-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, R7h9ePorpmRPU+KWpQ0PI/Kv4zr3sTboxNrLwoYEEZ9ngKeXB5bafk3YuOnPrPV2 DzTczjsjHLDtCI1GZDJDXA== 0001104659-09-042850.txt : 20090710 0001104659-09-042850.hdr.sgml : 20090710 20090710170425 ACCESSION NUMBER: 0001104659-09-042850 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20090710 DATE AS OF CHANGE: 20090710 GROUP MEMBERS: AVENUE AIV US GENPAR, LLC GROUP MEMBERS: AVENUE AIV US, L.P. GROUP MEMBERS: AVENUE CAPITAL MANAGEMENT II GENPAR, LLC GROUP MEMBERS: AVENUE CAPITAL PARTNERS IV, LLC GROUP MEMBERS: AVENUE CAPITAL PARTNERS V, LLC GROUP MEMBERS: AVENUE CDP GLOBAL OPPORTUNITIES FUND, L.P. GROUP MEMBERS: AVENUE GLOBAL OPPORTUNITIES FUND GENPAR, LLC GROUP MEMBERS: AVENUE INTERNATIONAL MASTER GENPAR, LTD. GROUP MEMBERS: AVENUE INTERNATIONAL MASTER, L.P. GROUP MEMBERS: AVENUE INVESTMENTS, L.P. GROUP MEMBERS: AVENUE PARTNERS, LLC GROUP MEMBERS: AVENUE SPECIAL SITUATIONS FUND IV, L.P. GROUP MEMBERS: AVENUE SPECIAL SITUATIONS FUND V, L.P. GROUP MEMBERS: GL PARTNERS IV, LLC GROUP MEMBERS: GL PARTNERS V, LLC GROUP MEMBERS: MARC LASRY SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NextWave Wireless Inc. CENTRAL INDEX KEY: 0001374993 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 205361360 STATE OF INCORPORATION: DE FISCAL YEAR END: 1229 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-82596 FILM NUMBER: 09940649 BUSINESS ADDRESS: STREET 1: 12670 HIGH BLUFF DRIVE CITY: SAN DIEGO STATE: CA ZIP: 92130 BUSINESS PHONE: 858 480-3100 MAIL ADDRESS: STREET 1: 12670 HIGH BLUFF DRIVE CITY: SAN DIEGO STATE: CA ZIP: 92130 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Avenue Capital Management II, L.P. CENTRAL INDEX KEY: 0001317338 IRS NUMBER: 522258514 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 535 MADISON AVENUE STREET 2: 15TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 212-850-7519 MAIL ADDRESS: STREET 1: 535 MADISON AVENUE STREET 2: 15TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 FORMER COMPANY: FORMER CONFORMED NAME: Avenue Capital Management II, LLC DATE OF NAME CHANGE: 20050210 SC 13D/A 1 a09-17570_2sc13da.htm SC 13D/A

	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549

	SCHEDULE 13D/A (Rule 13d-101)

Under the Securities Exchange Act of 1934
(Amendment No. 2)*

NEXTWAVE WIRELESS INC.

(Name of Issuer)

Common Stock

(Title of Class of Securities)

65337Y102

(CUSIP Number)

Sonia Gardner

President and Managing Partner

Avenue Capital Group

535 Madison Avenue

New York, NY 10022

(212) 850-7519

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

July 2, 2009

(Date of Event Which Requires Filing of this Amendment)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box x

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No: 65337Y102

	1	Names of Reporting Persons Avenue Capital Management II, L.P. (“Avenue Capital Management II”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 63,106,900(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 63,106,900

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 63,106,900

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 38.0%(2)

	14	Type of Reporting Person PN

(1) Includes 709,498 shares of common stock underlying stock options granted by the Issuer to Robert T. Symington, an employee of Avenue Capital Management II, L.P. (“Avenue Capital Management II”) and a director of the Issuer. Pursuant to an agreement between Mr. Symington and Avenue Capital Management II, any compensation received by Mr. Symington as a director of the Issuer shall be for the benefit of the Funds (as defined below). Avenue Capital Management II exercises voting and investment power over the securities beneficially owned by Avenue Capital Management II and by the Funds (as defined below). This number also includes 1,889,984 shares of common stock held by Avenue Special Situations Fund IV, L.P. (“Avenue Spec IV”) and Avenue Investments, L.P. (“Avenue Investments”) and shares of common stock underlying (i) Third Lien Subordinated Secured Convertible Notes (the “Third Lien Notes”) in the principal amount of $134,730,977, convertible into 12,192,847 shares of common stock, issued by the Issuer to Avenue Spec IV, Avenue Investments, Avenue International Master, L.P. (“Avenue International”) and Avenue CDP Global Opportunities Fund, L.P. (“CDP Global”) on October 9, 2008, together with Payment in Kind (“PIK”) interest payable over the term of the Third Lien Notes of $36,626,008, convertible into 3,314,571 shares of common stock (the Third Lien Notes were immediately convertible upon their issuance), (ii) Warrants to purchase 30,000,000 shares of common stock, issued by the Issuer to Avenue AIV US, L.P. (“Avenue AIV” and together with Avenue Spec IV, Avenue Investments, Avenue International, CDP Global, and Avenue Special Situations Fund V, L.P. (“Avenue Spec V”), the “Funds”) on October 9, 2008 (the Warrants were immediately exercisable upon their issuance) (iii) Additional Warrants to purchase 7,500,000 shares of common stock, issued by the Issuer to Avenue AIV on April 14, 2009 (the Additional Warrants were immediately exercisable upon their issuance) and (iv) Incremental Indebtedness Warrants to purchase 7,500,000 shares of common stock, issued by the Issuer to Avenue AIV on July 2, 2009 (the Incremental Indebtedness Warrants were immediately exercisable upon their issuance).

(2) Based on 103,091,858 shares of common stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons Avenue Capital Management II GenPar, LLC (“GenPar”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 63,106,900(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 63,106,900

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 63,106,900

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 38.0%(2)

	14	Type of Reporting Person CO

(1) This number represents shares held by Avenue Capital Management II. GenPar is the general partner of Avenue Capital Management II.

(2) Based on 103,091,858 shares of common stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons Marc Lasry

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization United States of America

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 63,106,900(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 63,106,900

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 63,106,900

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 38.0%(2)

	14	Type of Reporting Person IN

(1) This number represents shares held by Avenue Capital Management II. Marc Lasry is the managing member of GenPar, the general partner of Avenue Capital Management II and he exercises voting and investment power over the securities beneficially owned by Avenue Capital Management II and by the Funds.

(2) Based on 103,091,958 shares of common stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons Avenue Special Situations Fund IV, L.P. (“Avenue Spec IV”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 4,212,733(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 4,212,733

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 4,212,733

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 3.9%(2)

	14	Type of Reporting Person PN

(1) Includes 330,633 shares of common stock underlying stock options granted by the Issuer to Robert T. Symington, an employee of Avenue Capital Management II and a director of the Issuer. Pursuant to an agreement between Mr. Symington and Avenue Capital Management II, any compensation received by Mr. Symington as a director of the Issuer shall be for the benefit of the Funds. This number also includes 1,753,552 shares of common stock held by Avenue Spec IV and shares of common stock underlying Third Lien Notes in the principal amount of $18,493,194, convertible into 1,673,590 shares of common stock, issued by the Issuer to Avenue Spec IV on October 9, 2008, together with PIK interest payable over the term of the Third Lien Notes of $5,027,286, convertible into 454,958 shares of common stock (the Third Lien Notes were immediately convertible upon their issuance).

(2) Based on 103,091,858 shares of common stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons Avenue Capital Partners IV, LLC (“Avenue Capital IV”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 4,212,733(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 4,212,733

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 4,212,733

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 3.9%(2)

	14	Type of Reporting Person CO

(1) This number represents shares held by Avenue Spec IV. Avenue Capital IV is the general partner of Avenue Spec IV.

(2) Based on 103,091,858 shares of common stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons GL Partners IV, LLC (“GL IV”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 4,212,733(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 4,212,733

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 4,212,733

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 3.9%(2)

	14	Type of Reporting Person CO

(1) This number represents shares held by Avenue Spec IV. GL IV is the managing member of Avenue Capital IV, the general partner of Avenue Spec IV.

(2) Based on 103,091,858 shares of common stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons Avenue Investments, L.P. (“Avenue Investments”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 3,659,450(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 3,659,450

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 3,659,450

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 3.4%(2)

	14	Type of Reporting Person PN

(1) Includes 65,795 shares of common stock underlying stock options granted by the Issuer to Robert T. Symington, an employee of Avenue Capital Management II and a director of the Issuer. Pursuant to an agreement between Mr. Symington and Avenue Capital Management II, any compensation received by Mr. Symington as a director of the Issuer shall be for the benefit of the Funds. This number also includes 136,432 shares of common stock held by Avenue Investments and Third Lien Notes in the principal amount of $30,036,924, convertible into 2,718,273 shares of common stock, issued by the Issuer to Avenue Investments on October 9, 2008, together with PIK Interest payable over the term of the Third Lien Notes of $8,165,402, convertible into 738,950 shares of common stock (the Third Lien Notes were immediately convertible upon their issuance).

(2) Based on 103,091,858 shares of common stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons Avenue Partners, LLC (“Avenue Partners”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization New York

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 3,659,450(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 3,659,450

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 3,659,450

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 3.4%(2)

	14	Type of Reporting Person CO

(1) This number represents shares held by Avenue Investments. Avenue Partners is the general partner of Avenue Investments.

(2) Based on 103,091,858 shares of common stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons Avenue International Master, L.P. (“Avenue International”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization Cayman Islands

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 7,674,019(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 7,674,019

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 7,674,019

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 6.9%(2)

	14	Type of Reporting Person PN

(1) Includes 115,858 shares of common stock underlying stock options granted by the Issuer to Robert T. Symington, an employee of Avenue Capital Management II and a director of the Issuer. Pursuant to an agreement between Mr. Symington and Avenue Capital Management II, any compensation received by Mr. Symington as a director of the Issuer shall be for the benefit of the Funds. This number also includes shares of common stock underlying the Third Lien Notes in the principal amount of $65,666,531 convertible into 5,942,672 shares of common stock, issued by the Issuer to Avenue International on October 9, 2008, together with PIK interest payable over the term of the Third Lien Notes of $17,851,150, convertible into 1,615,489 shares of common stock (the Third Lien Notes were immediately convertible upon their issuance).

(2) Based on 103,091,858 shares of common stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons Avenue International Master GenPar, Ltd. (“Avenue International GenPar”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization Cayman Islands

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 7,674,019(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 7,674,019

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 7,674,019

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 6.9%(2)

	14	Type of Reporting Person CO

(1) This number represents shares held by Avenue International. Avenue International GenPar is the general partner of Avenue International.

(2) Based on 103,091,858 shares of common stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons Avenue CDP Global Opportunities Fund, L.P. (“CDP Global”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization Cayman Islands

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 2,391,664(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 2,391,664

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 2,391,664

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 2.3%(2)

	14	Type of Reporting Person PN

(1) Includes 28,178 shares of common stock underlying stock options granted by the Issuer to Robert T. Symington, an employee of Avenue Capital Management II and a director of the Issuer. Pursuant to an agreement between Mr. Symington and Avenue Capital Management II, any compensation received by Mr. Symington as a director of the Issuer shall be for the benefit of the Funds. This number also includes shares of common stock underlying Third Lien Notes in the principal amount of $20,534,348 convertible into 1,858,312 shares of common stock, issued by the Issuer to CDP Global on October 9, 2008, together with PIK interest payable over the term of the Third Lien Notes of $5,582,170, convertible into 505,174 shares of common stock (the Third Lien Notes were immediately convertible upon their issuance).

(2) Based on 103,091,858 shares of common stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons Avenue Global Opportunities Fund GenPar, LLC (“CDP Global GenPar”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 2,391,664(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 2,391,664

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 2,391,664

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 2.3%(2)

	14	Type of Reporting Person CO

(1) This number represents shares held by CDP Global. CDP Global GenPar is the general partner of CDP Global.

(2) Based on 103,091,858 shares of common stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons Avenue AIV US, L.P. (“Avenue AIV”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 45,000,000(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 45,000,000

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 45,000,000

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 30.4%(2)

	14	Type of Reporting Person PN

(1) Represents (i) Warrants to purchase 30,000,000 shares of common stock, issued by the Issuer to Avenue AIV on October 9, 2008 (the Warrants were immediately exercisable upon their issuance); (ii) Additional Warrants to purchase 7,500,000 shares of common stock, issued by the Issuer to Avenue AIV on April 14, 2009 (the Additional Warrants were immediately exercisable upon their issuance); and (iii) Incremental Indebtedness Warrants to purchase 7,500,000 shares of common stock, issued by the Issuer to Avenue AIV on July 2, 2009 (the Incremental Indebtedness Warrants were immediately exercisable upon their issuance).

(2) Based on 103,091,858 shares of Common Stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons Avenue AIV US GenPar, LLC (“Avenue AIV GenPar”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 45,000,000(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 45,000,000

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 45,000,000

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 30.4%(2)

	14	Type of Reporting Person CO

(1) This number represents shares held by Avenue AIV. Avenue AIV GenPar is the general partner of Avenue AIV.

(2) Based on 103,091,858 shares of Common Stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons Avenue Special Situations Fund V, L.P. (“Avenue Spec V”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 169,035(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 169,035

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 169,035

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 0.2%(2)

	14	Type of Reporting Person PN

(1) Includes 169,035 shares of common stock underlying stock options granted by the Issuer to Robert T. Symington, an employee of Avenue Capital Management II and a director of the Issuer. Pursuant to an agreement between Mr. Symington and Avenue Capital Management II, any compensation received by Mr. Symington as a director of the Issuer shall be for the benefit of the Funds.

(2) Based on 103,091,858 shares of common stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons Avenue Capital Partners V, LLC (“Avenue Capital V”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 169,035(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 169,035

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 169,035

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 0.2%(2)

	14	Type of Reporting Person CO

(1) This number represents shares held by Avenue Spec V. Avenue Capital V is the general partner of Avenue Spec V.

(2) Based on 103,091,858 shares of common stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

	1	Names of Reporting Persons GL Partners V, LLC (“GL V”)

	2	Check the Appropriate Box if a Member of a Group
		(a)			o
		(b)			x

	3	SEC Use Only

	4	Source of Funds SC; OO

	5	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 169,035(1)

			8	Shared Voting Power -0-

			9	Sole Dispositive Power 169,035

			10	Shared Dispositive Power -0-

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 169,035

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 0.2%(2)

	14	Type of Reporting Person CO

(1) This number represents shares held by Avenue Spec V. GL V is the managing member of Avenue Capital V, the general partner of Avenue Spec V.

(2) Based on 103,091,858 shares of common stock outstanding on April 30, 2009.

CUSIP No: 65337Y102

Explanatory Note

Pursuant to Rule 13d-2(a) of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended, the undersigned hereby amends the following items on Amendment No. 2 to the Schedule 13D originally filed by the Reporting Persons on November 19, 2008, as amended on April 30, 2009.

Item 4. Purpose of Transaction.

On July 2, 2009, NextWave Wireless, Inc. (the “Issuer”) and NextWave Wireless LLC, a wholly-owned subsidiary (“NextWave LLC”) entered into a Second Lien Incremental Indebtedness Agreement (the “Agreement”) with The Bank of New York Mellon, as Collateral Agent, and the guarantors and purchasers named therein, pursuant to which NextWave LLC issued additional Senior-Subordinated Secured Second Lien Notes due 2010 (the “Notes”) to Avenue AIV US, L.P. (“Avenue AIV”) in the aggregate principal amount of $15,000,000.

In connection with the issuance of the Notes, the Issuer also entered into a Warrant Agreement dated as of July 2, 2009 with Avenue AIV (the “Warrant Agreement”), pursuant to which the Issuer issued to Avenue AIV Warrants to purchase an aggregate of 7,500,000 shares of Common Stock (the “Warrants”). The Warrants have an exercise price of $0.01 per share (subject to certain adjustments as set forth in the Warrant Agreement) and are exercisable at any time from the date of issuance until June 29, 2012.

The Warrant Agreement entitles Avenue AIV and its affiliates to a pre-emptive right to acquire, up to the amount of its pro rata ownership interest in the Issuer’s Common Stock on a fully-diluted basis (together with any ownership interests held by its affiliates), shares of common stock, preferred stock or any other equity or equity linked security which the Issuer may propose to issue. The pre-emptive right will expire on the earlier of the exercise expiration date of the Warrants and the occurrence of a qualified public offering, and does not apply to certain issuances of securities, including issuances pursuant to pre-existing rights and grants made pursuant to stock incentive plans of the Issuer.

The shares of Common Stock underlying the Warrants are entitled to certain registration rights as evidenced by the Registration Rights Agreement Acknowledgement, dated as of July 2, 2009 (the “Registration Rights Acknowledgement”), pursuant to which the Issuer acknowledged that the Registration Rights Agreement as disclosed in the Issuer’s Current Report on Form 8-K filed with the Securities and Exchange Commission on October 14, 2008 is also applicable to the shares underlying the Warrants.

The descriptions in the Statement of the Agreement, the Warrant Agreement and the Registration Rights Acknowledgement are qualified in their entirety by reference to the full text of such agreements, copies of which are filed herewith and incorporated by reference in the Statement.

Except as described herein, the Reporting Persons do not as of the date of the Statement have any specific plans or proposals that relate to or would result in any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.

CUSIP No: 65337Y102

Item 5. Interest in Securities of the Issuer.

(a) As of the date hereof, the following is the beneficial ownership and percentage of the Issuer’s Common Stock outstanding for each of the Reporting Persons:

Name	Number of Shares	Percentage of Class (%)

Avenue Capital Management II	63,106,900	38.0
GenPar	63,106,900	38.0
Marc Lasry	63,106,900	38.0
Avenue Spec IV	4,212,733	3.9
Avenue Capital IV	4,212,733	3.9
GL IV	4,212,733	3.9
Avenue Investments	3,659,450	3.4
Avenue Partners	3,659,450	3.4
Avenue International	7,674,019	6.9
Avenue International GenPar	7,674,019	6.9
CDP Global	2,391,664	2.3
CDP Global GenPar	2,391,664	2.3
Avenue AIV	45,000,000	30.4
Avenue AIV GenPar	45,000,000	30.4
Avenue Spec V	169,035	0.2
Avenue Capital V	169,035	0.2
GL V	169,035	0.2

The percentage of class is calculated based on 103,091,858 shares of Common Stock outstanding as of April 30, 2009, as calculated for each Reporting Person pursuant to Rule 13d-3(d)(1)(i) of the Securities Exchange Act of 1934, as amended.

(b) The Reporting Persons have sole power to vote or direct the vote and sole power to dispose or to direct the disposition of the Shares.

(c) Robert T. Symington, an employee of Avenue Capital Management II and a director of the Issuer was granted 166,999 options by the Issuer on June 11, 2009. Pursuant to an agreement between Mr. Symington and Avenue Capital Management II, any compensation received by Mr. Symington as a director of the Issuer shall be for the benefit of the Funds. In addition, on July 1, 2009, Avenue Spec IV exercised warrants to purchase 1,796,237 shares of Common Stock, and Avenue Investments exercised warrants to purchase 139,753 shares of Common Stock. The Issuer withheld 42,685 and 3,321 shares of Common Stock, representing the exercise price for the exercise of warrants by Avenue Spec IV and Avenue Investments, respectively.

Except as described above and herein, the Reporting Persons have not engaged in any transactions with respect to the Issuer’s Common Stock in the past 60 days.

(d) No person other than the Reporting Persons is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale, of the shares of Common Stock covered by the Statement.

(e) Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

The responses to Item 4 and Item 5 are incorporated herein by reference. Except as set forth in response to other Items of the Statement and the agreements incorporated herein by reference and

CUSIP No: 65337Y102

set forth as exhibits hereto, to the best knowledge of the Reporting Persons, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among the Reporting Persons and between such persons and any person with respect to any securities of the Issuer, including but not limited to, transfer or voting of any of the securities of the Issuer, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, or a pledge or contingency the occurrence of which would give another person voting power over the securities of the Issuer.

Item 7. Material to be Filed as Exhibits.

Exhibit 1		Joint Filing Agreement, dated November 13, 2008 among the Reporting Persons relating to the filing of a joint statement on Schedule 13D (incorporated by reference to Exhibit 1 filed with the Reporting Persons’ Schedule 13D on November 19, 2008).

Exhibit 2		Second Lien Subordinated Note Purchase Agreement, dated October 9, 2008, among NextWave Wireless Inc., NextWave Wireless LLC, as issuer, NextWave Broadband Inc., NW Spectrum Co., AWS Wireless Inc., WCS Wireless License Subsidiary, LLC, IP Wireless, Inc., and Packetvideo Corporation, as guarantors, Avenue AIV US, L.P. and Sola Ltd, as the note purchasers, and The Bank of New York Mellon, as collateral agent (incorporated by reference to Exhibit 4.1 filed with the Issuer’s Quarterly Report on Form 10-Q filed with the SEC on November 7, 2008).

Exhibit 3		Warrant Agreement dated as of October 9, 2008, between Avenue AIV US, L.P. and NextWave Wireless Inc., (incorporated by reference to Exhibit 4.3 filed with the Issuer’s Quarterly Report on Form 10-Q filed with the SEC on November 7, 2008).

Exhibit 4		Designated Director Agreement dated as of October 9, 2008, between Avenue Capital II and NextWave Wireless Inc., (incorporated by reference to Exhibit 4.7 filed with the Issuer’s Quarterly Report on Form 10-Q filed with the SEC on November 7, 2008).

Exhibit 5		Third Lien Subordinated Exchange Note Exchange Agreement, dated October 9, 2008, among NextWave Wireless Inc., NextWave LLC, certain subsidiary guarantors, the purchasers party thereto, and The Bank of New York Mellon, as collateral agent (incorporated by reference to Exhibit 4.2 filed with the Issuer’s Quarterly Report on Form 10-Q filed with the SEC on November 7, 2008).

Exhibit 6		Registration Rights Agreement dated as of October 9, 2008, among NextWave Wireless Inc., Avenue AIV US, L.P. and Sola, Ltd. (incorporated by reference to Exhibit 4.5 filed with the Issuer’s Quarterly Report on Form 10-Q filed with the SEC on November 7, 2008).

Exhibit 7		Additional Warrant Agreement dated as of April 8, 2009, between Avenue AIV US, L.P. and NextWave Wireless Inc. (incorporated by reference to Exhibit 4.14 filed with the Issuer’s Current Report on Form 8-K filed with the SEC on April 14, 2009).

Exhibit 8		Second Lien Incremental Indebtedness Agreement, dated July 2, 2009, among NextWave Wireless Inc. as parent guarantor, NextWave Wireless LLC, as issuer,

CUSIP No: 65337Y102

		NextWave Broadband Inc., NW Spectrum Co., AWS Wireless Inc., WCS Wireless License Subsidiary, LLC, as guarantors, Avenue AIV US, L.P, as the note purchaser, and The Bank of New York Mellon, as collateral agent.

Exhibit 9		Warrant Agreement dated as of July 2, 2009, between Avenue AIV US, L.P. and NextWave Wireless Inc.

Exhibit 10		Registration Rights Agreement Acknowledgement, dated as of July 2, 2009, entered into by NextWave Wireless Inc.

CUSIP No: 65337Y102

SIGNATURE

After reasonable inquiry and to the best of our knowledge and belief, we certify that the information set forth in this Amendment is true, complete and correct.

Dated: July 10, 2009

	MARC LASRY


	/s/ Marc Lasry


	AVENUE CAPITAL MANAGEMENT II GENPAR, LLC


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Managing Member


	AVENUE CAPITAL MANAGEMENT II, L.P.

	By:	Avenue Capital Management II
		GenPar, LLC,
		its General Partner


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Managing Member


	AVENUE SPECIAL SITUATIONS FUND IV, L.P.

	By:	Avenue Capital Partners IV, LLC,
		its General Partner

	By:	GL Partners IV, LLC,
		its Managing Member


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Managing Member

CUSIP No: 65337Y102

	AVENUE CAPITAL PARTNERS IV, LLC

	By:	GL Partners IV, LLC,
		its Managing Member


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Managing Member

	GL PARTNERS IV, LLC


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Managing Member

	AVENUE INVESTMENTS, L.P.

	By:	Avenue Partners, LLC,
		its General Partner


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Managing Member

	AVENUE PARTNERS, LLC


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Managing Member

	AVENUE INTERNATIONAL MASTER, L.P.

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


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Director

CUSIP No: 65337Y102

	AVENUE INTERNATIONAL MASTER FUND GENPAR, LTD.


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Director


	AVENUE - CDP GLOBAL OPPORTUNITIES FUND, L.P.


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


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Managing Member


	AVENUE GLOBAL OPPORTUNITIES FUND GENPAR, LLC


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Managing Member


	AVENUE AIV US, L.P.


	By:	Avenue AIV US GenPar, LLC
		its General Partner


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Managing Member

	AVENUE AIV US GENPAR, LLC


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Managing Member

CUSIP No: 65337Y102

	AVENUE SPECIAL SITUATIONS FUND V, L.P.

	By:	Avenue Capital Partners V, LLC,
		its General Partner

	By:	GL Partners V, LLC,
		its Managing Member


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Managing Member


	AVENUE CAPITAL PARTNERS V, LLC

	By:	GL Partners V, LLC,
		its Managing Member


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Managing Member


	GL PARTNERS V, LLC


	By:	/s/ Marc Lasry
		Name: Marc Lasry
		Title: Managing Member

EX-8 2 a09-17570_2ex8.htm EX-8

Exhibit 8

SECOND LIEN INCREMENTAL INDEBTEDNESS AGREEMENT

THIS SECOND LIEN INCREMENTAL INDEBTEDNESS AGREEMENT is dated as of July 2, 2009 (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 Second Lien Subordinated Note Purchase Agreement dated as of October 9, 2008 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Second Lien Purchase Agreement”; capitalized terms used, but not defined herein, shall have the respective meanings ascribed thereto in the Second Lien Purchase Agreement), by and among Company, Parent, the guarantors party thereto from time to time, the purchasers listed therein and The Bank of New York Mellon, as Collateral Agent;

WHEREAS, Section 1.1 of the Second Lien Purchase Agreement permits Company, so long as no Secured Working Capital Line exists, to issue from time to time up to $25,000,000 aggregate Stated Value of Notes at the agreed purchase price set forth in connection with such issuance on a supplemental Schedule 1.2A to the Second Lien Purchase Agreement, with such original issue discount as is described therein (“Incremental Indebtedness”);

WHEREAS, Company desires to exercise its right under Section 1.1 of the Second Lien Purchase Agreement to issue $15,000,000 aggregate Stated Value of Senior-Subordinated Secured Second Lien Notes each substantially in the form attached to the Second Lien Purchase Agreement as Exhibit A (each, an “Incremental Indebtedness Note” and collectively, the “Incremental Indebtedness Notes”) evidencing such Incremental Indebtedness to the Purchasers;

WHEREAS, each Purchaser has agreed to purchase the Incremental Indebtedness Notes on the terms and subject to the conditions set forth in this Agreement;

WHEREAS, pursuant to Section 1.1 of the Second Lien Purchase Agreement, each Holder and each Note Party have previously consented to any modifications to the Second Lien Purchase Agreement necessary to reflect the issuance of Incremental Indebtedness 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 Incremental Indebtedness Notes. On the date hereof, Company will issue to the Purchasers the Incremental Indebtedness Notes at the purchase price set forth on Supplemental Schedule 1.2A, which shall supplement the existing Schedule 1.2A to

the Second Lien Purchase Agreement, with the original issue discount as described below. Company will promptly pay or cause to be paid the Principal Amount of, premium, if any, and interest on the Incremental Indebtedness Notes on the dates and in the manner provided in the Incremental Indebtedness Notes, and in accordance with the terms of the Second Lien Purchase Agreement and the Intercreditor Agreement. For the avoidance of doubt, the Note Parties’ obligations under the Second 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 Second 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 Incremental Indebtedness Notes; Issuance of Warrants.

(a) In reliance upon the Purchasers’ several representations made in Section 1.4 of the Second Lien Purchase Agreement that are hereby being made in this Agreement with respect to the Incremental Indebtedness Notes as of the Effective 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 Incremental Indebtedness 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 Incremental Indebtedness Notes from Company as described in Section 2(b). Having considered all facts relevant to a determination of the value of the Incremental Indebtedness Notes being acquired by the Purchasers on the Effective Date, Company and the Purchasers have concluded and do hereby agree that, within the meaning of Section 1273 of the Code, the issue price for each Incremental Indebtedness Note is as set forth in Supplemental Schedule 1.2A. The parties hereto recognize that this Agreement creates original issue discount as set forth in Supplemental Schedule 1.2A to be taken into account by each Purchaser and Company for United States federal income tax purposes on the respective Incremental Indebtedness Notes, and they agree to adhere to this Agreement for such purposes and not to take any action inconsistent herewith. The inclusion of the foregoing provisions is not an admission by any Purchaser that it is subject to United States taxation.

(b) The sale and purchase of the Incremental Indebtedness Notes will take place on the Effective Date at the offices of O’Melveny & Myers LLP at Seven Times Square, New York, NY 10036. On the Effective Date, Company will, subject to the terms and conditions set forth in this Agreement, deliver to each Purchaser the Stated Value of the Incremental Indebtedness 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.

(c) On the Effective Date, Parent shall, subject to the terms and conditions set forth in this Agreement and the other Note Documents, issue to each Purchaser (or, at the direction of any Purchaser, to any assignee of such Purchaser’s rights under this Section 2(c)) a Warrant exercisable for the number of the Warrant Shares set forth with respect to such

Purchaser on Supplemental Schedule 1.2A, and the Purchasers shall acquire the Warrants in reliance upon the representations and warranties of Company, Parent and the Guarantors contained in this Agreement and the other Note Documents, and subject to the terms and conditions set forth herein and therein. As used herein, “Warrants” means warrants in substantially the form of Exhibit A to the Warrant Agreement (as defined below) to acquire an aggregate number of seven million five hundred thousand (7,500,000) shares of Common Stock (the “Warrant Shares”) at an exercise price of $0.01 per Warrant Share.

3. Second Lien Purchase Agreement Governs. Except as set forth in this Agreement, the Incremental Indebtedness Notes are issued pursuant to the Second Lien Purchase Agreement and shall otherwise be subject to the provisions of the Second Lien Purchase Agreement and the other Note Documents (including, without limitation, that each Incremental Indebtedness Note (i) shall constitute a “Note” under the Second Lien Purchase Agreement, (ii) will at all times be secured pursuant to the Collateral Documents and guarantied by the Guarantors in accordance with the terms of the Second Lien Purchase Agreement, (iii) shall have interest payable at a rate and on terms set forth in such Incremental Indebtedness Note and the Second Lien Purchase Agreement, (iv) shall have the same maturity date as the other Notes under the Second 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 Second Lien Purchase Agreement and such Incremental Indebtedness Note). This Agreement shall supplement and modify the Second Lien Purchase Agreement as provided herein and shall constitute a “Note Document” under the Second Lien Purchase Agreement. Accordingly, it shall have been and shall be an Event of Default under the Second Lien Purchase Agreement if any representation or warranty made by Company, Parent or any Guarantor under or in connection with this Agreement or the Second Lien Purchase Agreement or any other Note Documents shall have been false, incorrect, breached or misleading in any material respect when made or furnished. With respect to the issuance of the Incremental Indebtedness Notes, the reference to the Closing in the definition of “Principal Amount” contained in the Second Lien Purchase Agreement shall refer to the Effective Date. Each Warrant shall constitute a “Warrant” under the Second Lien Purchase Agreement, the Warrant Agreement shall constitute a “Warrant Agreement” under the Second Lien Purchase Agreement, and the Warrant Shares shall constitute “Warrant Shares” under the Second Lien Purchase Agreement.

4. Conditions to Effectiveness. Sections 1, 2 and 3 of this Agreement shall become effective only upon the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “Effective Date”):

(a) On or before the Effective Date, Company, Parent and Guarantors shall deliver to the Purchasers the following, each, unless otherwise noted, dated the Effective Date:

i. copies of all amendments to the Organizational Documents of such Person executed on or after October 9, 2008, 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 Effective 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, the Warrants, the Warrant Agreement (as defined below), and the Registration Rights Agreement Acknowledgment (as defined below) and approving and authorizing the execution, delivery and payment of the Incremental Indebtedness Notes, certified as of the Effective 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, the Incremental Indebtedness Notes, the Warrants, the Warrant Agreement (as defined below) and the Registration Rights Agreement Acknowledgment (as defined below); and

iv. executed copies of this Agreement, the Incremental Indebtedness Notes, the Warrants, the warrant agreement substantially in the form of an Additional Warrant Agreement except with respect to the issuance date, the warrant holder and the Warrant Shares to be issued thereunder (the “Warrant Agreement”), and Parent’s acknowledgment to the Registration Rights Agreement relating to the issuance of the Warrants and the Warrant Shares (the “Registration Rights Agreement Acknowledgment”).

(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 Effective Date, with respect to the enforceability of the Incremental Indebtedness Notes and the other Notes, Warrants, Warrant Agreement, this Agreement, Modified Agreement (as hereinafter defined) and as to such other matters as the Purchasers and the Collateral Agent may reasonably request.

(c) On or before the Effective 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 First Lien Documents) shall have occurred and be continuing under the First 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) The Purchasers shall have received a Solvency Certificate from Company and Parent dated as of the Effective Date and addressed to the Purchasers and the Collateral Agent, and in form, scope and substance satisfactory to the Purchasers, with appropriate attachments and demonstrating that after giving effect to the consummation of the transactions contemplated by this Agreement, Company and Parent, each individually, and Parent and its Subsidiaries, taken as a whole on a consolidated basis, are, and will be Solvent.

(f) The Purchasers and the Collateral Agent shall have received a copy of an opinion rendered to the Board of Directors of Parent from Canaccord Adams Inc., stating that the economic terms of the Incremental Indebtedness Notes, pursuant to the terms of this Agreement, are fair to Parent from a financial point of view.

(g) The Purchasers and the Collateral Agent shall have received a copy of an opinion from Valuation Research Company rendered to the Finance Committee of the Board of Directors of Parent, in form, scope and substance satisfactory to the Purchasers and the Collateral Agent, with appropriate attachments, demonstrating that after giving effect to the consummation of the transactions contemplated under this Agreement, Company and Parent, each individually, and Parent and its Subsidiaries, taken as a whole on a consolidated basis, are, and will be Solvent.

(h) 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 Effective 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. Company’s 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) Corporate Power and Authority. Company has all requisite corporate power and authority to enter into this Agreement and to issue and deliver the Incremental Indebtedness Notes, Parent has all requisite corporate power and authority to enter into this Agreement, the Warrants, the Warrant Agreement and the Registration Rights Agreement Acknowledgment, and each of Company and Parent has requisite corporate power and authority to carry out the transactions contemplated by, and perform its obligations under, this Agreement, the Second Lien Purchase Agreement as modified by this Agreement (the “Modified Agreement”), the Incremental Indebtedness Notes, the Warrants, the Warrant Agreement and the Registration Rights Agreement Acknowledgment.

(b) Authorization of Agreements. The execution and delivery of this Agreement, the Warrants, the Warrant Agreement and the Registration Rights Agreement Acknowledgment, and the performance of this Agreement, the Modified Agreement, the

Warrants, the Warrant Agreement and the Registration Rights Agreement, as modified by the Registration Rights Agreement Acknowledgment, and the issuance, delivery and payment of the Incremental Indebtedness 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 Incremental Indebtedness Notes, the Warrants, the Warrant Agreement and the Registration Rights Agreement Acknowledgment, and the performance of this Agreement, the Modified Agreement, the Warrants, the Warrant Agreement and the Registration Rights Agreement, as modified by the Registration Rights Agreement Acknowledgment, and the issuance, delivery and payment of the Incremental Indebtedness 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 Incremental Indebtedness Notes, the Warrants, the Warrant Agreement and the Registration Rights Agreement Acknowledgment, and the performance by Company and Parent of this Agreement, the Modified Agreement, the Warrants, the Warrant Agreement and the Registration Rights Agreement, as modified by the Registration Rights Agreement Acknowledgment, and the issuance, delivery and payment of the Incremental Indebtedness 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, the Warrants, the Warrant Agreement and the Registration Rights Agreement Acknowledgment have been duly executed and delivered by Company, Parent and the Guarantors and this Agreement, the Modified Agreement, the Warrants, the Warrant Agreement and the Registration Rights Agreement Acknowledgment 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 Incremental Indebtedness 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 Second Lien Purchase Agreement. The representations and warranties contained in Article IV of the Second Lien Purchase Agreement are and will be true, correct and complete in all material respects on and as of the Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete in all material respects on and as of such earlier date; provided that Schedules 4.3, 4.8, 4.13, 4.14, 4.18, 4.21 and 4.26 attached hereto and the representations and warranties relating to Schedules 4.3, 4.8, 4.13, 4.14, 4.18, 4.21 and 4.26 delivered in connection with the Second Lien Purchase Agreement are and will be true, correct and complete in all material respects on and as of the Effective Date.

(g) 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.

(h) Secured Working Capital Line. No Secured Working Capital Line exists.

(i) Performance of Agreements. Company, Parent and each Guarantor has performed in all material respects all agreements and satisfied all conditions which the Second Lien Purchase Agreement provides shall be performed or satisfied by it on or before the date hereof.

(j) Investment Company Act. Neither the Company nor any of its Subsidiaries is or, immediately after receipt of payment for the Incremental Indebtedness Notes and the consummation of the transactions contemplated under this Agreement, the Incremental Indebtedness Notes, the Warrants, the Warrant Agreement, and the Registration Rights Agreement Acknowledgment, will be an “investment company” registered or required to be registered under the Investment Company Act of 1940, as amended.

(k) Consummated Asset Sales. The FCC Licenses set forth on Schedule 5(k) hereto have been sold by the Company or its applicable Subsidiary since October 9, 2008 and all of the Net Proceeds thereof have been deposited in the Asset Sale Proceeds Account and applied to satisfy, in part, the First Lien Obligations in accordance with the terms of the First Lien Documents.

(l) Pending Asset Sales. Since October 9, 2008, the Company or its applicable Subsidiary has entered into definitive and binding agreements to sell the FCC Licenses set forth on Schedule 5(l) hereto, and the consummation of such sales is subject solely to the satisfaction of the closing conditions set forth in the applicable definitive and binding agreements.

6. Acknowledgment and Consent. 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 Guaranties 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 Effective 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 Incremental Indebtedness Notes, the Warrants, the Warrant Agreement, the Registration Rights Agreement Acknowledgment 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 are true, correct and complete in all material respects on and as of the Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete in all material respects on and as of such earlier date.

7. Miscellaneous.

(a) Reference to and Effect on the Second 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 Second 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 Effective Date (A) all references in the Second Lien Purchase Agreement to “this Agreement,” “hereto,” “hereof,” “hereunder” or words of like import referring to the Second Lien Purchase Agreement shall mean the Second Lien Purchase Agreement as modified by this Agreement and (B) all references in the other Note Documents to the “Second Lien Purchase Agreement,” “thereto,” “thereof,” “thereunder” or words of like import referring to the Second Lien Purchase Agreement shall mean the Second Lien Purchase Agreement as modified by this Agreement, (ii) to the extent that the Second 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 Second 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 Second Lien Purchase Agreement or any other Note Document, nor constitute an amendment or modification of any provision of the Second 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 Second 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 1.5 of the Second 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 SECOND 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 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 and the Purchasers each acknowledge that this waiver is a material inducement for Company, the Guarantors 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 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 Incremental Indebtedness Notes. Upon execution and delivery hereof, Company will record each Incremental Indebtedness Note in the Register.

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 Second 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 Second 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 Second 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.

[Remainder of page intentionally left blank]

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 AIV US, L.P.
	By: Avenue AIV US Genpar, LLC, its General Partner


	By:	/s/ Sonia Gardner
		Name: Sonia Gardner
		Title: President and Managing Partner

	COMPANY:

	NEXTWAVE WIRELESS LLC


	By:	/s/ Frank A Cassou
		Name: Frank A. Cassou
		Title: Secretary


	PARENT and GUARANTOR:

	NEXTWAVE WIRELESS INC.


	By:	/s/ Frank A Cassou
		Name: Frank A. Cassou
		Title: Executive Vice President and Secretary

	GUARANTORS:

	NEXTWAVE BROADBAND INC.


	By:	/s/ Frank A Cassou
		Name: Frank A. Cassou
		Title: Secretary

	NW SPECTRUM CO.


	By:	/s/ Frank A Cassou
		Name: Frank A. Cassou
		Title: Secretary

	AWS WIRELESS INC.


	By:	/s/ Frank A Cassou
		Name: Frank A. Cassou
		Title: Secretary

	WCS WIRELESS LICENSE SUBSIDIARY, LLC


	By:	/s/ Frank A Cassou
		Name: Frank A. Cassou
		Title: Secretary

Acknowledged by (pursuant to Section 14 above):

THE BANK OF NEW YORK MELLON,
as Collateral Agent

By:	/s/ Melinda Valentine
Name: Melinda Valentine
Title: Vice President

Supplemental Schedule 1.2A

Purchasers and Issue Price

Notes issued on July 2, 2009 (evidencing Incremental Indebtedness)

Purchasers	Principal Amount of Notes Purchased		Warrant Shares	Total Issue Price		Note Price		Warrant Price
Avenue AIV US, L.P.	$	15,000,000.00	7,500,000	$	14,250,000.00	$	10,500,000	$	3,750,000
Total	$	15,000,000.00	7,500,000	$	14,250,000.00	$	10,500,000	$	3,750,000

EX-9 3 a09-17570_2ex9.htm EX-9

Exhibit 9

WARRANT AGREEMENT

Dated as of July 2, 2009

among

NEXTWAVE WIRELESS INC.

and

THE INITIAL HOLDERS
LISTED ON SCHEDULE I HERETO

ARTICLE I	DEFINITIONS	1

1.1	Definitions	1

1.2	Rules of Construction	5

ARTICLE II	ISSUANCE OF WARRANTS AND RESERVATION OF WARRANT SHARES	5

2.1	Issuance of Warrants to Initial Holders; Warrant Agreement	5

2.2	Reservation of Warrant Shares	5

ARTICLE III	CERTAIN ADMINISTRATIVE PROVISIONS	6

3.1	Form of Warrant; Register	6

3.2	Exchange of Warrants for Warrants	6

3.3	Mechanics of Transfer of Warrants	7

ARTICLE IV	EXERCISE OF WARRANT; EXCHANGE FOR WARRANT SHARES	7

4.1	Exercise of Warrants; Expiration	7

4.2	Exchange for Warrant Shares	8

4.3	Issuance of Warrant Shares	8

ARTICLE V	ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES	10

5.1	General	10

5.2	Distributions, Subdivisions and Combinations	10

5.3	Issuance of Shares of Common Stock	11

5.4	Distributions of Assets or Securities Other than Common Stock	14

5.5	Capital Reorganization, Capital Reclassifications, Merger, Etc	14

5.6	Above Market Purchases of Securities	15

5.7	Other Actions Affecting Equity Securities	16

5.8	Reserved	16

5.9	Miscellaneous	16

ARTICLE VI	COVENANTS OF THE ISSUER	17

6.1	Notices of Certain Actions	17

6.2	Merger and Consolidation of the Issuer	18

6.3	Dividends; Distributions	18

6.4	No Avoidance	19

6.5	Preemptive Rights	19

6.6	Sale of Warrants	20

ARTICLE VII	MISCELLANEOUS	21

7.1	Notices	21

7.2	No Voting Rights; Limitation of Liability	21

7.3	Amendments and Waivers	22

7.4	Remedies	22

7.5	Binding Effect	22

7.6	Counterparts	22

7.7	Governing Law; Jurisdiction and Venue	23

7.8	Waiver of Jury Trial	23

7.9	Benefits of this Agreement	24

7.10	Headings	24

7.11	Aggregation of Warrants and Warrant Shares	24

7.12	Operative Date	24

Schedule I		-		Initial Holders
Exhibit A		-		Form of Warrant

WARRANT AGREEMENT dated as of July 2, 2009, between the Initial Holders listed on Schedule I hereto (the “Initial Holders”) and NEXTWAVE WIRELESS INC., a Delaware corporation (the “Issuer”).

The Issuer has entered into (a) that certain Second Lien Subordinated Note Purchase Agreement, dated as of October 9, 2008, with the Initial Holders and other parties named therein (as amended, restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”) pursuant to which NextWave Wireless LLC, a wholly owned subsidiary of the Issuer (“Company”) has issued $105,263,157 initial principal amount of Senior-Subordinated Secured Second Lien Notes and (b) that certain Second Lien Incremental Indebtedness Agreement, dated as of July 2, 2009, with the Initial Holders and other parties named therein (as amended, restated, supplemented or otherwise modified from time to time, the “Incremental Indebtedness Agreement”). Pursuant to the Incremental Indebtedness Agreement and the Purchase Agreement, Company has issued to the Initial Holders $15,000,000 initial principal amount of Senior-Subordinated Secured Second Lien Notes (the “Incremental Indebtedness Notes”). As a condition to the Initial Holders’ agreement to purchase the Incremental Indebtedness Notes, the Issuer has agreed, pursuant to Section 2(c) of the Incremental Indebtedness Agreement to issue to the Initial Holders Warrants (as hereinafter defined), with an initial exercise price of $0.01 per share (subject to adjustment as provided herein), to purchase in the aggregate seven million five hundred thousand (7,500,000) shares (subject to adjustment as provided herein) of Common Stock (as hereinafter defined). This Agreement sets forth terms and conditions applicable to the Warrants.

NOW, THEREFORE, the parties to this Agreement hereby agree as set forth below.

ARTICLE I
DEFINITIONS

1.1 Definitions.

(a) Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Purchase Agreement or the Incremental Indebtedness Agreement.

(b) The following terms shall have the meanings set forth below.

“Agreement” shall mean this Agreement, together with all schedules and exhibits attached hereto, as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof.

“Assignment Form” means the assignment form attached as Annex C to a Warrant.

“Board” means the board of directors of the Issuer.

“Cash” means money, currency or a credit balance in a demand deposit account.

“Common Stock” means the common stock of the Issuer, par value $.001 per share.

“Convertible Securities” means any Capital Stock, evidence of Indebtedness or other Securities or rights convertible into or exchangeable for shares of Common Stock (including the Warrants).

“Delivery Date” has the meaning given to such term in Section 4.3(a).

“Determination Date” has the meaning given to such term in Section 5.6.

“Distribution” means, in respect of any Person, (a) the payment or making of any dividend or other distribution of Property in respect of Capital Stock of such Person or (b) the redemption or other acquisition of any Capital Stock of such Person.

“Equity Securities” has the meaning given to such term in Section 6.5(a).

“Exchange Form” means the exchange form attached as Annex B to a Warrant.

“Exchange Number” has the meaning given to such term in Section 4.2.

“Exercise Form” means the exercise form attached as Annex A to a Warrant.

“Exercise Price” means $0.01 per Warrant Share, subject to change from time to time in the manner provided in Article V.

“Expiration Time” means 11:59 p.m., Eastern daylight time, on the Business Day immediately prior to the three-year anniversary date of this Agreement, subject to extension pursuant to Section 4.3(g).

“Fair Market Value” means the fair market value of such Property or Security as determined by the Board in the good faith exercise of its reasonable business judgment; provided, however, that Holders of at least two-thirds of the Warrants objects to such determination by the Board by delivery of written notice to the Issuer within thirty days of the date of determination, the Issuer and such Holders shall, within the thirty days after the delivery of such notice, attempt in good faith to resolve the objection. If the Issuer and such Holders are unable to resolve the objection within the time period provided, the matter shall be arbitrated by Houlihan, Lokey Howard & Zukin Financial Advisors, Inc. or another independent financial advisor to be agreed upon by the Issuer and the Holders (the “Independent Auditor”). The determination of the fair market value of such Property or Security by the Independent Auditor shall be final, binding and non-appealable. The Issuer and the Holders shall instruct the Independent Auditor to render its decision within thirty days of its selection. The fees and expenses of the Independent Auditor shall be shared in the same proportion that the Issuer’s position, on the one hand, and the Holders’ position on the other hand, initially presented to the Independent Auditor (based on the aggregate of all differences taken as a whole) bear to the final resolution as determined by the Independent Auditor. Notwithstanding the foregoing, if such Security is Publicly Traded or quoted at the time of determination, the fair market value of such Security shall be the (x) in the case of Fair Market Value calculations identified herein as

“single-day Fair Market Value”, the closing trading price of such security as of the trading day immediately prior to the date of determination and (y) in all other cases, average closing trading price of such Security for the prior twenty trading days immediately prior to the date of determination.

“Fully Diluted Basis” means, with respect to the Common Stock at any time of determination, the number of shares of Common Stock that would be issued and outstanding at such time, assuming full conversion, exercise and exchange of all issued and outstanding Convertible Securities and Options that shall be (or may become) exchangeable for, or exercisable or convertible into, Common Stock, including the exercise of the Warrant and the conversion of the Warrant Shares, except that the number of shares of Common Stock outstanding on a Fully Diluted Basis shall not include the number of shares of Common Stock issuable upon exercise, conversion or exchange of Options or Convertible Securities that, at the time of determination, are Out of the Money.

“Governing Documents” means as to any Person, its articles or certificate of incorporation and by-laws, its partnership agreement, its certificate of formation and operating agreement and/or the other organizational or governing documents of such Person.

“Holder” means with respect to any Warrant, the holder of such Warrant as set forth in the Warrant Register. Unless the context otherwise requires, “Holder” includes a holder of Warrant Shares.

“Initial Holders” has the meaning set forth in the caption.

“Issuer” has the meaning set forth in the caption.

“Options” means any warrants, options or other rights to subscribe for or to purchase (a) shares of Common Stock or (b) Convertible Securities.

“Other Equity Documents” means the (a) the Warrant, (b) the Purchase Agreement, (c) the Incremental Indebtedness Agreement, and (d) the Registration Rights Agreement dated as of October 9, 2008 by and among the Issuer, the Initial Holders and other parties, as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Other Equity Securities” means any Capital Stock, other than the Common Stock, Convertible Securities or Options.

“Out of the Money” means, at any date of determination (a) in the case of an Option, that the aggregate single-day Fair Market Value of the shares of Common Stock issuable upon the exercise of such Option as of such date is less than the aggregate exercise price payable upon such exercise and (b) in the case of a Convertible Security, that the quotient resulting from dividing the consideration payable to convert any such Convertible Security (including without limitation, the value, if any, of such Convertible Security relinquished as a result of such conversion) as of such date by the number of shares issuable as of such date upon conversion or exchange of such Convertible Security is greater than the Fair Market Value of one share of Common Stock.

“Previous Adjustment” has the meaning given to such term in Section 5.3(b)(iii).

“Property” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

“Public Market Issuance” shall mean a firm commitment, fully underwritten public offering primarily in the United States of the Issuer’s Common Stock by a nationally recognized investment banking firm with gross proceeds to the Issuer of not less than $200 million, with the Common Stock so offered listed on either the New York Stock Exchange or the Nasdaq National Market.

“Public Offering” means the public offering of Capital Stock of a Person (other than an offering of Securities issuable pursuant to an employee benefit plan) pursuant to a registration statement declared effective under the Securities Act.

“Publicly Traded” means, with respect to any Security, that such Security is (a) listed on a domestic securities exchange, (b) quoted on the Nasdaq National Market or the Nasdaq Small-Cap Market or (c) traded in the domestic over-the-counter market, which trades are reported by the National Quotation Bureau, Incorporated or a similar successor organization.

“Purchase Agreement” has the meaning given to such term in the preamble.

“Repurchase” has the meaning given to such term in Section 5.6.

“Repurchase Premium” has the meaning given to such term in Section 5.6.

“Requisite Holders” means, as of any date of determination, Holders holding Warrants or Warrant Shares representing at least a majority of the Warrant Shares that are either (a) previously issued and are then outstanding or (b) issuable upon exercise of Warrants then outstanding; provided that any Warrants or Warrant Shares held by the Issuer or its Affiliates shall not be counted in either the numerator or the denominator of the calculation of Requisite Holders. For the purpose of any matter applicable only to Warrants and not Warrant Shares, “Requisite Holders” will be determined based on Holders of Warrants and not Warrant Shares.

“Transfer” means any sale, transfer, assignment, or other disposition of any interest in, with or without consideration, any security, including any disposition of any security or of any interest therein which would constitute a sale thereof within the meaning of the Securities Act.

“Warrant” has the meaning given to such term in Section 3.1(a).

“Warrant Register” has the meaning given to such term in Section 3.1(b).

“Warrant Shares” has the meaning set forth in a Warrant.

1.2 Rules of Construction.

The definitions in Section 1.1 shall apply equally to the singular and plural forms of the terms defined. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The words “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole, including the schedules and exhibits, as the same may from time to time be amended, restated, supplemented or otherwise modified, and not to any particular section, subsection, paragraph, subparagraph or clause contained in this Agreement. All references to sections, schedules and exhibits mean the sections of this Agreement and the schedules and exhibits attached to this Agreement, except where otherwise stated. The title of and the section and paragraph headings in this Agreement are for convenience of reference only and shall not govern or affect the interpretation of any of the terms or provisions of this Agreement. The use herein of the masculine, feminine or neuter forms shall also denote the other forms, as in each case the context may require. Where specific language is used to clarify by example a general statement contained herein, such specific language shall not be deemed to modify, limit or restrict in any manner the construction of the general statement to which it relates. Any reference to any term contained in any other agreement or other document shall be deemed to be a reference to such term in the applicable agreement or document as in effect as of the date hereof, unless the Requisite Holders have consented to any amendment of such applicable agreement since the date hereof, in which case such reference shall be deemed to be a reference to such term in the applicable agreement or document, as amended through the date of the most recent consent by the Requisite Holders. The language used in this Agreement has been chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against any party.

ARTICLE II
ISSUANCE OF WARRANTS AND RESERVATION OF WARRANT SHARES

2.1 Issuance of Warrants to Initial Holders; Warrant Agreement.

Pursuant to the Incremental Indebtedness Agreement, the Issuer shall issue and deliver Warrants, dated as of the date hereof, to the Initial Holders in accordance with the Incremental Indebtedness Agreement. The provisions of this Agreement shall apply to all Warrants (and, to the extent applicable, Warrant Shares), and each Holder that is not a party to this Agreement, by its acceptance of a Warrant or a Warrant Share, agrees to be bound by the applicable provisions hereof.

2.2 Reservation of Warrant Shares.

From and after the date hereof, the Issuer shall at all times have authorized, and reserve and keep available, free from preemptive or similar rights, for the purpose of enabling it to satisfy any obligation to issue Warrant Shares upon the exercise or exchange of each Warrant, the number of authorized but unissued Warrant Shares issuable upon exercise or exchange of all outstanding Warrants. The Issuer shall promptly take all actions necessary to ensure that Warrant Shares shall be duly authorized and, when issued upon exercise or exchange of any Warrant in accordance with the terms hereof, shall be validly issued, fully paid and non-

assessable, free and clear of all Taxes, Liens (except to the extent of any applicable provisions of this Agreement or any Other Equity Document) and all preemptive or similar rights.

ARTICLE III
CERTAIN ADMINISTRATIVE PROVISIONS

3.1 Form of Warrant; Register.

(a) Each Warrant issued under the Incremental Indebtedness Agreement or hereunder shall be in the form of Exhibit A attached hereto (each, a “Warrant”) and shall be executed on behalf of the Issuer by a Responsible Officer of the Issuer. Each Warrant shall bear the legend(s) appearing on the first page of such form, except that a Warrant need not bear any such legend from and after such time as all the restrictions to which such legend relates no longer apply. Upon initial issuance, each Warrant shall be dated as of the date of signature thereof by the Issuer. Irrespective of any adjustments in the Exercise Price or the number or kind of Capital Stock or other Property issuable upon the exercise of the Warrants, any Warrants theretofore or thereafter issued may, as a matter of form, continue to express the same Exercise Price and the same number of Warrant Shares issuable upon the exercise of such Warrants as were stated in the Warrants initially issued pursuant the Incremental Indebtedness Agreement.

(b) Each Warrant issued, exchanged or Transferred hereunder shall be registered in a warrant register (the “Warrant Register”). The Warrant Register shall set forth (i) the number of each Warrant, (ii) the name and address of the Holder thereof, (iii) the original number of Warrant Shares purchasable upon the exercise thereof, (iv) the number of Warrant Shares purchasable upon the exercise thereof, as adjusted from time to time in accordance with this Agreement and (v) the Exercise Price for each Warrant Share, as adjusted from time to time in accordance with this Agreement. The Warrant Register will be maintained by the Issuer and will be available for inspection by any Holder at the principal office of the Issuer or such other location as the Issuer may designate to the Holders in the manner set forth in Section 7.1. The Issuer shall be entitled to treat the Holder of any Warrant as the owner in fact thereof for all purposes and shall not be bound to recognize any equitable or other claim to or interest in such Warrant on the part of any other Person.

3.2 Exchange of Warrants for Warrants.

(a) The Holder may exchange any Warrant issued hereunder for another Warrant of like kind and tenor representing in the aggregate the right to purchase the same number and class or series of Warrant Shares that could be purchased pursuant to the Warrant being so exchanged. In order to effect an exchange permitted by this Section 3.2, the Holder shall deliver to the Issuer such Warrant accompanied by a written request signed by the Holder thereof specifying the number and denominations of Warrants to be issued in such exchange and, subject to the transfer restrictions contained in the Other Equity Documents, the names in which such Warrants are to be issued. As promptly as practicable but in any event within three Business Days of receipt of such a request, the Issuer shall, without charge, issue, register and deliver to the Holder thereof each Warrant to be issued in such exchange and make any necessary changes to the Warrant Register.

(b) Upon receipt of evidence reasonably satisfactory to the Issuer (an affidavit of the Holder being satisfactory) of the ownership and the loss, theft, destruction or mutilation of any Warrant, and in the case of any such loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to the Issuer (if the Holder is a financial institution or other institutional investor, its own indemnity agreement being satisfactory) or, in the case of any such mutilation, upon surrender of such Warrant, the Issuer shall, without charge, issue, register and deliver in lieu of such Warrant a new Warrant of like kind representing the same rights represented by, and dated the date of, such lost, stolen, destroyed or mutilated Warrant. Any such new Warrant shall constitute an original contractual obligation of the Issuer, whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by any Person.

(c) The Issuer shall pay all expenses and Taxes (other than any applicable income or income-based, capital gains or similar Taxes payable by a Holder of a Warrant) attributable to an exchange of a Warrant pursuant to this Section 3.2; provided, however, that the Issuer shall not be required to pay any Tax that may be payable in respect of any Transfer involved in the issuance of any Warrant in a name other than that of the Holder of the Warrant being exchanged.

3.3 Mechanics of Transfer of Warrants.

(a) Subject to the further provisions of this Agreement and the Other Equity Documents, each Warrant may be Transferred, in whole or in part, by the Holder thereof by delivering to the Issuer such Warrant accompanied by a properly completed, duly executed, Assignment Form. As promptly as practicable but in any event within three Business Days of receipt of such Assignment Form, the Issuer shall, without charge, issue, register and deliver to the Holder thereof a new Warrant of like kind and tenor representing in the aggregate the right to purchase the same number of Warrant Shares that could be purchased pursuant to the Warrant being Transferred.

(b) At the request of the Issuer, any Person to whom a Warrant is Transferred in accordance with this Article III shall execute and deliver to the Issuer a joinder in the form of Annex C to the Warrant pursuant to which such Person agrees to become a party to, and to be bound by the terms of and entitled to the benefits under this Agreement.

ARTICLE IV
EXERCISE OF WARRANT; EXCHANGE FOR WARRANT SHARES

4.1 Exercise of Warrants; Expiration.

(a) On any Business Day during normal business hours on or prior to the Expiration Time, a Holder may exercise a Warrant, in whole or in part, by delivering to the Issuer such Warrant accompanied by a properly completed Exercise Form and consideration in the form set forth in Section 4.1(b) in an aggregate amount equal to the product of (x) the Exercise Price and (y) the number of Warrant Shares being purchased. Any partial exercise of a Warrant shall be for a whole number of Warrant Shares only.

(b) Upon exercise of a Warrant, in whole or in part, the Holder thereof shall deliver to the Issuer the aggregate Exercise Price:

(i) by wire transfer of immediately available funds to a bank account designated by the Issuer or a certified check payable to the Issuer;

(ii) by surrender of a number Warrant Shares having a Fair Market Value equal to the aggregate Exercise Price; or

(iii) a combination of the methods set forth in clauses (i) and (ii).

(c) A Warrant shall terminate and become void as of the earlier of (x) the Expiration Time and (y) the date such Warrant is exercised in full.

4.2 Exchange for Warrant Shares.

(a) On any Business Day during normal business hours on or prior to the Expiration Time, a Holder may exchange a Warrant, in whole or in part, for Warrant Shares by delivering to the Issuer such Warrant accompanied by a properly completed Exchange Form. The number of Warrant Shares to be received by a Holder upon such exchange shall be equal to the number of Warrant Shares allocable to the portion of the Warrant being exchanged (the “Exchange Number”), as specified by such Holder in the Exchange Form, minus a number of Warrant Shares equal to the quotient obtained by dividing (i) the product of (x) the Exercise Price and (y) the Exchange Number by (ii) the Fair Market Value of one Warrant Share as of the Delivery Date. The Issuer acknowledges that the provisions of this Section 4.2 are intended, in part, to ensure that a full or partial exchange of a Warrant pursuant to this Section 4.2 will qualify as a conversion, within the meaning of paragraph (d)(3)(ii) of Rule 144 of the Securities Act. At the request of any Holder, the Issuer will accept reasonable modifications to the exchange procedures provided for in this Section 4.2 in order to accomplish such intent.

(b) The Issuer and each Holder intend that if any Holder exercises this Warrant by surrendering Warrant Shares as contemplated by Section 4.1(b)(ii) or Section 4.2 hereof, such method of exercise shall be treated for Tax purposes as a “reorganization” pursuant to Section 368(a)(1)(E) of the Code. The Issuer and each Holder intend that such Holder (and its direct and indirect beneficial owners) will neither realize nor recognize any taxable income or gain as a result of its exercise of the Warrant by such method. None of the parties hereto will take any position in their respective Tax or other financial or accounting filings that are contrary to or inconsistent with the foregoing.

4.3 Issuance of Warrant Shares.

(a) Issuance of Warrant Shares. As promptly as practicable but in any event within three Business Days following the delivery date (the “Delivery Date”) of (i) an Exercise Form or Exchange Form in accordance with Section 4.1 or 4.2, (ii) the related Warrant and (iii) any required payment of the Exercise Price, the Issuer shall, without charge, upon compliance with the applicable provisions of this Agreement, issue to such Holder one or more stock certificates or other appropriate evidence of ownership of the aggregate number of Warrant Shares to which the Holder of such Warrant is entitled and the other Securities or Property (including any Cash) to which such Holder is entitled, in such denominations, and registered or otherwise placed in, or payable to the order of, such name as may be directed in writing by such Holder. The Issuer shall deliver such stock certificates or evidence of ownership and any other

Securities or Property (including any Cash) to the Person entitled to receive the same, together with an amount in Cash in lieu of any fraction of a Warrant Share (or fractional interest in any other Security), as hereinafter provided. If any Securities included in the Warrant Shares are Publicly Traded, then at the request of such Holder, the Issuer shall use commercially reasonable efforts to cause its transfer agent to electronically transmit such Securities to such Holder through the Deposit Withdrawal Agent Commission System of The Depository Trust Company.

(b) Partial Exercise or Exchange. If a Holder shall exercise or exchange a Warrant for less than all of the Warrant Shares that could be purchased or received thereunder, the Issuer shall issue, register and deliver to the Holder, as promptly as practicable but in any event within three Business Days following the Delivery Date, a new Warrant evidencing the right to purchase the remaining Warrant Shares. In the case of an exchange pursuant to Section 4.2, the number of remaining Warrant Shares shall be the original number of Warrant Shares subject to the Warrant so exchanged reduced by the Exchange Number. Each Warrant surrendered pursuant to Section 4.1 or 4.2 shall be cancelled.

(c) Fractional Shares. The Issuer shall not be required to issue fractional Warrant Shares or fractional units of any other Security upon the exercise or exchange of a Warrant. If any fraction of a Warrant Share or fractional unit of any other Security would be issuable on the exercise or exchange of any Warrant, the Issuer may, in lieu of issuing such fraction of a Warrant Share or fractional unit, pay to such Holder for any such fraction an amount in Cash equal to the product of (x) such fraction and (y) the Fair Market Value for one Warrant Share or for a unit of such other Security, as the case may be, as of the Delivery Date.

(d) Expenses. The Issuer shall pay all expenses and Taxes (other than any applicable income, capital gains or similar Taxes payable by a Holder of a Warrant) attributable to the initial issuance of Warrant Shares upon the exercise or exchange of a Warrant; provided, however, that the Issuer shall not be required to pay any Tax that may be payable in respect of any Transfer involved in the issuance of any Warrant or any certificate for, or any other evidence of ownership of, Warrant Shares in a name other than that of the Holder of the Warrant being exercised or exchanged.

(e) Record Ownership. To the extent permitted by Applicable Laws, the Person in whose name any certificate for Warrant Shares or other evidence of ownership of any other Security is issued upon exercise or exchange of a Warrant shall for all purposes be deemed to have become the holder of record of such Warrant Shares or other Security on the Delivery Date, irrespective of the date of delivery of such certificate or other evidence of ownership (subject, in the case of any exercise to which Section 4.3(g) applies, to the consummation of a transaction upon which such exercise is conditioned), notwithstanding that the transfer books of the Issuer shall then be closed or that such certificates or other evidence of ownership shall not then actually have been delivered to such Person.

(f) Listings. The Issuer shall from time to time promptly take all action that may be necessary so that any such Securities, immediately upon their issuance upon exercise or exchange of Warrants, will be listed on all the principal securities exchanges, quotation systems and markets within the United States of America, if any on which other Securities of the Issuer of the same class or type are then listed or quoted.

(g) Conditional Exercise or Exchange. Any Exercise Form or Exchange Form delivered under Section 4.1 or 4.2 may condition the exercise or exchange of any Warrant on the consummation of a transaction being undertaken by the Issuer or the Holder of such Warrant, and such exercise or exchange shall not be deemed to have occurred except concurrently with the consummation of such transaction, except that, for purposes of determining whether such exercise or exchange is timely it shall be deemed to have occurred on the Delivery Date. If any exercise of a Warrant is so conditioned, then, subject to delivery of the items required by Section 4.3(a) and compliance with the other terms hereof, the Issuer shall deliver the certificates and other evidence of ownership of other Securities or other Property in such manner as such Holder shall direct as required in connection with the consummation of such transaction upon which the exercise or exchange is conditioned. If, at any time prior to the consummation of a conditional exercise or exchange, such Holder shall give notice to the Issuer that such transaction has been abandoned or such Holder has withdrawn from participation in such transaction, the Issuer shall return the items delivered pursuant to Section 4.3(a), and such Holder’s election to exercise such Warrant shall be deemed rescinded.

ARTICLE V
ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES

5.1 General.

The Exercise Price and the number and kind of Warrant Shares issuable upon exercise of each Warrant shall be subject to adjustment from time to time in accordance with this Article V.

5.2 Distributions, Subdivisions and Combinations.

If, at any time after the Effective Date, the Issuer shall:

(i) make a Distribution in shares of Common Stock;

(ii) subdivide, split or reclassify its outstanding shares of Common Stock into a larger number of shares of Common Stock; or

(iii) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock;

then (A) the number of Warrant Shares issuable upon exercise of each Warrant shall be adjusted so as to equal the number of Warrant Shares that the Holder of such Warrant would have held immediately after the occurrence of such event if the Holder had exercised such Warrant for shares of Common Stock immediately prior to the occurrence of such event (or, in the case of clause (i), the record date therefor) and (B) the Exercise Price shall be adjusted to be equal to the product of (x) the Exercise Price immediately prior to the occurrence of such event and (y) a fraction (1) the numerator of which is the number of Warrant Shares issuable upon exercise of such Warrant immediately prior to the adjustment in clause (A) and (2) the denominator of which is the number of Warrant Shares issuable upon exercise of such Warrant immediately after the adjustment in clause (A); provided, that in no event shall such adjustment result in an Exercise Price per share which is less than the par value per Warrant Share. An adjustment made

pursuant to this Section 5.2 shall become effective immediately after the occurrence of such event retroactive to the record date, if any, for such event.

5.3 Issuance of Shares of Common Stock.

(a) Issuances Below Fair Market Value. If, at any time after the Effective Date and prior to a Public Market Issuance, the Issuer shall issue or sell (or, in accordance with Section 5.3(b), shall be deemed to have issued or sold) any shares of Common Stock (other than any issuance for which an adjustment is made pursuant to Section 5.2 or 5.4 or no adjustment is required pursuant to Section 5.9(d)) without consideration or for a consideration per share less than the Fair Market Value for such Common Stock determined as of the date of such issuance or sale, then, effective immediately upon such issuance or sale, the Exercise Price and the number of Warrant Shares issuable upon exercise of each Warrant shall be adjusted as follows:

(i) The Exercise Price shall be reduced to an amount equal to the product of (x) the Exercise Price in effect immediately prior to such issuance or sale and (y) a fraction, (I) the numerator of which shall be the sum of (x) the product of (1) the number of shares of Common Stock outstanding (on a Fully Diluted Basis) immediately prior to such issuance or sale and (2) the Fair Market Value of one share of Common Stock as of the date of such issuance or sale plus (y) the aggregate consideration, if any, received by the Issuer upon such issuance or sale, and (II) the denominator of which shall be the product of (x) the number of shares of Common Stock outstanding (on a Fully Diluted Basis) immediately after such issuance or sale (prior to any adjustment pursuant to clause (ii) below) and (y) the Fair Market Value for one share of Common Stock immediately prior to such issuance or sale; provided, that in no event shall such adjustment result in an Exercise Price per share which is less than the par value per Warrant Share.

(ii) The number of Warrant Shares issuable upon exercise of such Warrant shall be increased by multiplying the number of Warrant Shares issuable upon exercise of such Warrant immediately prior to such issuance or sale by a fraction (x) the numerator of which shall be the Exercise Price in effect immediately prior to the adjustment in Section 5.3(a)(i) and (y) the denominator of which shall be the Exercise Price in effect immediately after such adjustment.

(b) Issuance of Options or Convertible Securities. For the purposes of Section 5.3(a), the issuance or sale of Options or Convertible Securities shall be deemed, in accordance with this Section 5.3(b), to be the issuance of shares of Common Stock.

(i) Issuance of Options. If the Issuer in any manner issues or grants any Options, then the total maximum number of shares of Common Stock issuable upon the exercise of such Options (or upon conversion or exchange of the total maximum amount of Convertible Securities issuable upon the exercise of such Options) shall be deemed, for purposes of Section 5.3(a), to be outstanding and to have been issued and sold by the Issuer. For purposes of Section 5.3(a), the shares of Common Stock issuable upon exercise of Options or upon conversion or exchange of Convertible Securities issuable upon exercise of Options for Convertible Securities shall be deemed to have been issued and sold at a price per share equal to (A) the sum of (x) the total amount, if any, received or receivable by the Issuer as consideration

for the issuance or granting of such Options plus (y) the minimum aggregate amount of additional consideration, if any, payable to the Issuer upon the exercise of all such Options plus (z) in the case of such Options for Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable to the Issuer upon conversion or exchange of such Convertible Securities divided by (B) the total maximum number of shares of Common Stock issuable upon exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options.

(ii) Issuance of Convertible Securities. If the Issuer in any manner issues or sells any Convertible Securities, then the maximum number of shares of Common Stock issuable upon the conversion or exchange of such Convertible Securities shall be deemed, for purposes of Section 5.3(a), to be outstanding and to have been issued and sold by the Issuer. For purposes of Section 5.3(a), the shares of Common Stock issuable upon conversion or exchange of Convertible Securities shall be deemed to have been issued and sold at a price per share equal to (A) the sum of (x) the total amount received or receivable by the Issuer as consideration for the issuance or sale of such Convertible Securities plus (y) the minimum aggregate amount of additional consideration, if any, payable to the Issuer upon the conversion or exchange thereof divided by (B) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities.

(iii) Superseding Adjustment. If, at any time after any adjustment of the Exercise Price and the number of Warrant Shares issuable upon exercise of the Warrants shall have been made pursuant to Section 5.3(a) as a result of the issuance of Options or Convertible Securities, or after any new adjustment of the Exercise Price and the number of Warrant Shares shall have been made pursuant to this Section 5.3(b)(iii) (each of the foregoing, a “Previous Adjustment”):

(A) such Options or the right of conversion or exchange of such Convertible Securities shall expire, or be terminated or surrendered, and all or a portion of such Options or the right of conversion or exchange with respect to all or a portion of such Convertible Securities, as the case may be, shall not have been exercised or treated as having been exercised or otherwise canceled or acquired by the Issuer in connection with any settlement, including any Cash settlement, of such Options or the rights of conversion or exchange of such Convertible Securities;

(B) there has been any change in the number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of such Convertible Securities (including as a result of a change in the number of Convertible Securities issuable upon the exercise of such Options or the operation of anti-dilution provisions applicable thereto); or

(C) the consideration per share for which shares of Common Stock are issuable upon the exercise of such Options or upon the conversion or exchange of such Convertible Securities shall be changed;

then, with respect to the unexercised portion of any then outstanding Warrants, the Previous Adjustment shall be rescinded and annulled and the shares of Common Stock which were deemed to have been issued and that gave rise to the Previous Adjustment shall no longer be deemed to have been issued. Thereupon, a recomputation shall be made of the adjustment, if any, of the Exercise Price and the number of Warrant Shares issuable upon exercise of such Warrants as a consequence of such Options or Convertible Securities on the basis of:

(1) treating the number of shares of Common Stock, if any, theretofore actually issued or issuable pursuant to the previous exercise of such Options or such right of conversion or exchange (including Options or rights treated as exercised, otherwise cancelled or acquired in connection with any settlement), as having been issued on the date of such issuance as determined for purposes of the Previous Adjustment and for the total amount of consideration actually received and receivable therefor (determined in the manner described in Section 5.3(b)(i) or (ii), as the case may be);

(2) treating the maximum number of shares of Common Stock (x) issuable upon the exercise (or upon the conversion or exchange of Convertible Securities issuable upon the exercise) of all Options which then remain outstanding and (y) issuable upon the conversion or exchange of all Convertible Securities which then remain outstanding, as having been issued; and

(3) making the computations called for in Section 5.3(a) hereof on the basis of the revised terms of such outstanding Options or Convertible Securities, as the case may be, as if they were newly issued at the time of such revision.

Any adjustment of the Exercise Price and the number of Warrant Shares issuable upon exercise of the Warrants resulting from such recomputation shall supersede the Previous Adjustment.

(iv) No Further Adjustments. Any adjustment of the Exercise Price or the number of Warrant Shares issuable upon the exercise of Warrants to be made pursuant to this Section 5.3 with respect to the issuance of (A) any Options, (B) any Convertible Securities issuable upon the exercise of such Options or (C) any shares of Common Stock issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities shall be made effective upon the issuance of such Options. Any adjustment of the Exercise Price or the number of Warrant Shares issuable upon the exercise of Warrants to be made pursuant to this Section 5.3 with respect to the issuance of (x) any Convertible Securities (other than Convertible Securities issuable upon the exercise of Options) or (y) any shares of Common Stock issuable upon the conversion or exchange of such Convertible Securities shall be made effective upon the

issuance of such Convertible Securities. No further adjustment of the Exercise Price or the number of Warrant Shares issuable upon the exercise of Warrants shall be made upon the actual issuance of shares of Common Stock or of Convertible Securities upon the exercise of such Options or upon the actual issuance of shares of Common Stock upon conversion or exchange of Convertible Securities, except as provided in this Section 5.3.

5.4 Distributions of Assets or Securities Other than Common Stock.

If (x) at any time after the Effective Date, the Issuer shall distribute to the holders of its shares of Common Stock in respect of their ownership of Common Stock (other than a distribution of shares of Common Stock referred to in Section 5.2), rights to purchase any of its Securities (other than those referred to in Section 5.3), evidences of its Indebtedness, Cash or other Property and (y) the Issuer is unable to comply with Section 6.3 below, then the Exercise Price and the number of Warrant Shares issuable upon exercise of each Warrant shall be adjusted as set forth below:

(a) The Exercise Price shall be reduced to an amount equal to the product of (i) the Exercise Price in effect immediately prior to such distribution and (ii) a fraction (A) the numerator of which shall be (x) the product of (1) the number of shares of Common Stock outstanding (on a Fully Diluted Basis) as of the record date for determining equity holders entitled to such distribution and (2) the Fair Market Value for one share of Common Stock as of such record date less (y) the Fair Market Value of the portion of the Securities, evidences of Indebtedness, Cash or other Property distributed or to be distributed with respect to the shares of Common Stock, and (B) the denominator of which shall be the product of (1) the number of shares of Common Stock outstanding (on a Fully Diluted Basis) as of the record date for determining equity holders entitled to such distribution and (2) the Fair Market Value for the Common Stock (prior to any adjustment pursuant to clause (b) below) as of the record date for determining equity holders entitled to such distribution.

(b) The number of Warrant Shares issuable upon exercise of such Warrant shall be increased by multiplying (i) the number of Warrant Shares issuable upon exercise of such Warrant immediately prior to such distribution and (ii) a fraction, (A) the numerator of which shall be the Exercise Price in effect immediately prior to the adjustment in Section 5.4(b) and (B) the denominator of which shall be the Exercise Price in effect immediately after such adjustment.

5.5 Capital Reorganization, Capital Reclassifications, Merger, Etc.

(a) If, at any time after the Effective Date, (i) there shall be (A) any capital reorganization or any reclassification of the Capital Stock of the Issuer (other than a change in par value or as a result of a stock dividend, or as a result of a Distribution or subdivision, split-up or combination of shares of Common Stock to which Section 5.2 applies or any Distribution to which Section 5.4 applies); (B) any consolidation, merger or business combination of the Issuer with another Person; (C) any sale or conveyance by the Issuer of all or substantially all of its assets or Property to another Person or (D) any conversion (statutory or otherwise) of the Issuer from a corporation to a different form of entity; and (ii) the transaction shall be effected in such a way that holders of shares of Common Stock shall be entitled to receive Securities, Cash or other

Property with respect to or in exchange for shares of Common Stock, then the Issuer shall cause effective provision to be made so that, in lieu of the number of Warrant Shares issuable upon exercise of such Warrant, effective as of the effective date of such event retroactive to the record date, if any, of such event, such Warrant shall be exercisable for the kind and number of Securities, Cash or other Property to which a holder of such number of Warrant Shares would have been entitled upon such event. In any such case, if necessary, the provisions of this Agreement and the Warrants with respect to the rights and interests thereafter of the Holders of the Warrants shall be appropriately adjusted so as to be applicable, as nearly as may reasonably be, to any Securities, Cash or other Property thereafter deliverable upon the exercise of the Warrants.

(b) The provisions of this Section 5.5 shall not operate as a waiver of any restriction on any of the actions or transactions described above that may be contained in any other agreement or instrument, including the Other Equity Documents.

5.6 Above Market Purchases of Securities.

(a) If, at any time after the Effective Date and prior to a Public Market Issuance, the Issuer or any Subsidiary shall repurchase (a “Repurchase”), by self-tender offer or otherwise, any Securities of the Issuer at an aggregate repurchase price that exceeds the aggregate single-day Fair Market Value for the Securities repurchased determined as of the Business Day immediately prior to the earliest of (x) the date of such Repurchase, (y) the commencement of an offer to repurchase or (z) the public announcement of either (x) or (y) (such date being referred to as the “Determination Date”), then the Exercise Price and the number of Warrant Shares issuable upon exercise of each Warrant shall be adjusted as follows:

(i) The Exercise Price shall be reduced to an amount equal to the product of the Exercise Price in effect immediately prior to such issuance or sale and a fraction, (A) the numerator of which shall be (x) the product of (1) the Fair Market Value for one share of Common Stock as of the Determination Date and (2) the number of shares of Common Stock outstanding (on a Fully Diluted Basis) immediately following the consummation of the Repurchase less (y) the Repurchase Premium, and (B) the denominator of which shall be (x) the product of (1) the Fair Market Value for one share of Common Stock as of the Determination Date and (2) the number of shares of Common Stock outstanding (on a Fully Diluted Basis) immediately following the consummation of the Repurchase.

(ii) The number of Warrant Shares issuable upon exercise of such Warrant shall be increased to the number of shares determined by multiplying (i) the number of Warrant Shares issuable upon exercise of such Warrant immediately prior to such Repurchase times (ii) a fraction (A) the numerator of which shall be the Exercise Price in effect immediately prior to the adjustment in clause (i) of this Section 5.6 and (B) the denominator of which shall be the Exercise Price in effect immediately after such adjustment.

(b) The amount by which the aggregate repurchase price for all Securities repurchased in any Repurchase exceeds the aggregate Fair Market Value for such Securities is referred to as the “Repurchase Premium”.

5.7 Other Actions Affecting Equity Securities.

If at any time or from time to time the Issuer shall take any action affecting its Capital Stock (including, without limitation, the creation of equity appreciation rights or phantom equity), other than any action of a type otherwise described in this Article V, then the number of Warrant Shares issuable upon exercise of each Warrant shall be adjusted (with a corresponding adjustment to the Exercise Price) to such extent, if any, and in such manner and at such time, as the Board shall, in the good faith exercise of its reasonable business judgment, determine to be equitable in the circumstances, provided that no such adjustment shall decrease the number of Warrant Shares issuable upon exercise of such Warrant or increase the Exercise Price.

5.8 Reserved.

5.9 Miscellaneous.

(a) Calculation of Consideration Received. If any shares of Common Stock, Options, Convertible Securities or Other Equity Securities are issued or sold or deemed to have been issued or sold for Cash, then the consideration received therefor shall be deemed to be the net amount received or to be received by the Issuer therefor. If any shares of Common Stock, Options, Convertible Securities or Other Equity Securities are issued or sold for consideration other than Cash (including in connection with any merger in which the Issuer issues such Securities), then the amount of the consideration other than Cash received by the Issuer shall be the Fair Market Value of such consideration, as of the date of receipt.

(b) Treasury Shares. The number of shares of Common Stock outstanding at any given time does not include shares of Common Stock owned or held by or for the account of the Issuer or any Subsidiary, and the disposition of any shares of Common Stock so owned or held shall be considered an issuance of shares of Common Stock.

(c) Notice; Adjustment Rules. Whenever the Exercise Price or the number of Warrant Shares shall be adjusted as provided in this Article V, the Issuer shall provide to each Holder a statement, signed by a Responsible Officer of the Issuer, describing in detail the facts requiring such adjustment and setting forth a calculation of the Exercise Price and the number of Warrant Shares applicable to each Warrant after giving effect to such adjustment. Each fiscal year (to the extent applicable), the Issuer shall cause its certified public accountants to provide to each Holder a statement, signed by such certified public accountant, verifying the statement contemplated by the previous sentence. All calculations under this Article V shall be made to the nearest one thousandth of a cent ($.00001) or to the nearest one-thousandth of a share, as the case may be. Adjustments pursuant to this Article V shall apply to successive events or transactions of the types covered thereby. Notwithstanding any other provision of this Article V, no adjustment shall be made to the number of Warrant Shares or to the Exercise Price if such adjustment represents less than 1% of the number of Warrant Shares previously required to be so delivered, but any lesser adjustment shall be carried forward and shall be made at the time and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount to 1% or more of the number of Warrant Shares to be so delivered.

(d) Excluded Issuances. Notwithstanding any other provision of this Article V, no adjustment shall be made pursuant to this Article V in respect of (i) the issuance of shares of Common Stock for cash in any underwritten Public Offering pursuant to a registration statement declared effective under the Securities Act; (ii) the issuance of shares of Common Stock pursuant to any adjustment provided for in this Article V; (iii) the issuance of shares of Common Stock, Options, Convertible Securities or Cash or other Property as a distribution to the holders of shares of Common Stock if, simultaneously with such distribution or dividend payment, the Holders received full payment or distribution of all amounts required by Section 6.3; (iv) Common Stock or Options to purchase Common Stock issued to employees, officers, directors or consultants of the Issuer or any Subsidiary pursuant to the terms of any stock incentive plan or stock bonus plan of the Issuer filed with the Securities and Exchange Commission and incorporated by reference as an exhibit to the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 29, 2007; (v) Securities issued pursuant to transactions involving technology licensing, research or development activities, the use or acquisition of strategic assets, properties or rights, or the distribution, manufacture or marketing of the Issuer’s products, which transactions are for non-financing purposes; provided, that Securities issued pursuant to this clause (v), may not exceed 0.5% of the Common Stock (on a Fully Diluted Basis) immediately after giving effect to the Conversion; (vi) Securities issued in private placements for per share consideration equal to at least 80% of Fair Market Value; provided, that the aggregate net proceeds to the Issuer during the term of this Agreement from such private placements shall not exceed $200 million; and (vii) Securities issued upon the exercise of conversion or exchange rights, options or subscription calls, warrants (including the Warrants), commitments or claims (collectively, “Excluded Issuances”).

ARTICLE VI
COVENANTS OF THE ISSUER

6.1 Notices of Certain Actions.

(a) Corporate Events. In the event that the Issuer proposes to:

(i) authorize the issuance to holders of Capital Stock of the Issuer of rights or warrants to subscribe for or purchase Capital Stock of the Issuer;

(ii) authorize a Distribution to any holder of evidences of its Indebtedness, Cash or other Property;

(iii) become a party to any consolidation or merger for which approval of any holders of Capital Stock of the Issuer will be required, or to a conveyance or transfer of all or substantially all the Property of the Issuer;

(iv) effect any capital reorganization or reclassification of any Capital Stock of the Issuer (other than a change in par value);

(v) commence a voluntary or involuntary dissolution, liquidation or winding up of the Issuer;

(vi) purchase or otherwise acquire any Capital Stock of the Issuer; or

(vii) take any other action which would result in an adjustment in the Exercise Price or the number of Warrant Shares issuable upon exercise of the Warrants

then the Issuer shall provide a written notice to each Holder stating (A) the date as of which the holders of record of Capital Stock of the Issuer to be entitled to receive any such rights or Distributions are to be determined, (B) the material terms of any such consolidation or merger and the expected effective date thereof or (C) the material terms of any such conveyance, transfer, reorganization, reclassification, dissolution, liquidation or winding up, and the date as of which it is expected that holders of record of shares of Capital Stock of the Issuer will be entitled to exchange their Capital Stock of the Issuer for Securities or other Property, if any, deliverable upon such conveyance, transfer, reorganization, reclassification, dissolution, liquidation or winding up. Such notice shall be given not later than seven Business Days prior to the effective date (or the applicable record date, if earlier) of such event.

(b) Change of Control. Not less than fifteen Business Days prior to any Change of Control, but in no event later than the third Business Day following the Issuer becoming aware thereof, the Issuer shall provide written notice to each Holder of the occurrence of such Change of Control, together with a brief description thereof.

6.2 Merger and Consolidation of the Issuer.

The Issuer will not, and will not permit any of its Affiliates to (i) merge or consolidate with or into any other Person or (ii) sell, transfer or lease all or substantially all of its assets or Property (in either case in a transaction in connection with which holders of Equity Interest of the Issuer shall be entitled to receive with respect to or in exchange for such Capital Stock, Securities of the successor or purchasing Person, Cash or other Property), unless, to the extent applicable, the successor or purchasing Person expressly assumes, by supplemental agreement reasonably satisfactory in form and substance to the Requisite Holders, the due and punctual performance and observance of each and every covenant and condition of this Agreement to be performed and observed by the Issuer.

6.3 Dividends; Distributions.

If at any time prior to the Expiration Time the Issuer makes any Distribution (whether in Securities of the Issuer, Cash or other Property) on its Capital Stock, then the Issuer shall simultaneously pay to the Holder of each Warrant, the Securities of the Issuer, Cash or other Property that would have been paid or delivered to such Holder on the Warrant Shares receivable upon the exercise in full of such Warrant had such Warrant been fully exercised immediately prior to the record date for such Distribution or, if no record is taken, the date as of which the record holders of Warrant Shares entitled to such Distribution are to be determined; provided, however, that none of the adjustments set forth in Article V shall be made by reason of any such Distribution on its Capital Stock if the Issuer makes the full Distribution on the Warrants required by this Section 6.3. If the Issuer is prevented from making any payment required by this Section 6.3, the adjustments in Article V shall be made and the Issuer shall have no further obligation under this Section 6.3 with respect to such Distribution.

6.4 No Avoidance.

The Issuer will not, by amendment of its Governing Documents or through any reorganization, Transfer of Properties, consolidation, merger, dissolution, issue or sale of Securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Issuer. The Issuer shall at all times in good faith assist in the carrying out of all the provisions of this Agreement and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders hereunder against impairment.

6.5 Preemptive Rights.

(a) Subsequent Offerings. Each Holder shall have a preemptive right to purchase its pro rata share of all Equity Securities (as defined below) that the Issuer may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 6.5(d). For this purpose, each Holder’s pro rata share is equal to the ratio of (a) the number of shares of Common Stock (including all shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock or upon the exercise or conversion of outstanding warrants or options or convertible securities) of which such Holder, together with its Affiliates, is a holder or would be a holder upon conversion or exercise at the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) to (b) the total number of shares of Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Series A Preferred Stock or upon the exercise or conversion of any outstanding warrants or options or convertible securities) outstanding immediately prior to the issuance of such Equity Securities. The term “Equity Securities” shall mean (i) any shares of Common Stock, Series A Preferred Stock, or other equity securities of the Issuer, (ii) any security convertible into or exercisable or exchangeable for, with or without consideration, shares of Common Stock, Series A Preferred Stock or other equity security of the Issuer (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase shares of Common Stock, Series A Preferred Stock or other equity security of the Issuer or (iv) any such warrant or right. It is understood and agreed that the Company shall not have any obligation under this Section 6.5 to effect a registration of Equity Securities. After the earlier to occur of (x) the consummation of the first Public Market Issuance after the date hereof, and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities in connection therewith pursuant to this Section 6.5, and (y) the Expiration Time, this Section 6.5 shall terminate and shall no longer have any force or effect.

(b) Exercise of Rights. If the Issuer proposes to issue any Equity Securities, it shall give each Holder written notice of its intention, describing the Equity Securities and the price and other terms and conditions upon which the Issuer proposes to issue the same. Each Holder shall have 10 days from the date such notice is deemed given to exercise its right to purchase its pro rata share of the Equity Securities on the terms and conditions specified in the notice by giving written notice thereof to the Issuer. Notwithstanding the foregoing, the Issuer shall not be required to offer or sell such Equity Securities to any Holder if doing so would cause the Issuer to be in violation of applicable securities laws by virtue of such offer or sale.

(c) Issuance of Equity Securities to Other Persons. The Issuer shall have 90 days after the end of the aforementioned 10-day period to sell the Equity Securities in respect of which the Holder’s rights were not exercised, at a price not lower and upon terms and conditions not more favorable to the purchasers thereof than specified in the Issuer’s notice to the Holders pursuant to Section 6.5(b). If the Issuer has not sold such Equity Securities within 90 days after the end of the aforementioned 10-day period the Issuer shall not thereafter issue or sell any Equity Securities without first offering such securities to the Holders in the manner provided above.

(d) Excluded Securities. The preemptive rights established by this Section 6.5 shall have no application to any of the following Equity Securities:

(i) shares of Common Stock and/or options, warrants or other Common Stock purchase rights issued to employees, officers or directors of, or consultants or advisors to the Issuer or any subsidiary pursuant to any stock incentive or bonus plans, share purchase or share option plans or other similar arrangements (A) filed with the Securities and Exchange Commission and incorporated by reference as an exhibit to the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 29, 2007, or (B) that are approved both by the Issuer’s Board of Directors (the “Board”) and its shareholders after the date hereof and do not in the aggregate constitute more than five percent (5%) of Common Stock on a Fully Diluted Basis, and any shares of Common Stock issued upon exercise of such options, warrants or purchase rights;

(ii) Equity Securities issued upon conversion of the Series A Preferred Stock or the Exchange Notes, or upon the exercise of the Warrants, in each case, in accordance with their respective terms;

(iii) any Equity Securities issued pursuant to any rights, agreements, options or warrants granted after the date of this Agreement, so long as the preemptive rights established by this Section 6.5 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6.5(d) with respect to the initial sale or grant by the Issuer of such rights, agreements, options or warrants; or

(iv) any Equity Securities issued in connection with any share split, share dividend or recapitalization in respect of all of the outstanding Equity Securities of a class (and affecting each holder of such Equity Securities equally on a pro rata basis) of the Issuer.

6.6 Sale of Warrants.

In any merger, consolidation, reorganization, repurchase or reclassification or similar transaction, in which holders of Capital Stock of the Issuer sell or otherwise Transfer Capital Stock of the Issuer held by them, the Issuer will cause the transaction to be structured to permit the Holders to deliver Warrants in connection with any such transaction without requirement for exercise thereof as a condition to participation and for consideration not less than the consideration such Holders would have received had such Holders exercised their Warrants immediately prior thereto, less any applicable Exercise Price.

ARTICLE VII
MISCELLANEOUS

7.1 Notices.

All notices and other communications provided for or permitted hereunder shall be made by hand-delivery, first-class mail, telecopier or overnight air courier guarantying next day delivery:

	(i)	if to the Issuer, to:

		NextWave Wireless Inc.
		10350 Science Center Drive, Suite 210
		San Diego, California 92121
		Telephone No.: (858) 731-5300
		Telecopier No.: (858) 731-5301
		Attn: Legal Department

		with a copy to:
		Marita A. Makinen, Esq.
		Weil, Gotshal & Manges LLP

		767 Fifth Avenue
		New York, New York 10153
		Telephone: (212) 310-8000
		Telecopier: (212) 310-8007


	(ii)	if to any Holder, to such Holder’s address as set forth on Schedule I hereto.

All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the next business day after timely delivery to the courier, if sent by overnight air courier guarantying next day delivery. The parties may change the addresses to which notices are to be given by giving five days’ prior notice of such change in accordance herewith.

7.2 No Voting Rights; Limitation of Liability.

Except as otherwise provided herein or in the Other Equity Documents, no Warrant shall entitle the holder thereof to any voting rights or any other rights as a stockholder of the Issuer, as such. No provision hereof, in the absence of affirmative action by the Holder to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder shall give rise to any liability of such Holder for the Exercise Price of Warrant Shares acquirable by exercise hereof or as an equity holder of the Issuer.

7.3 Amendments and Waivers.

(a) Written Document. Any provision of this Agreement may be amended or waived, but only pursuant to a written agreement signed by the Issuer and the Requisite Holders, provided that no such amendment or modification shall without the written consent of each Holder affected thereby (i) shorten the Expiration Time of any Warrant, (ii) increase the Exercise Price of any Warrant, (iii) change any of the provisions of this Section 7.3(a) or the definition of “Requisite Holders” or any other provision hereof specifying the number or percentage of Holders required to waive, amend, or modify any rights hereunder or required to make any determination or grant any consent hereunder or otherwise to act with respect to this Agreement or any Warrants, (iv) change any of the provisions of Article V or (v) increase the obligations of any Holder.

(b) No Waiver. No failure on the part of any Holder to exercise and no delay in exercising, and no course of dealing with respect to, any right, power or privilege under this Agreement or the Warrants shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Agreement or the Warrant preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

7.4 Remedies.

Each Holder shall have all rights and remedies reserved for such Holder pursuant to this Agreement, all rights and remedies which such Holder has been granted at any time under any other agreement or instrument and all of the rights and remedies such Holder may have at law or in equity. The remedies provided herein are cumulative and not exclusive. Any Person having any rights under any provision of this Agreement will be entitled to enforce such rights specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law or equity.

7.5 Binding Effect.

Subject to the limitations set forth in this Agreement and the Other Equity Documents, each Holder has the right to assign or otherwise Transfer its rights under this Agreement or any Warrants or Warrant Shares held by it; provided, however, that a Holder may assign or otherwise Transfer its preemptive rights under Section 6.5 only to Persons who are Affiliates of such Holder. The Issuer shall not assign its rights or obligations hereunder without the prior written consent of the Requisite Holders. This Agreement shall be binding upon and inure to the benefit of the Issuer, each Holder and their successors and permitted assigns.

7.6 Counterparts.

This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

7.7 Governing Law; Jurisdiction and Venue.

(a) ALL QUESTIONS CONCERNING THE CONSTRUCTION, INTERPRETATION AND VALIDITY OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.

(b) THE PARTIES TO THIS AGREEMENT AGREE THAT JURISDICTION AND VENUE IN ANY ACTION BROUGHT BY ANY PARTY HERETO PURSUANT TO THIS AGREEMENT SHALL EXCLUSIVELY LIE IN ANY FEDERAL OR STATE COURT LOCATED IN THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK. BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE JURISDICTION OF SUCH COURTS FOR THEMSELVES AND IN RESPECT OF THEIR PROPERTY WITH RESPECT TO SUCH ACTION. THE PARTIES HERETO IRREVOCABLY AGREE THAT VENUE WOULD BE PROPER IN SUCH COURT, AND HEREBY WAIVE ANY OBJECTION THAT SUCH COURT IS AN IMPROPER OR INCONVENIENT FORUM FOR THE RESOLUTION OF SUCH ACTION.

(c) THE COMPANY AND THE ISSUER HEREBY AGREE THAT SERVICE UPON THEM BY REGISTERED OR CERTIFIED MAIL (RETURN RECEIPT REQUESTED) SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE HOLDERS TO BRING PROCEEDINGS AGAINST EITHER THE COMPANY OR THE ISSUER IN THE COURTS OF ANY OTHER JURISDICTION.

7.8 Waiver of Jury Trial.

EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THIS AGREEMENT OR ANY OTHER EQUITY DOCUMENT OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM IN RESPECT TO THIS AGREEMENT OR ANY OTHER EQUITY DOCUMENT, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. EACH PARTY HERETO HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHTS TO TRIAL BY JURY.

7.9 Benefits of this Agreement.

Nothing in this Agreement shall be construed to give to any Person other than the Issuer and each Holder of a Warrant or a Warrant Share any legal or equitable right, remedy or claim hereunder.

7.10 Headings.

The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

7.11 Aggregation of Warrants and Warrant Shares.

All Warrants and Warrant Shares held or acquired by any Person and its Affiliates shall be aggregated together for purposes of measuring any numerical thresholds used in determining the availability to such Person and its Affiliates, taken collectively, of rights under this Agreement and the applicability of obligations and restrictions under this Agreement.

7.12 Operative Date.

This Agreement shall become operative on the date hereof.

* * * *

IN WITNESS WHEREOF, each party hereto has caused this Warrant Agreement to be duly executed and delivered by its authorized signatory, all as of the date and year first above written.

	NEXTWAVE WIRELESS INC.


	By:	/s/ Frank A. Cassou
		Name: Frank A. Cassou
		Title: Executive Vice President & Secretary

S-1

	AVENUE AIV US, L.P.
	By: Avenue AIV US Genpar, LLC, its General Partner


	By:	/s/ Sonia Gardner
		Name: Sonia Gardner
		Title: President and Managing Partner

S-2

Schedule I

Initial Holders

AVENUE AIV US, L.P.

Avenue Capital Group

535 Madison Avenue, 14th Floor

New York, NY 10022

Attention: Robert Symington

Brian Mulhern

Esther Posner

Exhibit A to the Warrant Agreement

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT OR APPLICABLE STATE SECURITIES OR BLUE SKY LAWS.

ADDITIONALLY, THE TRANSFER OF THESE SECURITIES IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE PURCHASE AGREEMENT, DATED AS OF OCTOBER 9, 2008, AND THE WARRANT AGREEMENT, DATED AS OF JULY 2, 2009, AMONG THE ISSUER HEREOF AND CERTAIN OTHER SIGNATORIES THERETO. UPON THE FULFILLMENT OF CERTAIN CONDITIONS, THE ISSUER HEREOF HAS AGREED TO DELIVER TO THE HOLDER HEREOF A NEW CERTIFICATE, NOT BEARING THIS LEGEND, FOR THE SECURITIES REPRESENTED HEREBY REGISTERED IN THE NAME OF THE HOLDER HEREOF. COPIES OF SUCH AGREEMENTS MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE ISSUER HEREOF.

NEXTWAVE WIRELESS INC.

No. W -

July 2, 2009

Common Stock Purchase Warrant

THIS CERTIFIES that, for value received, [ ] (the “Holder”), or its assigns, is entitled to purchase from NextWave Wireless Inc., a Delaware corporation (the “Issuer”), seven million five hundred thousand (7,500,000) shares (“Warrant Shares”) of Common Stock, $.001 par value (the “Common Stock”), of the Issuer, at the price (the “Exercise Price”) of $.01 per share, at any time or from time to time during the period commencing on the date hereof and ending at 11:59 P.M. Eastern time, on June 29, 2012 (the “Expiration Time”).

The Holder may exercise all or any part of such rights at any time or from time to time prior to the Expiration Time.

This Warrant has been issued pursuant to the Warrant Agreement dated as of July 2, 2009 (as amended, restated, supplemented or otherwise modified from time to time, the “Warrant Agreement”), among the Issuer and the Holders named therein, and is subject to the terms and conditions, and the Holder is entitled to the benefits, thereof. A copy of the Warrant Agreement is on file and may be inspected at the principal executive office of the Issuer. The Holder of this certificate, by acceptance of this certificate, agrees to be bound by the provisions of the Warrant Agreement. Capitalized terms used but not defined herein shall have the respective meanings given to such terms in the Warrant Agreement.

A-1

SECTION 1. Exercise of Warrant. On any day on or prior to the Expiration Time, the Holder may exercise this Warrant, in whole or in part, in the manner set forth in Article IV of the Warrant Agreement.

SECTION 2. Exercise Price. The Exercise Price is subject to adjustment from time to time as set forth in the Warrant Agreement.

SECTION 3. Exchange of Warrant. On any day on or prior to the Expiration Time, the Holder may exchange this Warrant, in whole or in part, for Warrant Shares by delivering to the Issuer this Warrant accompanied by a properly completed Exchange Form in the form of Annex B attached hereto. The number of Capital Stock to be received by the Holder upon such exchange shall be determined as set forth in the Warrant Agreement.

SECTION 4. Transfer. Subject to the limitations set forth or referred to in the Warrant Agreement, this Warrant may be Transferred by the Holder by delivery to the Issuer of this Warrant accompanied by a properly completed Assignment Form in the form of Annex C attached hereto.

SECTION 5. Lost, Stolen, Mutilated or Destroyed Warrant. If this Warrant is lost, stolen, mutilated or destroyed, the Issuer will issue a new Warrant of like denomination and tenor upon compliance with the provisions set forth in the Warrant Agreement.

SECTION 7. Successors. All of the provisions of this Warrant by or for the benefit of the Issuer or the Holder shall bind and inure to the benefit of their respective successors and permitted assigns.

SECTION 8. Headings. Section headings in this Warrant have been inserted for convenience of reference only and shall not affect the construction of, or be taken into consideration in interpreting, this Warrant.

SECTION 9. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS EXCEPT TO THE EXTENT THAT THE NEW YORK CONFLICTS OF LAWS PRINCIPLES WOULD APPLY THE APPLICABLE LAWS OF THE STATE OF THE ISSUER’S ORGANIZATION TO INTERNAL MATTERS RELATING TO ENTITIES SUCH AS THE ISSUER ORGANIZED THEREUNDER).

* * * * *

A-2

IN WITNESS WHEREOF, the undersigned has caused this Warrant to be executed by its duly authorized officers and this Warrant to be dated as of the date first set forth above.

	NEXTWAVE WIRELESS INC.


	By:
		Name:
		Title:

Annex A to the Warrant

EXERCISE FORM

[To be signed upon exercise of a Warrant]

TO NEXTWAVE WIRELESS INC.

The undersigned, being the Holder of the attached Warrant, hereby elects to exercise the purchase right represented by such Warrant for, and to purchase thereunder shares of Common Stock of NextWave Wireless Inc., a Delaware corporation (the “Issuer”) and requests that the certificates or other evidence of ownership for such shares be issued in the name of, and be delivered to, , whose address is

The undersigned warrants to the Issuer that the undersigned (a) is not acquiring the Warrant Shares with a view to Transferring such Warrant Shares in violation of the Securities Act of 1933, as amended (the “Securities Act”) and (b) acknowledges that the issuance of the Warrant Shares has not been registered under the Securities Act and that the Warrant Shares may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption therefrom is available.

The foregoing exercise is (check one):

o	Irrevocable

o	Conditioned upon the consummation of the transaction described briefly below:

Dated:
			Name:
			Title:

Annex B to the Warrant

EXCHANGE FORM

[To be signed upon exchange of a Warrant]

TO NEXTWAVE WIRELESS INC.

The undersigned, being the Holder of the within Warrant, hereby elects to exchange, pursuant to Section 4.2 of the Warrant Agreement referred to in such Warrant, the portion of such Warrant representing the right to purchase shares of Common Stock of NextWave Wireless Inc., a Delaware corporation (the “Issuer”). The undersigned hereby requests that the certificates or evidence of ownership for the number of shares issuable in such exchange pursuant to such Section 4.2 be issued in the name of, and be delivered to, , whose address is

The undersigned warrants to the Issuer that the undersigned (a) is not exchanging the Warrant Shares with a view to Transfer such Warrant Shares in violation of the Securities Act of 1933, as amended (the “Securities Act”) and (b) acknowledges that the issuance of the Warrant Shares has not been registered under the Securities Act and that the Warrant Shares may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption therefrom is available.

The foregoing exchange is (check one):

o	Irrevocable

o	Conditioned upon the consummation of the transaction described briefly below:

Dated:
			Name:
			Title:

TABLE OF CONTENTS

(continued)

Page

Annex C to the Warrant

ASSIGNMENT FORM

[To be signed only upon transfer of a Warrant]

For value received, the undersigned hereby sells, assigns and transfers unto , all of the rights represented by the within Warrant to purchase shares of Common Stock of NextWave Wireless Inc., a Delaware corporation (the “Issuer”), to which such Warrant relates, and appoints attorney to transfer such Warrant on the books of the Issuer, with full power of substitution in the premises.

Dated:



			Name:
			Title:

By executing and delivering this Assignment Form to the Issuer, the undersigned hereby agrees to become a party to, to be bound by, and to comply with the provisions of the Warrant Agreement dated as of July 2, 2009 (as amended, restated, supplemented or otherwise modified from time to time, the “Warrant Agreement”), among the Issuer and the Holders, in the same manner as if the undersigned were an original signatory to the Warrant Agreement.

The undersigned agrees that he, she or it shall be a “Holder”, as such term is defined in the Warrant Agreement.

Dated:


			Signature of transferee


			Print Name of transferee


			Address

			Facsimile

			Telephone

EX-10 4 a09-17570_2ex10.htm EX-10

Exhibit 10

ACKNOWLEDGMENT

THIS ACKNOWLEDGMENT (this “Acknowledgment”) is dated July 2, 2009, and entered into by NEXTWAVE WIRELESS INC., a Delaware corporation (“Company”).

RECITALS

WHEREAS, Company has entered into (i) the Registration Rights Agreement, dated as of October 9, 2008 (as amended, restated, supplemented or otherwise modified from time to time, the “Registration Rights Agreement”; capitalized terms used herein but not defined herein shall have the meaning assigned to such terms in the Registration Rights Agreement), with Avenue AIV US, L.P. and Sola Ltd with respect to the Warrants issued to such persons pursuant to the Purchase Agreement, and (ii) the Second Lien Incremental Indebtedness Agreement, dated as of July 2, 2009 (as amended, restated, supplemented or otherwise modified from time to time, the “Incremental Indebtedness Agreement”), with the purchasers party thereto (the “Purchasers”), NextWave Wireless LLC, a Delaware limited liability company (“NextWave Wireless LLC”), and the guarantors party thereto, and acknowledged by The Bank of New York Mellon, as Collateral Agent. Pursuant to the Incremental Indebtedness Agreement and the Purchase Agreement, NextWave Wireless LLC has agreed to sell, and the Purchasers have agreed to purchase, the Incremental Indebtedness Notes (as defined in the Incremental Indebtedness Agreement) and, pursuant to the Incremental Indebtedness Agreement, Company has agreed to issue certain warrants to the Purchasers (the “Incremental Indebtedness Warrants”).

WHEREAS, it is a condition precedent to the effectiveness of the Incremental Indebtedness Agreement that Company execute and deliver this Acknowledgment to the Purchasers.

ACKNOWLEDGMENT

1. Company hereby acknowledges and agrees that (a) the term “Warrants” contained in the Registration Rights Agreement shall refer, collectively, to the Warrants (as defined in the Purchase Agreement) and the Incremental Indebtedness Warrants and (b) the Incremental Indebtedness Warrants and any shares of Common Stock of Company acquired by the Purchasers pursuant thereto shall be entitled to the benefits, and subject to the provisions, of the Registration Rights Agreement as if included therein as of the date thereof.

2. No amendment, modification, termination or waiver of any provision of this Acknowledgment shall in any event be effective without the written concurrence of the Purchasers. Any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given.

3. This Acknowledgment and any amendments, waivers, consents or supplements hereto or in connection herewith 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.

4. THIS ACKNOWLEDGMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

[signature follows]

IN WITNESS WHEREOF, Company has caused this Acknowledgment to be executed on the day and year first written above.

	NEXTWAVE WIRELESS INC.


	By:	/s/ Frank A. Cassou
		Name: Frank A. Cassou
		Title: Executive Vice President & Secretary

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