 4399773 Canada, Inc. | NW Spectrum Co. |
| Inquam Broadband GmbH | WiMax Telecom AG |
| Callix Consulting AG | WiMax Telecom AG |
| WiMax Telecom SRO | WiMax Telecom AG |
| Infotel Argentina S.A. | NextWave Argentina (99.98%) Company (0.02%) |
| Callbi S.A. | NextWave Argentina |
| Cygnus Multimedia Communications, Inc. | Cygnus Communications, Inc. |
| Cygnus Acquisition, Co. | Cygnus Multimedia Communications, Inc |
| Babian Software India Pvt India | Hughes Systique Corporation |
| Inquam Norway AS | NextWave Broadband Inc. |
| NextWave Spectrum UK Ltd | NextWave Wireless LLC |
| NextWave Inversiones Ltda | NextWave Spectrum UK Ltd |
| Southam Chile SA | NextWave Inversiones |
| NextWave Chile Ltda` | NextWave Spectrum UK Ltd |
| Sociedad Televisora CBC Ltd | NextWave Chile Ltda |
On September 28, 2008, the Company’s wholly-owned subsidiary, GO Networks, Inc., a Delaware corporation (the “Applicant”), submitted an application pursuant to Chapter 12 of the Israeli Companies Ordinance, 1983-5743 (the “Israeli Companies Ordinance”) with the Tel Aviv District Court (the "Court") requesting the appointment of a permanent liquidator for the purpose of effecting a court-supervised liquidation of GO Networks Ltd. (a corporation organized under the laws of the state of Israel) (“GO Networks Israel”). In addition, concurrently with such application, the Applicant also submitted to the Court an application pursuant to Chapter 12 of the Israeli Companies Ordinance to appoint a temporary liquidator during the interim period until a permanent liquidator is appointed. The application for appointment of a temporary liquidator was granted October 6, 2008 and on January 14, 2009 the court entered an order for the permanent liquidation of GO Networks Israel. As a result of the liquidation, the Company no longer controls GO Networks Israel and its subsidiaries and will not receive any proceeds from the assets of such GO Networks entities.
On October 14, 2008, the Company shut down the operations of its Cygnus Communications Canada Co. subsidiary (“Cygnus Canada”) and filed a voluntary petition for bankruptcy in the Court of Queen's Bench of Alberta. The bankruptcy trustee that was appointed for Cygnus Canada on October 14, 2008 is Hardie & Kelly. The operations of Cygnus Canada consisted of a research and development facility with 21 employees. Bankruptcy finalized on January 15, 2010. As a result of the bankruptcy, the Company no longer controls Cygnus Canada and its subsidiaries and will not receive any proceeds from the assets of such Cygnus entities. The final inspector meeting was held on January 15, 2010.
On October 30, 2009, the Board of Directors of WiMAX Telecom GmbH, the holding company for the Company’s discontinued WiMAX Telecom business in Austria and Croatia, filed an
insolvency proceeding in Austria in accordance with local law to permit the orderly wind-down of such entity. The court in Austria has entered an order appointing an administrator to manage the insolvency of WiMAX Telecom GmbH. As a result of the appointment of the administrator, the Company no longer controls WiMAX Telecom GmbH and its subsidiaries and will not receive any proceeds from the assets of such WiMAX entities.
Preemptive Rights
| 1. | Rights of the Second Lien Noteholders pursuant to Second Lien Warrant Agreements. |
| 2. | Rights of NTT DoCoMo, Inc. pursuant to the Stockholders’ Agreement, dated as of July 2, 2009 by and among PacketVideo Corporation, NextWave Wireless Inc., NextWave Broadband Inc. and NTT DOCOMO, Inc. |
Options
| 1. | During the year ended January 2, 2010, the Company had five share-based compensation plans that provide for awards to acquire shares of common stock. At January 2, 2010, the Company may issue up to an aggregate of 31.5 million shares of common stock under its equity compensation plans, of which 21.2 million shares are reserved for issuance upon exercise of granted and outstanding options and 10.3 million shares are available for future grants. |
Warrants
| 1. | Warrants to purchase an aggregate of 10,476,663 shares of common stock held by Solus Ltd. and its affiliates. |
Conversion Rights
| 1. | Parent has outstanding Third Lien Subordinated Secured Convertible Notes which are convertible into 44,821,994 shares of common stock as of March 28, 2009, at a conversion price of $11.05 per share. |
Stock Appreciation Rights
None.
Employee Stock Plans
1. Except as disclosed in Note 13 of the Notes to Consolidated Financial Statements in the Company’s Form 10-K filed on April 2, 2010, which are incorporated herein by reference, there are none.
Schedule 4.8
Material Contracts and Spectrum Leases
Material Contracts
| 13. | Exchange Note Documents |
| 14. | The Second Lien Documents |
| 15. | Credit Line Agreement dated as of August 6, 2008, between NextWave Wireless Inc. and UBS Credit Corp. |
| 16. | Share Purchase Agreement among Michael Bornhausser, BB Private Equity N.V., Varuma AG, Rolf Brugger, Andreas Sarasin, Markus Hof, Renate Thoma and PacketVideo Corporation |
| 17. | Stock Purchase Agreement dated July 2, 2009 among PacketVideo Corporation, NextWave Wireless Inc., NextWave Broadband Inc. and NTT Docomo, Inc. |
| 18. | Stockholders’ Agreement, dated as of July 2, 2009 by and among PacketVideo Corporation, NextWave Wireless Inc., NextWave Broadband Inc. and NTT DOCOMO, Inc. |
| 19. | Amended and Restated Services Agreement dated October 30, 2006 among NextWave Broadband Inc and LCC International Inc. |
| 20. | Settlement and General Release Agreement dated September 21, 2009 among Nechemia J. Peres (GO Networks Stockholder Representative) and NextWave Wireless Inc. |
| 21. | Letter dated December 28, 2009 between NextWave Wireless Inc. and Moelis and Company LLC. |
| 22. | Senior Secured Notes Commitment Letter, dated March 16, 2010, by and among Avenue Capital Management II, L.P. (on behalf of its managed investment funds set forth therein), Solus Core Opportunities Master Fund Ltd, NextWave Wireless LLC and NextWave Wireless Inc. |
Spectrum Leases
1. Domestic Spectrum Leases
| License Call Signs | Market | Licensee | Lease Name |
WLX648 | Mobile, AL | North American Catholic Educational Programming Foundation, Inc. Lessee is Clearwire Spectrum Holdings II LLC | Educational Broadband Service Long Term De Facto Transfer Individual Use Sublease Agreement (March 2, 2007) |
WAC273 | San Francisco, CA | Regents of the University of California | Long Term De Facto Transfer EBS Spectrum Lease Agreement (November 1, 2007) |
KHU89 KTB97 | San Francisco, CA | Regents of the University of California | Long Term De Facto Transfer EBS Spectrum Lease Agreement (November 1, 2007) |
WHG396 | Modjeska Peak, CA | The Orange Catholic Foundation | Lease Agreement (December 19, 2005); Assignment and Assumption Agreement (July 7, 2006) |
| KTZ30 | Peoria, IL | Bradley University | Long Term De Facto EBS Spectrum Lease Agreement (May 16, 2007); First Amendment to Lease Agreement (April, 2008) |
| WND596 | Sea Girt, NJ | The Sea Girt School District | Second Amended and Restate ITFS Lease Agreement (August 17, 2006) |
KRS81 KRS82 KRS83 KRS84 KRS85 KRS86 KRW67 | New York, NY Staten Island, NY Yonkers, NY Haverstraw, NY Beacon, NY Rhinecliff, NY Loomis, NY | Archdiocese of New York | Lease Agreement (December 2, 2004); Assignment and Assumption Agreement, July 7, 2006); First Amendment to Lease Agreement (March 1, 2006) |
| WHR828 | New York, NY | Educational Broadcasting Corporation | Long Term De Facto Transfer EBS Spectrum Lease Agreement (June 20, 2006) |
| License Call Signs | Market | Licensee | Lease Name |
| WAU29 | Philadelphia, PA | Temple University | Long Term De Facto EBS Spectrum Lease Agreement (July 31, 2006) |
WHR506 | Fort Worth, TX | Tarrant County College District | Long Term De Facto EBS Spectrum Lease Agreement (December 13, 2006) |
KNLB200 | 2310-2315 MHz & 2355-2360 MHz in Fall River, MA | NW Spectrum Co. | NW Spectrum Co. – Troy City Internet Exchange, Inc. d/b/a MegaBroadband WCS Spectrum Lease Agreement (December 1, 2004); Instrument of Assignment and Assumption (January 10, 2006); First Amendment to Spectrum Lease Agreement (June 6, 2008); Second Amendment to Spectrum Lease Agreement (June 13, 2008) |
| KNLB213 | Portions of Jacksonville, FL MEA09 (excluding Duval and St. John’s counties) | NW Spectrum Co. | NW Spectrum Co. - Broadband South LLC Spectrum Manager Lease Agreement (December 4, 2008); Amendment Number 1 to Spectrum Manager Lease Agreement (January 8, 2009); Amendment Number 2 to Spectrum Manager Lease Agreement (March 12, 2010) |
2. Foreign Spectrum leases
| Lease Name | NextWave entity party to lease | Lessee | Spectrum Bands | Market |
Letter of Intent between Inquam Broadband GmbH and WVE Net GmbH (July 3, 2007)* | Inquam Broadband GmbH | VSE NET GmbH | 10 MHz (of 3.5 GHz frequencies) | Wadrill, Germany |
| Letter of Intent between Inquam Broadband GmbH and NeckarCom Telekommunikation GmbH (March 12, 2007)* | Inquam Broadband GmbH | NeckarCom Telekommunikation GmbH | 14 MHz (of 3.5 GHz frequencies) | 12 locations in Germany: - Dellmensingen - Schnürpflingen - Staig Wasserturm - Staig VBHS - Hüttisheim Wasserturm - Hüttisheim Ziegelei - Dorndorf - Rißtissen - Gamerschwang - Lehenweiler - Heimerdingen - Scheer |
*Letters of Intent in process of being assigned to buyer of Inquam Broadband GmbH assets, Inquam Holding GmbH
Schedule 4.13
FCC Licenses
NEXTWAVE’S DOMESTIC AWS SPECTRUM LICENSES |
| Call Sign | City | State | License Type | Licensee Name |
| WQGD533 | Citrus | FL | AWS | AWS Wireless Inc. |
| WQGD532 | Hardee | FL | AWS | AWS Wireless Inc. |
| WQGD534 | Putnam | FL | AWS | AWS Wireless Inc. |
| WQGD594 | Savannah | GA-SC | AWS | AWS Wireless Inc. |
| WQGD601 | Asheville | NC | AWS | AWS Wireless Inc. |
| WQGD515 | Burlington | NC | AWS | Proposed assignee: Carolina AWS, LLC |
| WQGD559 | Cabarrus | NC | AWS | AWS Wireless Inc. |
| WQGD589 | Greenville | NC | AWS | Proposed assignee: Carolina AWS, LLC |
| WQGD558 | Hoke | NC | AWS | AWS Wireless Inc. |
| WQGD557 | Rockingham | NC | AWS | Proposed assignee: Carolina AWS, LLC |
| WQGD592 | Wilmington | NC-SC | AWS | Proposed assignee: Carolina AWS, LLC |
| WQGD603 | Hickory-Morganton | NC-TN | AWS | AWS Wireless Inc. |
| WQGD624 | Santa Fe | NM | AWS | AWS Wireless Inc. |
| WQGD623 | Amarillo | TX-NM | AWS | AWS Wireless Inc. |
NEXTWAVE’S DOMESTIC WCS SPECTRUM LICENSES1 |
| Call Sign | City | State | License Type | Licensee Name |
| KNLB219 | Phoenix | AZ | WCS | NW Spectrum Co. |
| KNLB220 | Los Angeles-San Diego | CA | WCS | NW Spectrum Co. |
| KNLB307 | Denver | CO | WCS | WCS Wireless License Subsidiary, LLC |
| KNLB213 | Jacksonville | FL | WCS | NW Spectrum Co. (FCC consented to assignment to Broadband South LLC of all counties except Duval and St. John’s on 6/1/2009) |
| KNLB308 | Hawaii | HI | WCS | WCS Wireless License Subsidiary, LLC |
| KNLB293 | Des Moines-Quad Cities | IA | WCS | NW Spectrum Co. |
| KNLB305 | Chicago | IL | WCS | WCS Wireless License Subsidiary, LLC |
__________________________________
1 FCC Rules governing WCS and adjacent spectrum in the Satellite Digital Audio Radio Service are subject to modification pursuant to an ongoing FCC rulemaking: Amendment of Part 27 of the Commission’s Rules to Govern the Operation of Wireless Communications Services in the 2.3 GHz Band (WT Docket No. 07-293); and Establishment of Rules and Policies for the Digital Audio Radio Satellite Service in the 2310-2360 MHz Frequency Band (IB Docket No. 95-91).
NEXTWAVE’S DOMESTIC WCS SPECTRUM LICENSES1 |
| Call Sign | City | State | License Type | Licensee Name |
| KNLB306 | Kansas City | KS-MO | WCS | WCS Wireless License Subsidiary, LLC |
| KNLB200 | Boston | MA | WCS | NW Spectrum Co. |
| KNLB304 | Detroit | MI | WCS | WCS Wireless License Subsidiary, LLC |
| KNLB218 | Minneapolis-St. Paul | MN | WCS | NW Spectrum Co. |
| KNLB292 | Minneapolis-St. Paul | MN | WCS | NW Spectrum Co. |
| KNLB207 | St. Louis | MO | WCS | WCS Wireless License Subsidiary, LLC |
| KNLB322 | St. Louis | MO | WCS | NW Spectrum Co. |
| KNLB294 | Omaha | NE | WCS | NW Spectrum Co. |
| KNLB208 | Buffalo | NY | WCS | WCS Wireless License Subsidiary, LLC |
| KNLB302 | Cleveland | OH | WCS | WCS Wireless License Subsidiary, LLC |
| KNLB303 | Cleveland | OH | WCS | WCS Wireless License Subsidiary, LLC |
| KNLB295 | Portland | OR | WCS | WCS Wireless License Subsidiary, LLC |
| KNLB323 | Houston | TX | WCS | NW Spectrum Co. |
| KNLB215 | San Antonio | TX | WCS | NW Spectrum Co. |
| KNLB255 | San Antonio | TX | WCS | NW Spectrum Co. |
| KNLB296 | Seattle | WA | WCS | WCS Wireless License Subsidiary, LLC |
| KNLB206 | Milwaukee | WI | WCS | NW Spectrum Co. |
| KNLB217 | Milwaukee | WI | WCS | NW Spectrum Co. |
| KNLB297 | Northeast | US | WCS | WCS Wireless License Subsidiary, LLC |
| KNLB298 | Central | US | WCS | WCS Wireless License Subsidiary, LLC |
| KNLB299 | Central | US | WCS | WCS Wireless License Subsidiary, LLC |
| KNLB300 | West | US | WCS | WCS Wireless License Subsidiary, LLC |
| KNLB301 | West | US | WCS | WCS Wireless License Subsidiary, LLC |
| NEXTWAVE’S DOMESTIC BRS SPECTRUM LICENSES |
| Call Sign | City | State | License Type | Licensee Name |
| WHT661 | Albuquerque | NM | BRS | Proposed assignee: ZTark Communications LLC |
| WHT662 | Albuquerque | NM | BRS | Proposed assignee: ZTark Communications LLC |
| WHT722 | Henderson | NV | BRS | NW Spectrum Co. |
| WQGH651 | Las Vegas | NV | BRS | NW Spectrum Co. |
| WHT724 | Las Vegas | NV | BRS | NW Spectrum Co. |
Pending FCC Applications
Granted But Not Yet Final FCC Applications With Respect To AWS Licenses:
| Call Sign | Licensee | Service | Pending Application |
| WQGD515 | AWS Wireless Inc. | AWS | File No. 0004071830: assignment of license from AWS Wireless Inc (“AWSW”) to Carolina AWS LLC (consented to 12/23/2009) |
| WQGD557 | AWS Wireless Inc. | AWS | File No. 0004071830: assignment of license from AWS Wireless Inc (“AWSW”) to Carolina AWS LLC (consented to 12/23/2009) |
| WQGD589 | AWS Wireless Inc. | AWS | File No. 0004021209: assignment of license from AWS Wireless Inc (“AWSW”) to Carolina AWS LLC (consented to 11/06/2009) |
| WQGD592 | AWS Wireless Inc. | AWS | File No. 0004021209: assignment of license from AWS Wireless Inc (“AWSW”) to Carolina AWS LLC (consented to 11/06/2009) |
Pending FCC Applications With Respect To WCS Licenses
| Call Sign | Licensee | Service | Pending Application |
| KNLB200 | NW Spectrum Co. | WCS | File No. 0003001466: license renewal |
| KNLB206 | NW Spectrum Co. | WCS | File No. 0003001467: license renewal |
| KNLB213 | NW Spectrum Co. | WCS | File No. 0003001468: license renewal |
| KNLB215 | NW Spectrum Co. | WCS | File No. 0003001469: license renewal |
| KNLB217 | NW Spectrum Co. | WCS | File No. 0003001470: license renewal |
| KNLB218 | NW Spectrum Co. | WCS | File No. 0003001471: license renewal |
| KNLB219 | NW Spectrum Co. | WCS | File No. 0003001472: license renewal |
| KNLB220 | NW Spectrum Co. | WCS | File No. 0003001473: license renewal |
| KNLB255 | NW Spectrum Co. | WCS | File No. 0003001474: license renewal |
| KNLB292 | NW Spectrum Co. | WCS | File No. 0003001475: license renewal |
| KNLB293 | NW Spectrum Co. | WCS | File No. 0003001476: license renewal |
| KNLB294 | NW Spectrum Co. | WCS | File No. 0003001477: license renewal |
| KNLB322 | NW Spectrum Co. | WCS | File No. 0003001478: license renewal |
| KNLB323 | NW Spectrum Co. | WCS | File No. 0003001479: license renewal |
| KNLB207 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001459: license renewal |
| KNLB208 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001460: license renewal |
| KNLB295 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001461: license renewal |
| KNLB296 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001462: license renewal |
| Call Sign | Licensee | Service | Pending Application |
| KNLB297 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001463: license renewal |
| KNLB298 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001448: license renewal |
| KNLB299 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001449: license renewal |
| KNLB300 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001450: license renewal |
| KNLB301 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001451: license renewal |
| KNLB302 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001452: license renewal |
| KNLB303 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001453: license renewal |
| KNLB304 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001454: license renewal |
| KNLB305 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001455: license renewal |
| KNLB306 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001456: license renewal |
| KNLB307 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001457: license renewal |
| KNLB308 | WCS Wireless License Subsidiary, LLC | WCS | File No. 0003001458: license renewal |
Granted But Not Yet Final FCC Applications With Respect To WCS Licenses:
| KNLB213 | NW Spectrum Co. | WCS | File No. 0003794840: assignment of license (excluding Duval and St. John’s counties) from NW Spectrum Co. to Broadband South LLC (consented to 6/1/2009) |
Granted But Not Yet Final FCC Applications With Respect To BRS Licenses:
| WHT661 | NW Spectrum Co. | BRS | File No. 0004115058: assignment of license from NW Spectrum Co. to ZTark Communications LLC (consented to 3/16/2010) |
| WHT662 | NW Spectrum Co. | BRS | File No. 0004115058: assignment of license from NW Spectrum Co. to ZTark Communications LLC (consented to 3/16/2010) |
NextWave Foreign Spectrum Holdings
NEXTWAVE CANADIAN WCS LICENSES |
License Number | City | Licensee Name |
| 4981418 | Placentia | 4253311 Canada Inc. |
| 4981419 | Gander/Grand Falls/Windsor | 4253311 Canada Inc. |
| 4981420 | Corner Brook/ Stephenville | 4253311 Canada Inc. |
| 4981421 | Labrador | 4253311 Canada Inc. |
| 4981422 | Mont-Joli | 4253311 Canada Inc. |
| 4981423 | Riviere-du-Loup | 4253311 Canada Inc. |
| 4981424 | La Malbaie | 4253311 Canada Inc. |
| 4981425 | Chicoutimi/ Jonquiere | 4253311 Canada Inc. |
| 4981426 | Montmagny | 4253311 Canada Inc. |
| 4981427 | Quebec | 4253311 Canada Inc. |
| 4981428 | Sainte-Marie | 4253311 Canada Inc. |
| 4981429 | Saint-Georges | 4253311 Canada Inc. |
| 4981430 | Lac Megantic | 4253311 Canada Inc. |
| 4981431 | Thetford Mines | 4253311 Canada Inc. |
| 4981432 | Plessisville | 4253311 Canada Inc. |
| 4981433 | La Tuque | 4253311 Canada Inc. |
| 4981434 | Louiseville | 4253311 Canada Inc. |
| 4981435 | Victoriaville | 4253311 Canada Inc. |
| 4981436 | Coaticook | 4253311 Canada Inc. |
| 4981437 | Windsor | 4253311 Canada Inc. |
| 4981438 | Farnham | 4253311 Canada Inc. |
| 4981439 | Joliette | 4253311 Canada Inc. |
| 4981440 | Sainte-Agathe-des-Monts | 4253311 Canada Inc. |
| 4981441 | Hawkesbury | 4253311 Canada Inc. |
| 4981442 | Pembroke | 4253311 Canada Inc. |
| 4981443 | Arnprior/ Renfrew | 4253311 Canada Inc. |
| 4981444 | Rouyn-Noranda | 4253311 Canada Inc. |
| 4981445 | Notre-Dame-du-Nord | 4253311 Canada Inc. |
| 4981446 | La Sarre | 4253311 Canada Inc. |
| 4981447 | Roberval/Saint-Felicien | 4253311 Canada Inc. |
| 4981448 | Cornwall | 4253311 Canada Inc. |
| 4981449 | Napanee | 4253311 Canada Inc. |
| 4981450 | Alliston | 4253311 Canada Inc. |
| 4981451 | Fort Erie | 4253311 Canada Inc. |
| 4981452 | Windsor/ Leamington | 4253311 Canada Inc. |
| 4981453 | Sudbury | 4253311 Canada Inc. |
| 4981454 | Kirkland Lake | 4253311 Canada Inc. |
| 4981455 | Timmins | 4253311 Canada Inc. |
| 4981456 | Kapuskasing | 4253311 Canada Inc. |
| 4981457 | Kenora/Sioux Lookout | 4253311 Canada Inc. |
| 4981458 | Iron Bridge | 4253311 Canada Inc. |
| 4981459 | Saulte Ste. Marie | 4253311 Canada Inc. |
NEXTWAVE CANADIAN WCS LICENSES |
| 4981460 | Thunder Bay | 4253311 Canada Inc. |
| 4981461 | Steinbach | 4253311 Canada Inc. |
| 4981462 | Winnipeg | 4253311 Canada Inc. |
| 4981463 | Morden/Winkler | 4253311 Canada Inc. |
| 4981464 | Brandon | 4253311 Canada Inc. |
| 4981465 | Portage La Prairie | 4253311 Canada Inc. |
| 4981466 | Dauphin | 4253311 Canada Inc. |
| 4981467 | Creighton/Flin Flon | 4253311 Canada Inc. |
| 4981468 | Thompson | 4253311 Canada Inc. |
| 4981469 | Moose Jaw | 4253311 Canada Inc. |
| 4981470 | Swift Current | 4253311 Canada Inc. |
| 4981471 | Battleford | 4253311 Canada Inc. |
| 4981472 | Northern Saskatchewan | 4253311 Canada Inc. |
| 4981473 | Wetaskiwin/ Ponoka | 4253311 Canada Inc. |
| 4981474 | Barrhead | 4253311 Canada Inc. |
| 4981475 | West Kootenay | 4253311 Canada Inc. |
| 4981476 | Powell River | 4253311 Canada Inc. |
| 4981477 | Merritt | 4253311 Canada Inc. |
| 4981478 | Kamloops | 4253311 Canada Inc. |
| 4981479 | Ashcroft | 4253311 Canada Inc. |
| 4981480 | Williams Lake | 4253311 Canada Inc. |
| 4989477 | St. John's | 4253311 Canada Inc. |
| 4989478 | Charlottetown | 4253311 Canada Inc. |
| 4989479 | Summerside | 4253311 Canada Inc. |
| 4989480 | Truro | 4253311 Canada Inc. |
| 4989481 | Amherst | 4253311 Canada Inc. |
| 4989482 | Antigonish/New Glasgow | 4253311 Canada Inc. |
| 4989483 | Sydney | 4253311 Canada Inc. |
| 4989484 | Fredericton | 4253311 Canada Inc. |
| 4989485 | Miramichi/ Bathurst | 4253311 Canada Inc. |
| 4989486 | Grand Falls | 4253311 Canada Inc. |
| 4989487 | Campbellton | 4253311 Canada Inc. |
| 4989488 | Matane | 4253311 Canada Inc. |
| 4989489 | Trois-Rivieres | 4253311 Canada Inc. |
| 4989490 | Sherbrooke | 4253311 Canada Inc. |
| 4989491 | Montreal | 4253311 Canada Inc. |
| 4989492 | Ottawa | 4253311 Canada Inc. |
| 4989493 | Gananoque | 4253311 Canada Inc. |
| 4989494 | Kingston | 4253311 Canada Inc. |
| 4989495 | Guelph/ Kitchener | 4253311 Canada Inc. |
| 4989496 | Niagara/St. Catharines | 4253311 Canada Inc. |
| 4989497 | London/ Woodstock/St. Thomas | 4253311 Canada Inc. |
| 4989498 | Midland | 4253311 Canada Inc. |
| 4989499 | Regina | 4253311 Canada Inc. |
| 4989500 | Prince Albert | 4253311 Canada Inc. |
| 4989501 | Edmonton | 4253311 Canada Inc. |
NEXTWAVE NORWEGIAN 2.0 GHz LICENSES |
License Number | City | Licensee Name |
| 1001950 | Nationwide | Inquam Norway AS |
NEXTWAVE SWITZERLAND BWA LICENSES |
License Number | City | Licensee Name |
| 2551407 | Nationwide | Callix Consulting AG |
NEXTWAVE SLOVAKIAN 3.5 GHz LICENSES |
License Number | City | Licensee Name |
| 9510721014 and 9510721011 | Nationwide | WiMAX Telecom Slovakia s.r.o. |
NEXTWAVE ARGENTINE 2.5 GHz LICENSES |
License Number | City | Licensee Name |
Resolution S.C. 263/03 (Telecommunications license) Resolution S.C. 3357/99 (Value-added service license) Resolution S.C. 95/02 (Spectrum usage authorization) | National National Buenos Aires Metropolitan Area | Infotel Argentina S.A. |
Resolution S.C. 191/03 (Telecommunications license) Resolution S.C. 2267/97 (Value-added service license) Resolution S.C. 362/01 (Spectrum usage authorization) | National National Buenos Aires Metropolitan Area | Callbi S.A. |
NEXTWAVE CHILEAN 2.5 GHz LICENSES |
License Number | City | Licensee Name |
Resolution: No. 55 of January 15, 2007 (Digital television license) Decree: No. 1,023 of November 7, 2007 (Intermediate services license) | Santiago | Southam Chile S.A. |
Resolution: No. 54 of January 15, 2007 (Digital television license) Decree: No. 252 of April 14, 2008 (Intermediate services license) | Copiapó Viña del Mar and Valparaíso Temuco Concepción Punta Arenas Antofagasta | Sociedad Televisora CBC Ltda. |
FCC Litigation/Adverse Facts
| 1. | Ownership of wireless broadband spectrum in Argentina remains subject to obtaining governmental approval. Applications for transfer of control for both Infotel Argentina S.A. and Callbi S.A. have been on file since early 2008 and are in final stages of review by the Argentine regulatory authority, the CNC. |
| 2. | The Company holds 30 licenses issued by the FCC for WCS spectrum. The Company filed WCS renewal applications on April 23, 2007. Under FCC rules, licenses continue in effect during the pendency of timely filed renewal applications. At least three parties about which the Company is aware made filings purporting to be competing “applications” in response to renewal applications filed by the Company, AT&T and perhaps others. The basis on which the third-party filings were made was the alleged failure of WCS licensees to deploy service on WCS spectrum and satisfy substantial service requirements by July 21, 2007. However, on December 1, 2006, the FCC issued a waiver order extending the substantial service deadline for WCS licensees to July 21, 2010. The FCC’s rules contain no procedures for processing competing “applications” filed for WCS spectrum and the FCC has not accepted them for filing. On May 21, 2010, the FCC adopted amendments to the rules governing the WCS licenses and announced that it is also adopting a Notice of Proposed Rulemaking that commences a proceeding to examine the Commission’s rules and policies governing the renewal of wireless radio services authorizations and in a companion order to that notice will grant all pending WCS renewal applications conditioned on the outcome of that proceeding. The Company cannot predict how or when the FCC will complete the rulemaking proceeding and how it will impact the decision to grant the pending WCS license renewal applications. |
| 3. | Please refer to “Risks Relating to Governmental Regulation” in Item 1.A. of the Company’s Form 10-K filed on April 2, 2010 and the Company’s Form 10-Q filed on May 18, 2010, which are incorporated herein by reference. |
Schedule 4.14
Intellectual Property
1. Trademarks:
| | A. | NextWave Broadband Inc. Trademarks Applications and Registrations – See Annex A appended to this schedule. |
| | B. | PacketVideo Corporation U.S. Trademarks Applications and Registrations – See Annex B appended to this schedule. |
| | C. | PacketVideo Corporation Foreign Trademark Applications and Registrations – See Annex C appended to this schedule. |
2. Patents:
| | A. | PacketVideo Corporation Patents Applications and Issued Patents – See Annex D appended to this schedule. |
3. Trade Names:
None.
4. Copyrights:
None.
| | A. | Asset Purchase Agreement and Related Transactions dated December 24, 2008 among IPWireless, Inc, NextWave Wireless LLC and Northrop Grumman Information Technology, Inc. (containing a license transfer agreement) |
| | B. | NextWave Broadband Inc. sold its entire Patent Portfolio to WiLAN Inc. pursuant to the Patent Sale and Transfer Agreement dated July 16, 2009 |
| | C. | License Agreement dated July 16, 2009 between NextWave Broadband Inc. (Licensee) and WiLAN Inc. (Licensor) |
Annex A: NextWave Broadband Inc. Trademark Applications and Registrations
Mark | Country | Application No. | Application Date | Registration No. | Registration Date | Class | Status |
| NEXTWAVE | US | 75/078,584 | Mar-26-1996 | 2,413,339 | Dec-19-2000 | 09, 35, 42 | Registered |
| NEXTWAVE BROADBAND | US | 78/843,093 | Mar-22-2006 | | | 09, 36, 38, 42 | Published February 2, 2010 |
| NEXTWAVE WIRELESS | US | 78/843,098 | Mar-22-2006 | | | 09, 36, 38, 42 | Published February 2, 2010 |
| NEXTWAVE WIRELESS | Canada | 1,317,483 | Sep-21-2006 | | | N/A | Abandoned failure to respond to Office Action |
| NW and Design | Canada | 1351865 | Jun-15-2007 | | | N/A | Abandoned failure to respond to Office Action |
| MAXPORT | US | 77/505,912 | Jun-23-2008 | | | 09 | Abandoned September 7, 2009, did not file SOU |
| MXTV | US | 77/505,916 | Jun-23-2008 | | | 09 | Abandoned September 14, 2009, did not file SOU |
| MXTV | US | 77/505,917 | Jun-23-2008 | | | 38 | Abandoned September 14,2009, did not file SOU |
On February 13, 2009 outside counsel was instructed to stop incurring costs in the following trademarks. Several are currently pending, but at risk of being abandoned, as we are not responding to Office Actions for pending applications or paying maintenance fees to maintain registration.
Mark | Country | Application No. | Application Date | Registration No. | Registration Date | Class | Status |
| NW and Design | US | 77/065,799 | Dec-15-2006 | | | 09, 36, 38, 42 | Allowed 10/28/08, SOU due 4/28/09 (abandoned due to nonfiling of SOU) |
| NEXTWAVE BROADBAND | Chile | 803.168 | Jan-15-2008 | 821.326 | Jul-07-2008 | 09 | Registered |
Mark | Country | Application No. | Application Date | Registration No. | Registration Date | Class | Status |
| NEXTWAVE WIRELESS | Chile | 803.167 | Jan-15-2008 | 821.325 | Jul-07-2008 | 09 | Registered |
| NEXTWAVE BROADBAND | Korea | 45-2006-0003470 | Sep-21-2006 | 45-0025223 | Nov-04-2008 | 07, 13 | Registered |
| NEXTWAVE WIRELESS | Mexico | 808163 | Sep-21-2006 | 977492 | Mar-20-2007 | 09 | Registered |
| NEXTWAVE BROADBAND | Argentina | 2.799.704 | Oct-23-2007 | | | 09 | Pending* |
| NEXTWAVE WIRELESS | Argentina | 2.799.705 | Oct-23-2007 | | | 09 | Pending* |
| NEXTWAVE BROADBAND | Australia | 1136996 | Sep-21-2006 | | | 09, 38, 42 | Pending* |
| NEXTWAVE WIRELESS | Australia | 1136997 | Sep-21-2006 | | | 09, 38, 42 | Pending* |
| NEXTWAVE BROADBAND | Brazil | 828742650 | Sep-22-2006 | | | 09 | Pending* |
| NEXTWAVE BROADBAND | Brazil | 828742677 | Sep-22-2006 | | | 38 | Pending* |
| NEXTWAVE WIRELESS | Brazil | 828742634 | Sep-22-2006 | | | 09 | Pending* |
| NEXTWAVE WIRELESS | Brazil | 828742642 | Sep-22-2006 | | | 38 | Pending* |
| NW and Design | Brazil | 829193952 | Jun-15-2007 | | | 09 | Pending* |
| NEXTWAVE BROADBAND | China | 5624376 | Sep-22-2006 | | | 09 | Pending* |
| NEXTWAVE BROADBAND | China | 5624375 | Sep-22-2006 | | | 35 | Pending* |
| NEXTWAVE BROADBAND | China | 5624374 | Sep-22-2006 | | | 38 | Pending* |
| NEXTWAVE BROADBAND | China | 5624373 | Sep-22-2006 | | | 42 | Pending* |
| NEXTWAVE WIRELESS | China | 5624349 | Sep-22-2006 | | | 09 | Pending* |
| NEXTWAVE WIRELESS | China | 5624348 | Sep-22-2006 | | | 35 | Pending* |
| NEXTWAVE WIRELESS | China | 5624347 | Sep-22-2006 | | | 38 | Pending* |
| NEXTWAVE WIRELESS | China | 5624346 | Sep-02-2006 | | | 42 | Pending* |
| NW and Design | China | 6111411 | Jun-15-2007 | | | 09 | Pending* |
Mark | Country | Application No. | Application Date | Registration No. | Registration Date | Class | Status |
| NEXTWAVE BROADBAND | Colombia | 07-118288 | Nov-08-2007 | | | 09 | Pending* |
| NEXTWAVE WIRELESS | Colombia | 07-118284 | Nov-08-2007 | | | 09 | Pending* |
| NEXTWAVE BROADBAND | CTM | 5331103 | Sep-21-2006 | 5331103 | Dec-07-2007 | 09, 36, 38, 42 | Pending* |
| NEXTWAVE WIRELESS | CTM | 5331111 | Sep-21-2006 | | | 09, 36, 38, 42 | Pending* |
| NW and Design | CTM | 6005052 | Jun-15-2007 | | | 09, 36, 38, 42 | Pending* |
| NEXTWAVE WIRELESS | India | 1490197 | Sep-22-2006 | | | 09 | Pending* |
| NEXTWAVE WIRELESS | India | 1490198 | Sep-22-2006 | | | 36 | Pending* |
| NEXTWAVE WIRELESS | India | 1490199 | Sep-22-2006 | | | 38 | Pending* |
| NEXTWAVE WIRELESS | India | 1490200 | Sep-22-2006 | | | 42 | Pending* |
| NW and Design | India | 1569035 | Jun-15-2007 | | | 09 | Pending* |
| NEXTWAVE WIRELESS | Japan | 2006-088578 | Sep-22-2006 | | | 09, 38, 42 | Pending* |
| NW and Design | Japan | 2007-061325 | Jun-15-2007 | | | 09 | Pending* |
| NEXTWAVE WIRELESS | Korea | 45-2006-0003471 | Sep-21-2006 | | | 07, 09, 13 | Pending* |
| NW and Design | Korea | 40-2007-0032373 | Jun-15-2007 | | | 09 | Pending* |
| NEXTWAVE BROADBAND | Mexico | 808167 | Sep-21-2006 | 978051 | Mar-20-2007 | 09 | Pending* |
| NEXTWAVE BROADBAND | Mexico | 808168 | Sep-21-2006 | 987,113 | May-31-2007 | 35 | Pending* |
| NEXTWAVE BROADBAND | Mexico | 808169 | Sep-21-2006 | 977,493 | Mar-20-2007 | 38 | Pending* |
| NEXTWAVE BROADBAND | Mexico | 808170 | Sep-21-2006 | 979,520 | Apr-11-2007 | 42 | Pending* |
| NEXTWAVE WIRELESS | Mexico | 808166 | Sep-21-2006 | 979573 | Mar-20-2007 | 42 | Pending* |
| NEXTWAVE WIRELESS | New Zealand | 755575 | Sep-21-2006 | | | 09, 36, 38, 42 | Pending* |
| NEXTWAVE BROADBAND | Peru | 333337 | Oct-25-2007 | 139489 | Jun-12-2008 | 09 | Pending* |
Mark | Country | Application No. | Application Date | Registration No. | Registration Date | Class | Status |
| NEXTWAVE BROADBAND | Russia | Not yet assigned | May-12-2008 | | | 09 | Pending* |
| NEXTWAVE WIRELESS | Russia | Not yet assigned | May-12-2008 | | | 09 | Pending* |
| NEXTWAVE WIRELESS | Russia | 2006727132 | Sep-21-2006 | | | 36, 38, 42 | Pending* |
| NW and Design | Russia | Not yet assigned | Jun-15-2007 | | | 09 | Pending* |
| NEXTWAVE BROADBAND | Taiwan | 95048280 | Sep-21-2006 | 1293898 | Dec-16-2007 | 09, 36, 38, 42 | Pending* |
| NEXTWAVE WIRELESS | Taiwan | 95048279 | Sep-21-2006 | 1293897 | Dec-16-2007 | 09, 36, 38, 42 | Pending* |
| IBRIDGE | US | 78/388,758 | Mar-22-2004 | | | 38 | Pending* |
| NEXTWAVE WIRELESS | Venezuela | 25839/07 | Oct-26-2007 | | | 09 | Pending* |
| NW and Design | New Zealand | 770467 | Jun-15-2007 | 770467 | Dec-20-2007 | 09 | Cancelled |
| NW and Design | Australia | 1182405 | Jun-15-2007 | 1182405 | Jun-15-2007 | 09 | Cancelled |
* Currently pending, but at risk of being abandoned. Outside attorneys were instructed on 02/13/09 to abandon and not respond to office action.
Annex B: Packet Video US Trademark Applications and Registrations
| Serial No. | Registration No. | Date Filed | Registration Date | Case No | Status | Mark |
| 76/110,915 | 2676209 | 08/17/00 | 01/21/03 | PVC-T-03-001 | Renewed | PACKETVIDEO AND DESIGN |
| 76/110,916 | 2676210 | 08/17/00 | 01/21/03 | PVC-T-03-002 | Renewed | PACKETVIDEO AND DESIGN |
| 76/110,917 | 2676211 | 08/17/00 | 01/21/03 | PVC-T-03-003 | Renewed | PACKETVIDEO AND DESIGN |
| 76/110,919 | 2676212 | 08/17/00 | 01/21/03 | PVC-T-03-004 | Renewed | OVERLAPPING RECTANGLES AND CIRCLE DESIGN |
| 76/110,920 | 2676213 | 08/17/00 | 01/21/03 | PVC-T-03-005 | Renewed | OVERLAPPING RECTANGLES AND CIRCLE DESIGN |
| 76/110,921 | 2679613 | 08/17/00 | 01/28/03 | PVC-T-03-006 | Renewed | OVERLAPPING RECTANGLES AND CIRCLE DESIGN |
| 76/110,914 | 2735177 | 08/17/00 | 07/08/03 | PVC-T-03-007 | Renewed | PACKETVIDEO AND DESIGN |
| 76/110,918 | 2798240 | 08/17/00 | 12/23/03 | PVC-T-03-008 | Renewed | OVERLAPPING RECTANGLES AND CIRCLE DESIGN |
| 76/110,922 | 2805921 | 08/17/00 | 01/13/04 | PVC-T-03-009 | Renewed | PACKETVIDEO |
| 76/110,910 | 2830336 | 08/17/00 | 04/06/04 | PVC-T-03-010 | Renewed | PV AND DESIGN |
| 77/136,596 | | 03/21/07 | | PVC-T-07-001 | Abandoned | NINO |
| 77/143,082 | | 03/28/07 | | PVC-T-07-002 | Abandoned | LIBRE |
| 77/150,384 | | 04/06/07 | | PVC-T-07-003 | Abandoned | ELECTRICITY |
| 77/157,917 | | 04/16/07 | | PVC-T-07-004 | Abandoned | TRACKSTAR |
| | | | | PVC-T-07-005 | Not Filed | SHOWME |
| 77/157,907 | | 04/16/07 | | PVC-T-07-006 | Abandoned | SMILE |
| 77/157,895 | | 04/16/07 | | PVC-T-07-007 | Abandoned | RPM |
| 77/157,823 | | 04/16/07 | | PVC-T-07-008 | Abandoned | HOPSCOTCH |
| 77/163,303 | | 04/23/07 | | PVC-T-07-009 | Abandoned | EMILY |
| 77/192,349 | | 05/29/07 | | PVC-T-07-010 | Abandoned | MUSIC ON THE RUN |
| 77/236,296 | | 07/23/07 | | PVC-T-07-011 | Abandoned | MIX TAPE |
| 77/260,961 | 3577228 | 08/21/07 | 02/24/09 | PVC-T-07-012 | Registered | MEDIA FUSION |
| | | | | PVC-T-07-013 | Not Filed | TURNTABLE |
| | | | | PVC-T-07-014 | Not Filed | ALL-AROUND |
| 77/286,796 | 3581313 | 09/24/07 | 02/24/09 | PVC-T-07-015 | Registered | TWONKY |
| 77/286,806 | | 09/24/07 | | PVC-T-07-016 | SOU req’d | SMART MUSIC |
| 77/286,864 | | 09/24/07 | | PVC-T-07-017 | Abandoned | SMART ROCK |
| 77/294,716 | | 10/03/07 | | PVC-T-07-018 | Abandoned | PVCONNECT |
| 77/294,069 | | 10/02/07 | | PVC-T-07-019 | Abandoned | PVCONNECT DESIGN |
| 77/294,716 | | 12/14/07 | | PVC-T-07-020 | Abandoned | SCIFI |
| | | | | PVC-T-07-021 | Not Filed | FRIDGER |
| | | | | PVC-T-08-001 | Not Filed | ASTRO |
| 77/402,433 | | 02/21/08 | | PVC-T-08-002 | Abandoned | MEDIATOUCH |
| | | | | PVC-T-08-003 | Not Filed | ATTO |
| 77/430,988 | | 03/25/08 | | PVC-T-08-004 | SOU req’d | TELLY |
| 77/489,781 | | 06/03/08 | | PVC-T-08-005 | SOU req’d | TELLY DESIGN |
| | | | | PVC-T-08-006 | Not Filed | ALBUM ART VIEW |
| | | | | PVC-T-08-007 | Not Filed | THUMBNAIL VIEW |
| | | | | PVC-T-08-008 | Not Filed | ULTRAFAST CHANNEL SWITCHING |
| 77/702,387 | | 03/30/09 | | PVC-T-09-001 | Suspended | ARTE |
| 77/704/099 | | 04/01/09 | | PVC-T-09-002 | Published | SDC |
| 77/802,789 | | 08/12/09 | | PVC-T-09-003 | Published | LIBERATING MEDIA |
| | | | | PVC-T-09-004 | Not Filed | TWONKYREMOTE |
| | | | | PVC-T-09-005 | Not Filed | TWONKYMEDIABEAM |
| 77/825,866 | | 09/14/09 | | PVC-T-09-006 | Published | TWONKYBEAM |
| 77/899,041 | | 12/22/09 | | PVC-T-09-007 | Pending | MUSIC MESSAGE |
| | | | | PVC-T-10-001 | Not Filed | BEAM |
Annex C: PacketVideo Corporation Foreign Trademark Applications and Registrations
| GT REF | Country | Trademark | Int’l Classes | Status | Appl No. | Appl Date | Reg No. | Reg Date | Next Renewal Due | Agent | Owner |
| 001313/CTM | European Union | PVAUTHOR | 9 | Inactive | 1 728 518 | 28-Jun-00 | N/A | 28-Jun-10 | 28-Jun-10 | Lovells Boesebeck Droste | PacketVideo Corporation |
| 001304/MX | Mexico | PACKETVIDEO | 9 | Inactive | 435259 | 7-Jul-00 | 666987 | 7-Jul-00 | 7-Jul-10 | Olivares & Cia, S.C. | PacketVideo Corporation |
| 3405/001306/MX | Mexico | PVAUTHOR | 9 | Inactive | 435256 | 7-Jul-00 | 677060 | 7-Jul-00 | 7-Jul-10 | Olivares & Cia, S.C. | PacketVideo Corporation |
| 3405/001307/MX | Mexico | PVPLAYER | 9 | Inactive | 435257 | 7-Jul-00 | 676140 | 7-Jul-00 | 7-Jul-10 | Olivares & Cia, S.C. | PacketVideo Corporation |
| 3405/002205/MX | Mexico | PACKETVIDEO | 38 | Inactive | 435258 | 7-Jul-00 | 666988 | 28-Jul-00 | 7-Jul-10 | Olivares & Cia, S.C. | PacketVideo Corporation |
| 053630-011200/CTM | European Union | PACKETVIDEO | 42, 9, 35, 38 | Inactive | 1755628 | 13-Jul-00 | 1,755,628 | 24-Sep-01 | 31-Jul-10 | Lovells Boesebeck Droste | PacketVideo Corporation |
| 053630-013400/CTM | European Union | PV & Design | 38, 9, 42 | Inactive | 2091478 | 16-Feb-01 | 2091478 | 23-Oct-03 | 28-Feb-11 | F.J. Cleveland | PacketVideo Corporation |
| 053630-013600/CTM | European Union | PACKETVIDEO & Design | 42, 38, 9 | Inactive | 2092062 | 16-Feb-01 | 2092062 | 2-Jul-03 | 28-Feb-11 | F.J. Cleveland | PacketVideo Corporation |
| 001335/JP | Japan | PVPLAYER | 9 | Inactive | 67020/2000 | 16-Jun-00 | 067020/2000 | 9-Mar-01 | 9-Mar-11 | Kohno & Co. | PacketVideo Corporation |
| 001334/JP | Japan | PVAUTHOR | 9 | Inactive | 67016/2000 | 16-Jun-00 | 4482029 | 15-Jun-01 | 15-Jun-11 | Kohno & Co. | PacketVideo Corporation |
| 001341/KR | Korea (South) | PVAUTHOR | 9 | Inactive | 2000-24237 | 22-May-00 | 501014 | 11-Sep-01 | 11-Sep-11 | Central International Law Firm | PacketVideo Corporation |
| 001342/KR | Korea (South) | PVPLAYER | 9 | Inactive | 2000-24238 | 22-May-00 | 501015 | 11-Sep-01 | 11-Sep-11 | Central International Law Firm | PacketVideo Corporation |
| 001339/KR | Korea (South) | PACKETVIDEO | 38, 35, 9, 42 | Inactive | 2000-2473 | 22-May-00 | 4655 | 6-Feb-02 | 6-Feb-12 | Central International Law Firm | PacketVideo Corporation |
| 010125/KR | Korea (South) | PACKETVIDEO & Design | 38, 9 | Inactive | 2001-587 | 16-Feb-01 | 4886 | 11-Mar-02 | 11-Mar-12 | Central International Law Firm | PacketVideo Corporation |
| 053630-012100/JP | Japan | PACKETVIDEO | 9 | Inactive | 76881/2000 | 11-Jul-00 | 4638588 | 24-Jan-03 | 24-Jan-13 | Kohno & Co. | PacketVideo Corporation |
| 053630-013100 | Japan | PACKETVIDEO & Design | 38, 9 | Inactive | 12961/2001 | 16-Feb-01 | 4650449 | 7-Mar-03 | 7-Mar-13 | Kohno & Co. | PacketVideo Corporation |
| 053630-013300/JP | Japan | PV & Design | 9, 38 | Inactive | 12972/2001 | 16-Feb-01 | 4650450 | 7-Mar-03 | 7-Mar-13 | Kohno & Co. | PacketVideo Corporation |
Annex D: PacketVideo Corporation Patents Applications and Issued Patents
PacketVideo Corp. Status Report Regarding Issued Patents, Pending U.S. Applications (Provisional and Non-Provisional) and Pending PCT Applications - UPDATED 3123/10
Non-Prov. Ser. No. | Patent No. | Filing Dale | Issue Date | Atty. Docket No. | Status | Prov. Ser. No. | Filing Date | Atty. Docket No. | Status | Inventor(s) | Conversion Deadline | Title | Atty Docket No. (FOREIGN) | National’z | Int’l App. No. |
| | 6,167,092 | 08/12/99 | 12/26/00 | | | | | MLI-P-99-004 | Issued | Lengwehasatit | | METHOD AND DEVICE FOR VARIABLE COMPLEXITY DECODING… | | | |
| | 6,498,865 | 02/11/99 | 12/24/02 | | | | | MLI-P-99-001 | Issued | Brailean et al | | METHOD AND DEVICE FOR CONTROL AND COMPATIBLE DELIVERY OF DIGITALLY COMPRESSED VISIUAL DATA IN A… | | | |
| | 6,529,552 | 02/15/00 | 03/04/03 | | | | | MLI-P-99-003 | Issued | Tsai et al | | METHOD AND DEVICE FOR TRNSMISSION OF A VARIABLE BIT-RATE | | | |
| | | | | | | 60/218,096 | 07/13/00 | PVC-P-00-003 | Conv’d | Jianglao Wen | | ERROR RESILIENT ACCESS CONTROL… | | | |
| 10/155,394 | | 05/24/02 | | PVC-P-01-001 | Transf’d | | | | | David Kosiba | | METHOD FOR GUARANTEED DELIVERY OF MULTIMEDIA CONTENT… | | | |
| | | | | | | | | PVC-P-01-002 | Aban’d | n/a | | DEVICE FOR MOTION COMPENSATED VIDEO ENCODING… | | | |
| | | | | | | 60/394,694 | 07/09/02 | PVC-P-01-003 | Aban’d | n/a | | METHOD AND APPARATUS FOR CONSTANT QUALITY BASED VIDEO RATE CONTROL | | | |
| 11/483,036 | | 07/07/06 | | PVC-P-06-006 | Pending | 60/698,107 | 07/11/05 | PVC-P-05-002 | Conv’d | Neff et al. | | SYSTEM AND METHOD FOR TRANSMITTING DATA | PVC-P-06-006: PCT | China, EPO, Japan | PCT/US2006/026573 |
| 11/496,220 | | 08/02/06 | | PVC-P-06-007 | Allowed | 60/719,381 | 09/22/05 | PVC-P-05-003 | Conv’d | Chan et al. | | A SYSTEM AND A METHOD FOR TRANSFERRING MULTIPLE DATA CHANNELS | PVC-P-06-007: PCT | Australia, Canada, China, EPO, Japan | PCT/US2006/034536 |
| 11/581,526 | | 10/16/06 | | PVC-P-06-010 | Pending | 60/727,911 | 10/18/05 | PVC-P-05-005 | Conv’d | Espelien | | SYSTEM AND METHOD FOR CONTROLLING AND/OR FOR MANAGING METADATA OF MULTIMEDIA | PVC-P-06-010: PCT | NONE | PCT/US2006/040320 |
| 11/581,306 | | 10/16/06 | | PVC-P-06-009 | Pending | 60/736,410 | 11/14/05 | PVC-P-05-006 | Conv’d | Espelien | | ACCESSING ELECTRONIC PROGRAM GUIDE INFORMATION AND MEDIA CONTENT FROM MULTIPLE LOCATIONS USING MOBILE DEVICES | PVC-P-06-009: PCT | EPO | PCT/US2006/042409 |
| 11/707,515 | | 02/16/07 | | PVC-P-07-004 | Pending | 60/786,749 | 03/28/06 | PVC-P-05-007 | Conv’d | Espelien | 03/28/07 | SYSTEM AND METHOD FOR TRANSFERRING INFORMATION BETWEEN TERMINALS | PVC-P-07-004: PCT | NONE | PCT/US2007/007356 |
| 11/729,689 | | 03/28/07 | | PVC-P-07-005 | Pending | 60/786,974 | 03/29/06 | PVC-P-05-008 | Conv’d | Sherwood et al. | 03/29/07 | SYSTEM AND METHOD FOR SECURING CONTENT RATINGS | PVC-P-07-005: PCT | NONE | PCT/US2007/007498 |
| 11/704,054 | | 02/08/07 | | PVC-P-06-011 | Pending | 60/772,161 | 02/10/06 | PVC-P-05-009 | Conv’d | Neff | 02/10/07 | SYSTEM AND METHOD FOR CONNECTING MOBILE DEVICES | PVC-P-06-011: PCT | EPO | PCT/US2007/003436 |
| 11/807,865 | | 05/30/07 | | PVC-P-07-008 | Pending | 60/836,828 | 08/10/06 | PVC-P-06-001 | Conv’d | Yitiz | 08/10/07 | SYSTEM AND METHOD FOR INTELLIGENT MEDIA RECORDING AND PLAYBACK ON A MOBILE DEVICE | PVC-P-07-008: PCT | NONE | PCT/US2007/020574 |
| 11/706,785 | 7493106 | 02/14/07 | 02/17/09 | PVC-P-07-001 | Issued | 60/783,282 | 03/17/06 | PVC-P-06-002 | Conv’d | Espelien | 03/17/07 | SYSTEM AND METHOD FOR DELIVERING MEDIA CONTENT BASED ON A CONTENT SUBSCRIPTION | PVC-P-07-001: PCT | NONE | PCT/US2007/006602 |
| 11/706,480 | | 02/15/07 | | PVC P-07-002 | Pending | 60/786,221 | 03/27/06 | PVC-P-06-003 | Conv’d | Espelien | 03/27/07 | SYSTEM AND METHOD FOR IDENTIFYING COMMON MEDIA CONTENT | PVC-P-07-002: PCT | NONE | PCT/US2007/007324 |
| 11/706,481 | | 02/15/07 | | PVC-P-07-003 | Aban'd | 60/786,222 | 03/27/06 | PVC-P-06-004 | Conv’d | Espelien | 03/27/07 | SYSTEM AND METHOD FOR ACCESSING ELECTRONIC PROGRAM GUIDE INFORMATION | PVC-P-07-003: PCT | EPO (Aban’d) | PCT/US2007/007345 |
| 11/890,745 | | 08/07/07 | | PVC-P-07-009 | Pending | 60/837,370 | 08/11/06 | PVC-P-06-005 | Conv’d | Sherwood | 08/07/07 | SYSTEM AND METHOD FOR TRANSMITTING AND RECEIVING MULTIMEDIA | PVC-P-07-009: PCT | NONE | PCT/US2007/017554 |
| 11/973,477 | | 10/09/07 | | PVC-P7-014 | Pending | 60/851,355 | 10/12/06 | PVC-P-06-008 | Conv’d | Espelien | 10/09/07 | SYSTEM AND METHOD FOR CREATING MULTIMEDIA RENDEZVOUS POINTS FOR MOBILE DEVICES | PVC-P-07-014:PCT | NONE | PCT/US2007/021516 |
| 12/315,667 | | 12/05/08 | | PVC-P-08-0088- | Pending | 61/007,343 | 12/12/07 | PVC-P-07-006 | Conv’d | Crossley et al | 12/12/08 | SYSTEM AND METHOD FOR CREATING METADATA | PVC-P-08-008:PCT | 06/12/10 | PCT/US2008/013382 |
| 12/315,536 | | 12/04/08 | | PVC-P-08-009 | Pending | 61/007,408 | 12/12/07 | PVC-P-07-007 | Conv’d | Jenkins et al. | 12/12/08 | SYSTEM AND METHOD FOR GENERATING A RECOMMENDA-TION ON A MOBILE DEVICE | PVC-P-08-009:PCT | 06/12/10 | PCT/US2009/013347 |
| 12/283,087 | | 08/20/08 | | PVC-P-08-005 | Pending | 60/993,393 | 09/11/07 | PVC-P-07-012 | Conv’d | Espelien | 09/11/08 | SYSTEM AND METHOD FOR VIRTUAL STORAGE FOR MEDIA SERVICE ON A PORTABLE DEVICE | PVC-P-08-005:PCT | EPO | PCT/US2008/010514 |
| 12/228,475 | | 08/13/08 | | PVC-P-08-004 | Pending | 60/965,721 | 08/21/07 | PVC-P-07-013 | Conv’d | Espelien | 08/21/08 | MOBILE MEDIA ROUTER AND METHOD FOR USING SAME | PVC-P-08-004-PCT | EPO, Japan | PCT/US2008/009678 |
| | | | | | | 29/307,342 | 04/15/08 | PVC-P-08-001 | Reg in EU, Pending US | Wilkens et al. | N/A (DESIGN) | TELEVISION RECEIVER FOR MOBILE TELEPHONE | PVC-P-08-001:EU | EU | Reg. No. 000946934-0001 |
| 12/381,052 | | 03/06/09 | | PVC-P-09-002 | Pending | 61/069,053 | 03/12/08 | PVC-P-08-002 | Conv’d | Neff et al. | 03/12/09 | SYSTEM AND METHOD FOR REFORMATTING MULTMEDIA | PVC-P-09-002:PCT | Taiwan | PCT/US2009/001476 |
| 12/383,870 | | 03/30/09 | | PVC-P-09-003 | Pending | 61/072,426 | 03/31/08 | PVC-P-08-003 | Conv’d | Schwartz et al. | 03/31/09 | SYSTEM AND METHOD FOR MANAGING CONTROLLING AND/OR RENDERING MEDIA IN A NETWORK | PVC-P-09-003:PCT | Taiwan | PCT/US2009/001964 |
| 12/284,948 | | 09/26/08 | | PVC-P-08-006 | Pending | 60/993,393 | 09/26/07 | PVC-P-07-010 | Conv’d | Al Shaykh et al. | 09/26/08 | SYSTEM AND METHOD FOR RECEIVING BROADCAST MULTIMEDIA ON A MOBILE DEVICE | PVC-P-08-006:PCT | EPO, China, Japan, Taiwan | PCT/US2008/011152 |
| 12/287,442 | | 10/29/08 | | PVC-P-08-007 | Pending | | | | | Gran et al. | | SYSTEM AND METHOD FOR CONTROLLING MEDIA RENDERING IN A NETWORK USING A MOBILE DEVICE | PVC-P-08-007:PCT | 04/09/11 | PCT/US2008/012280 |
| 12/592,838 | | 12/03/09 | | PVC-P-09-006 | Pending | 61/200,801 | 12/10/08 | PVC-P-08-010 | Pending | Schwartz et al. | 12/10/09 | SYSTEM AND METHOD FOR BROWSING, SELECTING AND/OR CONTROLLING RENDERING OF MEDIA WITH A MOBILE DEVICE | PVC-P-09-006:PCT | 06/04/11 | PCT/US2009/006339 |
| 12/658,470 | | 02/09/10 | | PVC-P-09-009 | Pending | 61/207,381 | 02/11/09 | PVC-P-09-001 | Pending | Luessi et al. | 02/11/10 | SYSTEM AND METHOD FOR FRAME INTEROLATION FOR A COMPRESSED VIDEO BITSTREAM | PVC-P-09-009:PCT | 08/11/12 | PCT/US2010/00353 |
| 12/459,090 | | 06/26/09 | | PVC-P-09-004 | Pending | | | | | Al Shaykh et al. | | SYSTEM AND METHOD FOR MANAGING AND/OR RENDERING INTERNET MULTIMEDIA CONTENT IN A NETWORK | | | |
| | | | | | | 61/275,950 | 09/04/09 | PVC-P-09-005 | Pending | Schwartz et al. | 09/04/10 | SYSTEM AND METHOD FOR MANAGING INTERNET MEDIA CONTENT | | | |
| 12/590,972 | | 11/17/09 | | PVC-P-09-007 | Pending | | | | Con’t of 06-007 | Chan et al. | | A SYSTEM AND A METHOD FOR TRANSFERRING MULTIPLE DATA CHANNELS | | | |
| | | | | | | 61/283,423 | 12/03/09 | PVC-P-09-008 | Pending | Al-Shaykh et al | 12/03/10 | SYSTEM AND METHOD FOR TRANSFERRING MEDIA CONTENT FROM A MOBILE DEVICE TO A HOME NETWORK | | | |
| 12/657,802 | | 01/28/10 | | PVC-P-09-010 | Pending | | | | | Mundy et al. | | SYSTEM AND METHOD FOR REQUESTING RETRIEVING AND/OR ASSOCIATING CONTACT IMAGES | | | |
Schedule 4.15
Claims and Proceedings
| 1. | On September 16, 2008, a putative class action lawsuit, captioned “Sandra Lifschitz, On Behalf of Herself and All Others Similarly Situated, Plaintiff, v. NextWave Wireless Inc., Allen Salmasi, George C. Alex and Frank Cassou, Defendants,” was filed in the U.S. District Court for the Southern District of California against Parent and certain of Parent’s officers. The suit alleges that the defendants made false and misleading statements and/or omissions in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Rule 10b-5 promulgated thereunder. The suit seeks unspecified damages, interest, costs, attorneys’ fees, and injunctive, equitable or other relief on behalf of a purported class of purchasers of our common stock during the period from March 30, 2007 to August 7, 2008. A second putative class action lawsuit captioned “Benjamin et al. v. NextWave Wireless Inc. et al.” was filed on October 21, 2008 alleging the same claims on behalf of purchasers of Parent’s common stock during an extended class period, from November 27, 2006 through August 7, 2008. On February 24, 2009, the Court issued an Order consolidating the two cases and appointing a lead plaintiff pursuant to the Private Securities Litigation Reform Act. On May 15, 2009, the lead plaintiff filed an Amended Complaint, and on June 29, 2009, Parent filed a Motion to Dismiss that Amended Complaint. On March 5, 2010, the Court Granted Parent’s Motion to Dismiss without prejudice and permitted the lead plaintiff 21 days from the date of the Order to file an Amended Complaint. On March 26, 2010, lead plaintiff filed a Second Amended Consolidated Complaint. On April 30, 2010, NextWave filed a Motion to Dismiss the Second Amended Consolidated Complaint. . |
| 2. | On September 28, 2008, the Parent’s wholly-owned subsidiary, GO Networks, Inc. (the “Applicant”), submitted an application pursuant to Chapter 12 of the Israeli Companies Ordinance, 1983-5743 (the “Israeli Companies Ordinance”) with the Tel Aviv District Court (the "Court") requesting the appointment of a permanent liquidator for the purpose of effecting a court-supervised liquidation of GO Networks Ltd. On January 14, 2009, the court issued an order for the permanent liquidation of GO Networks Ltd and appointed Shaul Kotler as the interim liquidator. On February 24, 2009, the Applicant sold its intellectual property and customer contracts, along with the obligation to provide warranty support, to the same buyer who purchased the GO Networks Ltd assets from the GO Networks Ltd liquidation. |
| 3. | On September 8, 2008, the Financial Industry Regulatory Authority (FINRA) issued a letter requesting information from the Parent in connection with its second quarter financial report and subsequent drop in its stock price. On February 25, 2009, FINRA concluded its investigation and referred the matter to the Securities and Exchange Commission (the “SEC”). On August 20, 2009, the SEC issued a records subpoena to Parent’s Custodian of Records, and on October 23, 2009, Parent completed its response to the SEC. No further requests have been received at this time. |
FCC Litigation/Adverse Facts
Please refer to the FCC Litigation/Adverse Facts portion of Schedule 4.13 which is incorporated by reference
Schedule 4.18
Affiliate Transactions
The Company’s Form 10-K filed on April 2, 2010 and the Company’s Form 10-Q filed on May 18, 2010 are incorporated herein by reference.
Schedule 4.21
Qualified Plans and Multiemployer Plans
1. NextWave Broadband, Inc. 401(k) Retirement and Savings Plan.
2. NextWave Broadband, Inc. Welfare Benefits Plan.
Schedule 4.22
Certain Fees
| 1. | The Company has engaged Moelis & Company LLC (“Moelis”) pursuant to an engagement letter dated December 28, 2009 to act as the Company’s financial advisor to, among other things, restructure its outstanding financial obligations, including the Notes. Moelis’ fees for such engagement are set forth in the engagement letter. |
Schedule 4.23
Environmental Matters
None.
Schedule 4.26
Indebtedness
Long Term Obligations
| (in thousands) | | | | | | |
| | | April 3, 2010 | | | January 2, 2010 | |
| | | | | | | |
| 15% Senior Secured Notes due July 2011, net of unamortized discounts of $8,307 and $6,177 at April 3, 2010 and January 2, 2010, respectively | | $ | 170,051 | | | $ | 162,076 | |
| | | | | | | | | |
| 15% Senior-Subordinated Secured Second Lien Notes due November 2011, net of unamortized discounts of $14,016 and $13,182 at April 3, 2010 and January 2, 2010, respectively | | | 135,431 | | | | 127,573 | |
| | | | | | | | | |
| 12% Third Lien Subordinated Secured Convertible Notes due December 2011, net of unamortized discounts of $164,623 and $134,230 at April 3, 2010 and January 2, 2010, respectively | | | 383,843 | | | | 389,869 | |
| | | | | | | | | |
| Wireless spectrum leases, net of unamortized discounts of $15,973 and $16,556 at April 3, 2010 and January 2, 2010, respectively; expiring from 2011 through 2036 with one to five renewal options ranging from 10 to 15 years each | | | 22,673 | | | | 25,768 | |
| | | | | | | | | |
| Collateralized non-recourse bank loan with interest at 30-day LIBOR plus 0.25%; principal and interest due upon sale of auction rate securities; secured by auction rate securities | | | 21,376 | | | | 21,406 | |
| | | | | | | | | |
| Other | | | 1,523 | | | | 1,412 | |
| | | | | | | | | |
| Long-term obligations | | | 734,897 | | | | 728,104 | |
| | | | | | | | | |
| Less current portion | | | (86,222 | ) | | | (86,154 | ) |
| | | | | | | | | |
| Long-term portion | | $ | 648,675 | | | $ | 641,950 | |
Schedule 4.32
| 1. | Pursuant to the Stockholder’s Agreement with Docomo, PacketVideo Corporation is restricted from paying dividends to NextWave without consent of NTT DoCoMo, Inc. |
