THIRD LIEN SUBORDINATED EXCHANGE NOTE

Exhibit 1

EXECUTION VERSION

THIRD LIEN SUBORDINATED EXCHANGE NOTE

EXCHANGE AGREEMENT

among

NextWave Wireless Inc.,

NextWave Wireless LLC,

each Guarantor named herein,

and

the Purchasers named herein

Relating to:

Third Lien Subordinated Secured Convertible Notes due 2011

NextWave Wireless Inc.

Dated as of October 9, 2008

TABLE OF CONTENTS

ARTICLE I PURCHASE, SALE AND ISSUANCE OF SECURITIES	1
1.1 Issuance of Notes.	1
1.2 Sale and Purchase of the Notes; Closing.	1
1.3 [RESERVED]	2
1.4 Purchasers’ Representations and Acknowledgement.	2
1.5 Expenses.	4
1.6 Indemnification.	5
1.7 Registration of Notes; etc.	7
1.8 Tax Matters.	8

ARTICLE II CLOSING CONDITIONS	11
2.1 Closing Conditions.	11

ARTICLE III HOLDERS’ SPECIAL RIGHTS	15
3.1 Service Charges.	15
3.2 Direct Payment.	15
3.3 Lost, etc. Notes.	15
3.4 Inspection.	16

ARTICLE IV REPRESENTATIONS AND WARRANTIES	16
4.1 Organization, Powers.	16
4.2 Qualification and Good Standing.	16
4.3 Company and Subsidiaries; Capitalization.	17
4.4 Due Authorization.	17
4.5 No Conflict.	17
4.6 Governmental Consents.	18
4.7 Binding Obligations.	18
4.8 No Default; Contracts and Spectrum Leases.	18
4.9 [RESERVED]	19
4.10 Financial Condition.	19
4.11 No Material Adverse Change; Absence of Undisclosed Liabilities.	19
4.12 Title to Collateral; Properties; Liens.	19
4.13 FCC Licenses.	20
4.14 Intellectual Property.	21
4.15 Litigation; Adverse Facts.	22
4.16 Payment of Taxes.	22
4.17 Compliance With Laws; Governmental Authorizations; Insurance.	22
4.18 Affiliate Transactions.	23
4.19 Investment Company Act.	24

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TABLE OF CONTENTS

(continued)

4.20 Securities Activities.	24
4.21 ERISA.	24
4.22 Certain Fees.	25
4.23 Environmental Matters.	25
4.24 Employee Matters.	26
4.25 Solvency.	26
4.26 Indebtedness.	26
4.27 No Violation of Regulations of Board of Governors of Federal Reserve System.	26
4.28 Private Offering.	26
4.29 Disclosure.	26
4.30 Representations and Warranties.	27
4.31 Creation, Perfection and Priority of Liens.	27
4.32 Subsidiary Rights.	27
4.33 Ranking of Notes.	27
4.34 Independent Auditors.	28
4.35 Books and Records.	28
4.36 Money Laundering.	28
4.37 SEC Compliance.	28
4.38 Necessary Approvals.	29

ARTICLE V COVENANTS	29
5.1 Financial Statements and Other Reports.	30
5.2 Payment of Notes.	32
5.3 Satisfaction of Obligations; Taxes.	32
5.4 Maintenance of Property; Insurance.	33
5.5 Corporate Existence.	33
5.6 Books and Records.	33
5.7 Compliance with Law, Maintenance of FCC Licenses.	33
5.8 Account Control Agreement Amendment.	34
5.9 Additional Guarantors; Additional Collateral.	34
5.10 Asset Sale Proceeds Account.	35
5.11 Limitation on Restricted Payments.	36
5.12 Liens and Related Matters.	37
5.13 Indebtedness.	38
5.14 Asset Sales.	39
5.15 Merger and Consolidation.	40
5.16 No Layering of Debt.	41
5.17 Limitation on Transactions With Affiliates.	41

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TABLE OF CONTENTS

(continued)

5.18 Offer to Repurchase Upon Change of Control.	42
5.19 Nature of Business.	44
5.20 Investment Company Act.	44
5.21 Waiver of Stay, Extension or Usury Laws.	44
5.22 Spectrum Holdings.	44
5.23 Amendments of Organizational Documents.	44
5.24 OFAC.	45
5.25 Parent Issuer.	45
5.26 [RESERVED]	45
5.27 [RESERVED]	45
5.28 License Subsidiaries.	45

ARTICLE VI DEFAULTS AND REMEDIES	45
6.1 Event of Default.	46
6.2 Acceleration.	49
6.3 Other Remedies.	49
6.4 Waiver of Past Defaults.	49
6.5 Rights of Holders to Receive Payment.	50

ARTICLE VII [RESERVED]	50

ARTICLE VIII REDEMPTION AND REPURCHASE OF THE NOTES	50
8.1 Optional Redemption; Mandatory Redemption.	50
8.2 Selection of Notes to Be Redeemed or Purchased.	51
8.3 Notice of Redemption.	51
8.4 Effect of Notice of Redemption.	52
8.5 Deposit of Redemption or Purchase Price.	52
8.6 Notes Redeemed or Purchased in Part.	52

ARTICLE IX DEFINITIONS	52

ARTICLE X MISCELLANEOUS	73
10.1 Notices.	73
10.2 Successors and Assigns; Assignments.	74
10.3 Amendment and Waiver.	75
10.4 Release of Security Interest or Guaranty; Release of Guarantor.	76
10.5 Interest Rate Limitation.	76
10.6 Counterparts.	77
10.7 Headings.	77
10.8 Governing Law.	77

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TABLE OF CONTENTS

(continued)

10.9 Consent to Jurisdiction and Service of Process.	77
10.10 Waiver of Jury Trial.	78
10.11 Survival of Warranties and Certain Agreements.	78
10.12 Failure or Indulgence Not Waiver; Remedies Cumulative.	78
10.13 Independence of Covenants.	79
10.14 Marshalling; Payments Set Aside.	79
10.15 Set-Off.	79
10.16 Classification of Transaction.	79
10.17 Exculpation.	80
10.18 Entire Agreement.	80
10.19 Severability.	80
10.20 Confidentiality.	80
10.21 Ratable Sharing.	81
10.22 Independent Nature of Holders’ Obligations and Rights.	82
10.23 Intercreditor Agreement.	82
10.24 Third Party Beneficiaries.	83
10.25 Rules of Construction.	83

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SCHEDULES AND EXHIBITS

Schedule 1.2

Purchasers

Schedule 4.3

Corporate and Capital Structure

Schedule 4.13

FCC Licenses

Schedule 4.14

Intellectual Property

Schedule 4.15

Claims and Proceedings

Schedule 4.18

Affiliate Transactions

Schedule 4.26

Indebtedness

Schedule 4.37

SEC Compliance

Schedule 5.12

Liens

Schedule 5.13

Existing Indebtedness

Schedule 5.14(c)

Lease or Sublease Markets

Exhibit A

Form of Note

Exhibit B

Form of Account Control Agreement Amendment

Exhibit C

Form of Opinion of Company Counsel

Exhibit D

Form of Tax Matters Certificate

Exhibit E

Form of Collateral Agency Agreement

Exhibit F

Form of Guaranty

Exhibit G

Form of Security Agreement

Exhibit H

Form of Intercreditor Agreement

Exhibit I

Form of Assumption Agreement

Exhibit J

Form of Solvency Certificate

Exhibit K

Form of Second Lien Purchase Agreement

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THIRD LIEN SUBORDINATED EXCHANGE NOTE EXCHANGE AGREEMENT

THIRD LIEN SUBORDINATED EXCHANGE NOTE EXCHANGE AGREEMENT, dated as of October 9, 2008, among NextWave Wireless Inc., a corporation organized under the laws of the State of Delaware and the owner of 100% of the Capital Stock of the Company (“Parent Issuer”), NextWave Wireless LLC, a limited liability company organized under the laws of the State of Delaware (the “Company”), each Guarantor from time to time party hereto (together with the Company in its capacity as a Guarantor hereunder, each, a “Guarantor” and collectively, the “Guarantors”), the purchasers set forth in Schedule 1.2 (each, a “Purchaser” and collectively, the “Purchasers”), and The Bank of New York Mellon (“BONY”), as Collateral Agent.

The parties hereto agree as follows:

ARTICLE I

PURCHASE, SALE AND ISSUANCE OF SECURITIES

1.1

Issuance of Notes.

On the date hereof, Parent Issuer will issue to the Purchasers, $478,294,966 aggregate Stated Value of Third Lien Subordinated Secured Convertible Notes in the form attached hereto as Exhibit A (the “Notes”) in exchange for the number of shares of Series A Preferred Stock set forth on Schedule 1.2 in a transaction intended to qualify as an exchange pursuant to Section 3(a)(9) of the Securities Act. Parent Issuer will promptly pay or cause to be paid the Principal Amount of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes, and in accordance with the terms of the Intercreditor Agreement. The Notes will be exchangeable into the common stock, par value $0.001, of Parent Issuer (“Common Stock”) in accordance with the terms of the Notes.

The Notes will at all times be secured pursuant to the Collateral Documents and guarantied by the Guarantors in accordance with the terms of this Agreement. Interest will be payable on the Notes at a rate and on terms set forth in the Notes and this Agreement. The Notes 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 this Agreement and the Notes. Capitalized terms used herein without definition have the meanings assigned to them in Article IX hereof.

1.2

Sale and Purchase of the Notes; Closing.

(a) In reliance upon the Purchasers’ several representations made in Section 1.4 hereof and subject to the terms and conditions set forth in the Note Documents, Parent Issuer hereby agrees to sell to the Purchasers the Xxxxx.Xx reliance upon the representations and warranties of Parent Issuer and the Company contained in the Note Documents, and subject to the terms and conditions set forth herein and therein, the Purchasers hereby agree to purchase the Notes from Parent Issuer as described in Section 1.2(b).

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(b) The sale and purchase of the Notes to be purchased by the Purchasers will take place at a closing (the “Closing”) at 10:00 a.m., New York City time on the date hereof at the offices of O’Melveny & Xxxxx LLP at Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000. At the Closing, Parent Issuer will, subject to the terms and conditions set forth in the Note Documents, deliver to each Purchaser the Stated Value of Notes set forth with respect to such Purchaser on Schedule 1.2 (in such permitted denomination or denominations and registered in its name or the name of such nominee or nominees as such Purchaser may request) against delivery to Parent Issuer by such Purchaser of certificates representing the number of shares of Series A Preferred Stock set forth with respect to such Purchaser on such Schedule 1.2.

1.3

[RESERVED]

1.4

Purchasers’ Representations and Acknowledgement.

(a) Each Purchaser represents, severally and not jointly, that it is acquiring the Securities to be acquired by it for its own account, for investment purposes only and not with a view to any distribution thereof within the meaning of the Securities Act.

Each Purchaser further represents, agrees and acknowledges, severally and not jointly, that it:

1. is an “accredited investor” as defined in Regulation D promulgated under the Securities Act;

2. did not employ any broker or finder in connection with the transactions contemplated by this Agreement;

3. understands that the Securities have not been registered under the Securities Act and are being issued by Parent Issuer in transactions exempt from the registration requirements of the Securities Act and Parent Issuer has not undertaken to register the Securities under the Securities Act or any state or blue sky law; and

4. further understands that the exemption from registration afforded by Rule 144 (the provisions of which are known to such Purchaser) promulgated under the Securities Act depends on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts.

(b) If any Purchaser desires to sell or otherwise dispose of all or any part of the Securities (other than pursuant to Rule 144, Rule 144A or an effective registration statement under the Securities Act), if requested by Parent Issuer, it will deliver to Parent Issuer an opinion of counsel, reasonably satisfactory in form and substance to Parent Issuer, that an exemption from registration under the Securities Act is available. Upon original issuance thereof, and until such time as the same is no longer required under the applicable requirements of the Securities Act, the Securities (and all securities issued in exchange therefor, upon exercise thereof or in substitution thereof) shall bear the following legend:

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS

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AMENDED (THE “SECURITIES ACT”). THE HOLDER MAY NOT OFFER, SELL, TRANSFER, ASSIGN, PLEDGE, HYPOTHECATE, OR OTHERWISE DISPOSE OF OR ENCUMBER THE SECURITIES REPRESENTED BY THIS CERTIFICATE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE ISSUER OF THESE SECURITIES MAY REQUEST AN OPINION OF LEGAL COUNSEL FOR THE HOLDER REASONABLY SATISFACTORY TO THE ISSUER THAT ANY SUCH OFFER, SALE, TRANSFER, ASSIGNMENT, PLEDGE, HYPOTHECATION, OR OTHER DISPOSITION OR ENCUMBRANCE IS EXEMPT FROM THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER, IF SUCH OFFER, SALE, TRANSFER, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OR ENCUMBRANCE IS NOT PURSUANT TO RULE 144, RULE 144A OR AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT.

In addition, upon original issuance thereof, the Notes (and all securities issued in exchange therefor, upon exercise thereof or in substitution thereof) shall bear the following legend:

REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT DATED AS OF OCTOBER 9, 2008 (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE “INTERCREDITOR AGREEMENT”), AMONG THE COMPANY, PARENT ISSUER, THE SUBSIDIARIES OF THE COMPANY PARTY THERETO, THE BANK OF NEW YORK MELLON, AS FIRST LIEN COLLATERAL AGENT (AS DEFINED THEREIN), THE BANK OF NEW YORK MELLON, AS SECOND LIEN COLLATERAL AGENT (AS DEFINED THEREIN), AND THE BANK OF NEW YORK MELLON, AS THIRD LIEN COLLATERAL AGENT (AS DEFINED THEREIN). EACH NOTE HOLDER HEREUNDER (A) ACKNOWLEDGES THAT IT HAS RECEIVED A COPY OF THE INTERCREDITOR AGREEMENT, (B) CONSENTS TO THE PAYMENT AND LIEN SUBORDINATION PROVIDED FOR IN THE INTERCREDITOR AGREEMENT, (C) AGREES THAT IT WILL BE BOUND BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND (D) AUTHORIZES AND INSTRUCTS THE COLLATERAL AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT AS COLLATERAL AGENT AND ON BEHALF OF SUCH NOTE HOLDER. THE FOREGOING PROVISIONS ARE INTENDED AS AN INDUCEMENT TO THE NOTE HOLDERS UNDER THE FIRST LIEN PURCHASE AGREEMENT AND THE NOTE HOLDERS UNDER THE SECOND LIEN PURCHASE AGREEMENT TO EXTEND CREDIT TO THE COMPANY AND SUCH NOTE HOLDERS ARE INTENDED THIRD PARTY BENEFICIARIES OF SUCH PROVISIONS. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE

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PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THIS NOTE, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL CONTROL.

As a condition to any Person becoming a Holder, such Person shall execute and deliver an Assumption Agreement and a counterpart to the Intercreditor Agreement.

(c) Each Holder agrees, for the benefit of the other Holders only, that, in connection with the purchase of the Securities, it has relied on the representations of Parent Issuer and the Company herein, information provided by Parent Issuer and the Company, its own independent investigation of the financial condition and affairs of Parent Issuer and its Subsidiaries, and its own appraisal of the creditworthiness of Parent Issuer and its Subsidiaries. No individual Holder (or Affiliate or representative of any Holder) is acting as a financial advisor or fiduciary to any other Holder, or shall have any duty or responsibility to any other Holder, either initially or on a continuing basis. Without limiting the foregoing, no individual Holder (or Affiliate or representative of any Holder) shall have any duty or responsibility to any other Holder to make any investigation on behalf of any Holder or to provide any Holder with any credit or other information with respect to Parent Issuer and its Subsidiaries, whether coming into its possession before the purchase of the Securities, or at any time thereafter, and no Holder (or Affiliate or representative of any Holder) shall have any responsibility with respect to the accuracy or completeness of any information provided to Holders. The Holders acknowledge and agree that (i) the Holders, in such capacity, have no right to representation on the Board of Directors of Parent Issuer, the Company or any Subsidiary thereof, or to have an observer at meetings of any such Board of Directors, and that (ii) any Person affiliated or associated with an individual Holder who may serve as a member of the Board of Directors of Parent Issuer, the Company or any Subsidiary thereof is doing so in that Person’s individual capacity, not as a representative of any Holder, and, in such capacity, shall have no duty or responsibility to any Holder.

1.5

Expenses.

(a) Whether or not any of the Notes are sold, Parent Issuer and the Company will pay all reasonable costs and expenses incurred by the Holders in connection with the transactions contemplated by this Agreement, including, without limitation:

1. all reasonable out-of-pocket expenses (other than Taxes) incurred by the Purchasers in connection with the preparation, negotiation, execution and delivery of the Note Documents and all other agreements and transactions contemplated thereby, including without limitation due diligence and analysis (including as to FCC Licenses, Spectrum Leases and other Spectrum Holdings), examinations and appraisals;

2. to the extent not specifically included in clause (1) above, the reasonable fees and expenses of O’Melveny & Xxxxx LLP, who are acting as counsel to one or more Purchasers in connection with the preparation, negotiation, execution and delivery of the Note Documents and all other agreements and transactions contemplated thereby;

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3. all reasonable out-of-pocket expenses (including the fees and disbursements of counsel) incurred by the Holders in connection with any amendment, modification, waiver, consent (whether or not such amendment, waiver or consent becomes effective), or preservation or enforcement of rights under the Note Documents or any other documents contemplated hereby or thereby; and

4. such other fees (including without limitation, commitment fees) as agreed to by the Company and the Purchasers.

(b) Whether or not any of the Notes are sold, Parent Issuer and the Company will pay all reasonable costs and expenses incurred by the Collateral Agent in connection with the transactions contemplated by this Agreement, including, without limitation:

1. the costs and expenses outlined in that certain fee schedule dated as of September 17, 2008;

2. to the extent not specifically included in clause (1) above, the reasonable fees and expenses of XxXxxxx, Xxxxxxxx & Xxxxxxxx, P.C., who are acting as counsel to the Collateral Agent in connection with the preparation, negotiation, execution and delivery of the Note Documents; and

3. all reasonable out-of-pocket expenses (including the fees and disbursements of counsel) incurred by the Collateral Agent in connection with any amendment, modification, waiver, consent (whether or not such amendment, waiver or consent becomes effective), or preservation or enforcement of rights under the Note Documents or any other documents contemplated hereby or thereby.

1.6

Indemnification.

(a) In addition to all rights and remedies available to the Purchasers at law or in equity, Parent Issuer and the Guarantors (collectively, the “Indemnifying Parties”) shall jointly and severally indemnify and hold harmless the Purchasers, the Collateral Agent, each subsequent Holder and their respective affiliates, stockholders, partners, members, officers, directors, employees, agents, representatives, controlling persons, successors, heirs and assigns (collectively, the “Indemnified Parties”) and save and hold each of them harmless against and pay on behalf of or reimburse such party as and when incurred for any loss (but not including any diminution in value of the Notes), liability, demand, claim, action, cause of action, cost, damage, deficiency, penalty, fine or expense, whether or not arising out of any claims by or on behalf of Parent Issuer or any of its Subsidiaries or any third party, including interest, penalties, and reasonable attorneys’ fees and expenses of one counsel to the Indemnified Parties (or such additional counsel as may reasonably be required by reason of a conflict of interest among or between Indemnified Parties) and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively, “Losses”) which any such party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of:

1. any misrepresentation or breach of a representation or warranty on the part of any Note Party under any Note Document;

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2. without duplication of Section 1.6(a)(1) above, any misrepresentation in or omission from any of the representations, warranties, statements, schedules and exhibits hereto, certificates or other instruments or documents furnished to the Holders by or on behalf of any Note Party made in or pursuant to any Note Document;

3. any non-fulfillment or breach of any covenant or agreement on the part of any Note Party under any Note Document;

any Environmental Claim; or

5. except with respect to Taxes, any claim (whenever made) relating in any way to any Note Party and any claim (whenever made) arising out of, relating to, resulting from or caused by any transaction, status, event, condition, occurrence or situation relating to, arising out of or in connection with (A) the execution, delivery and performance of this Agreement, the other Note Documents, and the documents and agreements contemplated hereby or thereby or (B) any actions taken by or omitted to be taken by any of the Indemnified Parties in connection with any Note Document;

provided, however, that no Indemnified Party shall be entitled to such rights and remedies to the extent that such Losses occur solely as a result of the willful misconduct, or the gross negligence on the part of any Indemnified Party, as finally determined by a court of competent jurisdiction.

(b) All indemnification rights hereunder shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby without limit, regardless of any investigation, inquiry or examination made for or on behalf of, or any knowledge of the Purchasers, their advisors and/or any of the Indemnified Parties or the acceptance by Parent Issuer or the Company of any certificate or opinion, and shall inure to the benefit of any purchaser or other holder of the Notes, in accordance with the terms hereof, and notwithstanding such Person’s subsequent assignment or transfer of its Notes.

(c) If for any reason the indemnity provided for in this Section 1.6 is unavailable to any Indemnified Party or is insufficient to hold each such Indemnified Party harmless from all such Losses arising with respect to the transactions contemplated by this Agreement, then Parent Issuer and the Guarantors jointly and severally shall contribute to the amount paid or payable for such Losses in such proportion as is appropriate to reflect not only the relative benefits received by Parent Issuer and the Guarantors on the one hand and such Indemnified Party on the other but also the relative fault of Parent Issuer and the Guarantors and the Indemnified Party as well as any relevant equitable considerations. In addition, Parent Issuer and the Guarantors, jointly and severally, agree to reimburse any Indemnified Party upon demand for all reasonable expenses (including legal counsel fees) incurred by such Indemnified Party in connection with investigating, preparing or defending any such action or claim; provided, however, that such Indemnified Party is entitled to be indemnified hereunder with respect to such claim. The indemnity, contribution and expenses reimbursement obligations that Parent Issuer and the Guarantors have under this Section 1.6 shall be in addition to any liability that Parent Issuer and the Guarantors may otherwise have at law or in equity. Parent Issuer and the Guarantors further agree that the indemnification and reimbursement commitments set forth

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in this Agreement shall apply whether or not the Indemnified Party is a formal party to any such lawsuits, claims or other proceedings.

(d) Any indemnification or payments in respect of contribution of any Purchaser or any other Indemnified Party by Parent Issuer or the Guarantors pursuant to this Section 1.6 shall be effected by wire transfer of immediately available funds from Parent Issuer or any Guarantor to an account designated by such Purchaser or any other Indemnified Party within ten Business Days after the incurrence of a Loss.

1.7

Registration of Notes; etc.

(a) Parent Issuer will maintain (and make available for inspection by the Holders upon reasonable prior notice at reasonable times) at its address referred to in Section 10.1(c) a register for the recordation of, and shall record, the names and addresses of Holders (and any changes thereto), the respective amounts of the Notes of each Holder from time to time and the amount that is due and payable, and paid, to each Holder (the “Register”). Promptly following the Closing and each subsequent change to the Register, Parent Issuer shall provide a copy of the Register to the Collateral Agent. Parent Issuer and the Company shall deem and treat the Persons listed as Holders in the Register as the holders and owners of the corresponding Notes listed therein for all purposes of this Agreement; all amounts owed with respect to any Note shall be owed to the Holder listed in the Register as the owner thereof; and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Holder shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Notes. Each Holder shall record on its internal records the amount of its Notes and each payment in respect thereof, and any such recordation shall be conclusive and binding on Parent Issuer, absent manifest error, subject to the entries in the Register, which shall, absent manifest error, govern in the event of any inconsistency with any Holder’s records. Failure to make any recordation in the Register or in any Holder’s records, or any error in such recordation, shall not affect any Notes or any obligation thereunder.

(b) Subject to Section 10.2, a Holder may transfer a Note to a new Holder only by surrendering such Note to Parent Issuer duly endorsed for transfer or accompanied by a duly executed instrument of transfer naming the new Holder (or the current Holder if submitted for exchange only).

(c) Upon surrender for registration of transfer of any Notes, Parent Issuer, at its expense, will xxxx the surrendered Notes as canceled, and Parent Issuer will execute and deliver, in the name of the designated transferee or transferees, one or more new Notes of the same type, and of a like aggregate Principal Amount. Each such new Note shall be payable to such Person as such holder may request and shall be substantially in the form of Exhibit A. Each such new Note shall be dated as of, and bear interest from, the date to which interest shall have been paid on the surrendered Note, or dated as of the date of the surrendered Note if no interest shall have been paid thereon. Notes shall not be transferred in denominations of less than $1,000,000; provided that if necessary to enable the registration of transfer by a Holder of its entire holding of Notes, one Note may be in a denomination of less than $1,000,000. Promptly upon the transfer of any Note, Parent Issuer shall provide written notice of such transfer to the

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Collateral Agent, including the date of such transfer, the amount of Note or Notes transferred and the name of and payment instructions for the transferee.

(d) Notes may be exchanged at the option of any Holder thereof for Notes of a like aggregate Principal Amount, as applicable, but in different denominations. Whenever any Notes are so surrendered for exchange, Parent Issuer, at its expense, will xxxx the surrendered Notes as canceled, and Parent Issuer will execute and deliver the Notes that the Holder making the exchange is entitled to receive.

(e) All Notes issued upon any registration of transfer or exchange of such Notes will be the legal and valid obligations of Parent Issuer, evidencing the same interests, and entitled to the same benefits, as the Notes surrendered upon such registration of transfer or exchange.

(f) Every Note presented or surrendered for registration of transfer or exchange will (if so required) be duly endorsed or will be accompanied by a written instrument of transfer in form reasonably satisfactory to Parent Issuer, duly executed by the Holder thereof or its attorney duly authorized in writing.

(g) Upon receipt of a Note pursuant to clause (b) or (d) above and any forms, certificates or other evidence with respect to Tax matters that the new Holder may be required to deliver Parent Issuer pursuant to Section 1.8, Parent Issuer will record the relevant information in the Register.

(h) Any transfer of any of the Notes is subject to Section 1.4(b) hereof and will not be valid unless and until such transfer is recorded in the Register.

1.8

Tax Matters.

(a) Any and all payments by or on behalf of Parent Issuer or any Guarantor hereunder or under the Notes or the other Note Documents that are made to or for the benefit of a Holder shall be made free and clear of, and without deduction or withholding on account of, any Taxes. If Parent Issuer or any Guarantor or any other Person on behalf of Parent Issuer or any Guarantor shall be required by law to deduct or withhold any Taxes from or in respect of any sum payable hereunder or under any Note or any other Note Document to a Holder:

1. Parent Issuer shall notify such Holder of any such requirement or any change in any such requirement as soon as it becomes aware of it;

2. Parent Issuer shall timely pay any such Tax to the relevant Governmental Authority when such Tax is due, in accordance with Applicable Law;

3. unless such Tax is an Excluded Tax, the sum payable shall be increased to the extent necessary to ensure that, after making the required deductions (including deductions applicable to additional sums payable under this clause), each Holder receives on the due date a net sum equal to the sum it would have received had no such deduction been required or made; and

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4. within 30 days after Parent Issuer receives a receipt of payment of any Tax which Parent Issuer is required by clause (2) above to pay, shall deliver to the applicable Holder the original or a certified copy of an official receipt or other satisfactory evidence of the payment and its remittance to the relevant Governmental Authority.

(b) In addition, without limiting the provisions of paragraph (a) above, Parent Issuer agrees to timely pay any Other Taxes to the relevant Governmental Authority in accordance with Applicable Law and within thirty (30) days after Parent Issuer receives a receipt for payment of any such Taxes, Parent Issuer shall furnish to the applicable Holder a copy of such receipt.

(c) Parent Issuer will indemnify each Holder, within 10 days after demand therefor, for the full amount of any Covered Taxes or Other Taxes (including for the full amount of any Covered Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 1.8(c)) paid by such Holder, as the case may be, and any penalties (other than penalties imposed by reason of such Holder’s gross negligence or willful misconduct), interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Covered Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Parent Issuer by a Holder shall be conclusive absent manifest error.

(d) If a Holder receives a refund of any Covered Taxes or Other Taxes as to which it has been indemnified by Parent Issuer or with respect to which Parent Issuer paid additional amounts pursuant to this Section 1.8, it shall pay to Parent Issuer an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by Parent Issuer pursuant to this Section 1.8 with respect to the Covered Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of such Holder and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided, however, that Parent Issuer, upon the request of such Holder, agrees to repay to such Holder the amount paid over to Parent Issuer in the event that such Holder is required to repay such refund to such Governmental Authority.

(e)

Unless not legally entitled to do so:

1. each Holder shall deliver such forms or other documentation prescribed by Applicable Law or reasonably requested by Parent Issuer as will enable Parent Issuer to determine whether or not such Holder is subject to backup withholding or information reporting requirements;

2. any Holder that is entitled to an exemption from or reduction of any Tax with respect to payments hereunder or under the Notes or any other Note Document shall deliver to Parent Issuer, on or prior to the date on which such Holder becomes a Holder under this Agreement (and from time to time thereafter, as may be necessary in the determination of Parent Issuer, in the reasonable exercise of its discretion), such properly completed and duly executed forms or other documentation prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding;

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3. without limiting the generality of the foregoing, any Holder shall deliver to Parent Issuer (in such number of copies as shall be reasonably requested by Parent Issuer) on or prior to the date on which such Holder becomes a Holder under this Agreement (and from time to time thereafter, as may be necessary in the determination of Parent Issuer, in the reasonable exercise of its discretion), whichever of the following is applicable:

(A)

unless such Holder has otherwise established to the reasonable satisfaction of Parent Issuer that it is an “exempt recipient” (as defined in Section 6049(b)(4) of the Code and the United States Treasury Regulations thereunder), properly completed and duly executed copies of Internal Revenue Service Form W-9,

(B)

properly completed and duly executed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party,

(C)

properly completed and duly executed copies of Internal Revenue Service Form W-8ECI,

(D)

in the case of a Holder claiming the benefits of the exemption for “portfolio interest” under Section 881(c) of the Internal Revenue Code, (A) a duly executed certificate in the form of Exhibit D hereto to the effect that such Holder is not (i) a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (ii) a ten-percent shareholder (within the meaning of Sections 881(c)(3)(B) or 871(h)(3)(B) of the Internal Revenue Code) of Parent Issuer, or (iii) a controlled foreign corporation described in Section 881(c)(3)(C) of the Internal Revenue Code and (B) properly completed and duly executed copies of Internal Revenue Service Form W-8BEN, and

(E)

properly completed and duly executed copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in any Tax,

in each case together with such supplementary documentation as may be prescribed by Applicable Law to permit Parent Issuer to determine the withholding or deduction required to be made, if any.

(f) Without limiting the generality of the foregoing, each Holder hereby agrees, from time to time after the initial delivery of such forms, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence so delivered obsolete or inaccurate in any material respect, that such Holder shall promptly (1) deliver to Parent Issuer two original copies of renewals, amendments or additional or successor forms, properly

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completed and duly executed by such Holder, together with any other certificate or statement of exemption required in order to confirm or establish that such Holder is entitled to an exemption from or reduction of any Tax with respect to payments to such Holder under the Note Documents, or (2) notify Parent Issuer of its inability to deliver any such forms, certificates or other evidence.

(g) Any Holder claiming any additional amounts payable pursuant to this Section 1.8 shall use its reasonable best efforts to change the jurisdiction of its lending office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that would be payable or may thereafter accrue and would not be otherwise materially disadvantageous to such Holder.

(h) Parent Issuer has determined, in accordance with Section 1.1441-3(c)(2)(ii) of the Income Tax Regulations, that it does not reasonably expect to have any current or accumulated earnings and profits for its taxable year that includes the Closing. Parent Issuer agrees, to the extent applicable, to elect not to withhold in connection with the sale and purchase described in Section 1.2 hereof pursuant to Section 1.1441-3(c)(2)(i) of the Income Tax Regulations and all comparable provisions of state and local tax law.

(i) The obligations of Parent Issuer under this Section 1.8 shall survive the payment of the Notes and the termination of this Agreement.

ARTICLE II

CLOSING CONDITIONS

2.1

Closing Conditions.

The obligations of the Purchasers to purchase and pay for the Notes shall be subject to the satisfaction of each of the following conditions on or before the date hereof:

(a)

[RESERVED]

(b) Opinion of Counsel. The Purchasers and the Collateral Agent shall have received opinions in form and substance satisfactory to the Purchasers and the Collateral Agent, dated as of the date hereof from Weil, Gotshal & Xxxxxx LLP or, with respect to the FCC Licenses and related matters, Xxxxxx Xxxxx, LLP,eachcounsel for Parent Issuer and the Guarantors, covering the matters set forth on Exhibit C with respect to Parent Issuer and the Guarantors, and covering such other matters incident to the transactions contemplated hereby as the Purchasers and the Collateral Agent may reasonably request.

(c) Representations and Warranties True. The representations and warranties of Parent Issuer, the Company and the other Guarantors contained in this Agreement are true and correct in all material respects on and as of the date hereof (or, to the extent such representations and warranties specifically relate to an earlier date, that such representations and warranties were true, correct and complete on and as of such earlier date).

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(d) Compliance with this Agreement; No Default. After giving effect to the transactions contemplated by this Agreement, (i) no Default or Event of Default shall have occurred and be continuing hereunder, (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, and (iii) no Default or Event of Default (each as defined under the Second Lien Documents) shall have occurred and be continuing under the Second Lien Documents.

(e) Delivered Documents. On or before the date hereof, each of Parent Issuer and the Guarantors shall deliver to the Purchasers with respect to Parent Issuer or such Guarantor, as the case may be, each, unless otherwise noted, dated as of the date hereof:

1. Note Documents; etc. Copies of the Note Documents and the Intercreditor Agreement duly executed by each party thereto (other than the Purchasers).

2. Officer’s Certificate. A certificate, dated as of the date hereof and signed by a Responsible Officer of Parent Issuer and a Responsible Officer of the Company, certifying that the conditions set forth in this Article II have been satisfied on and as of such date.

3. Secretary’s Certificate. A certificate, dated as of the date hereof and signed by the Secretary of Parent Issuer and the Secretary of each Guarantor, certifying as to the Board of Directors and other resolutions and Organizational Documents attached thereto and as to all other corporate or other organizational proceedings relating to the authorization, execution and delivery of the Notes, the Note Documents and the Intercreditor Agreement.

4. Good Standing Certificates. A good standing certificate from the Secretary of State of such Person’s 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 as of a recent date prior to the date hereof.

5. Incumbency Certificates. Signature and incumbency certificates of the officers of each Person executing the Note Documents, and any other documents, instruments and certificates required to be executed by such Person in connection herewith or therewith.

6. Other Documents. Such other documents or certificates as the Purchasers or the Collateral Agent may reasonably request.

(f) Issuance of Notes. Pursuant to Section 1.2 hereof, Parent Issuer shall have issued and delivered the $478,294,966 aggregate Stated Value of Notes to the Purchasers.

(g) Governmental Authorizations; No Violation. Parent Issuer and the Guarantors shall have received all material Governmental Authorizations (including any required Governmental Authorizations from the FCC) and sent or made all material notices, filings, registrations and qualifications required to be obtained, sent or made in connection with the consummation of the Transactions. The consummation by Parent Issuer and the Guarantors of the Transactions shall not materially contravene, violate or conflict with any Applicable Law.

(h)

[RESERVED]

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(i) Payment of Fees and Expenses. Parent Issuer and the Company shall have paid the fees and expenses referred to in Section 1.5.

(j) Purchase Permitted by Applicable Laws; Legal Investment. Each Purchaser’s purchase of and payment for the Notes to be purchased by it (i) shall not be prohibited by any Applicable Law or governmental regulation; and (ii) shall be permitted by the laws and regulations of the jurisdictions to which it is subject.

(k) Security Interests in Collateral. The Purchasers shall have received evidence satisfactory to the Purchasers and the Collateral Agent that Parent Issuer and the Guarantors shall have taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings that may be necessary or, in the opinion of the Purchasers or the Collateral Agent, desirable in order to create in favor of the Collateral Agent for the benefit of the Holders a valid and perfected Third Priority security interest in the entire Collateral in accordance with the Collateral Documents. Such actions shall include, without limitation, the following:

1. Stock Certificates. Delivery to the Purchasers of a confirmation from First Lien Collateral Agent that it is in receipt of certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to the Purchasers and the Collateral Agent) representing all Capital Stock pledged pursuant to the First Lien Security Agreement.

2. Searches and UCC Termination Statements. Delivery to the Collateral Agent of (i) the results of a recent search, by a Person satisfactory to the Purchasers, of all effective UCC financing statements and fixture filings and all judgment and tax lien filings which may have been made with respect to any personal property of the Company and any of the Guarantors, together with copies of all such filings disclosed by such search, and (ii) termination statements duly executed by all applicable Persons and filed in all applicable jurisdictions necessary to terminate any effective UCC financing statements or fixture filings disclosed in such search (other than any such financing statements or fixture filings in respect of Liens permitted to remain outstanding pursuant to the terms of this Agreement); and

3. UCC Financing Statements. Delivery to the Collateral Agent of UCC financing statements with respect to all Collateral of Parent Issuer and each Guarantor, filed in all jurisdictions necessary or, in the opinion of the Purchasers, desirable to perfect the security interests created in such Collateral pursuant to the Collateral Documents.

(l)

[RESERVED]

(m)

[RESERVED]

(n)

[RESERVED]

(o) First Lien Noteholders; First Lien Documents. The “Required Holders” (as defined in the First Lien Purchase Agreement) shall have (i) consented to the issuance of the Notes on the terms and conditions contained in this Agreement and the other Note Documents,

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the performance of each Note Party’s obligations hereunder and thereunder, and any other Transactions, and shall have entered into any necessary amendments to the First Lien Documents to reflect such consent, and (ii) executed and delivered an amendment to the First Lien Documents (A) providing that all “Net Proceeds” (as defined in the First Lien Purchase Agreement) from any “Asset Sales” (as defined in the First Lien Purchase Agreement) be used to immediately repay the First Lien Notes, (B) modifying Section 5.13(g) of the First Lien Purchase Agreement to conform to the terms of Section 5.13(g) of the Second Lien Purchase Agreement, and (C) making such other modifications as the “Required Holders” (as defined in the First Lien Purchase Agreement) and the Company may mutually agree to.

(p) Fairness Opinion. The Purchasers and the Collateral Agent shall have received a copy of an opinion dated as of the date hereof, rendered to the Finance Committee of the Board of Directors of Parent Issuer from The Bank Street Group LLC, (i) stating that the Transactions, taken as a whole, are fair to Parent Issuer from a financial point of view.

(q) Solvency Opinion. The Purchasers and the Collateral Agent shall have received a copy of an opinion dated as of the date hereof, from Valuation Research Company rendered to the Finance Committee of the Board of Directors of Parent Issuer, 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, Parent Issuer and the Company, each individually, and Parent Issuer and its Subsidiaries, taken as a whole on a consolidated basis, are, and will be Solvent.

(r)

[RESERVED]

(s)

[RESERVED]

(t)

[RESERVED]

(u) Second Lien Notes. The Company shall have issued and delivered the Second Lien Notes in accordance with the terms of the Second Lien Documents.

(v) Anti-Money Laundering Laws. Purchasers shall have received from Parent Issuer and the Guarantors all documentation and other information required or requested by any Governmental Authority under applicable “know your customer” and anti-money-laundering rules and regulations, including the Anti-Money Laundering Laws.

(w) Solvency Certificate. Purchasers and the Collateral Agent shall have received a Solvency Certificate from Parent Issuer and the Company dated as of the date hereof 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, Parent Issuer and the Company, each individually, and Parent Issuer and its Subsidiaries, taken as a whole on a consolidated basis, are, and will be Solvent.

(x)

[RESERVED]

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Notwithstanding anything to the contrary in this Article II, with respect to the conditions precedent referenced, the Collateral Agent shall not be responsible for determining the satisfaction of such conditions precedent, or liable for any failure thereof.

ARTICLE III

HOLDERS’ SPECIAL RIGHTS

Parent Issuer and the Company hereby agree to grant to each Holder the following special rights:

3.1

Service Charges.

No service charge shall be made for any registration of transfer or exchange of the Notes.

3.2

Direct Payment.

(a) Parent Issuer and the Company will pay or cause to be paid all amounts payable in cash with respect to any Note (without any presentment of such Note and without any notation of such payment being made thereon) by crediting (before 3:00 p.m., New York time on the date when due in accordance with this Agreement and the Note), by intra-bank or federal funds wire transfer to each Holder’s account in any bank in the United States as may be designated and specified in writing by such Holder at least two Business Days prior to the applicable payment. Each Purchaser’s initial bank account for this purpose is on such Purchaser’s signature page hereto, and if no notice is given pursuant to the previous sentence hereof, such transfer shall be made to such initial bank account.

(b) Notwithstanding anything to the contrary contained in the Notes, if any amount payable with respect to a Note is payable on a Legal Holiday, then Parent Issuer and the Company will pay such amount on the next succeeding Business Day, and interest will accrue on such amount up to, but excluding, the date on which such amount is paid and payment of such accrued interest will be made concurrently with the payment of such amount; provided that Parent Issuer or the Company may elect to pay in full (but not in part) any such amount on the last Business Day prior to the date such payment otherwise would be due, and no such additional interest will accrue on such amount.

3.3

Lost, etc. Notes.

Notwithstanding any provision in any Note Document to the contrary, if any Note is mutilated, destroyed, lost or stolen, then the affidavit of the Holder’s treasurer or assistant treasurer (or other authorized officer), briefly setting forth the circumstances with respect to such mutilation, destruction, loss or theft, will be accepted as satisfactory evidence thereof, and no indemnity, security or payment of charges or expenses will be required as a condition to the execution and delivery by Parent Issuer or the transfer agent, as the case may be, with respect to such Note, of new Notes for a like amount, in substitution therefor, other than such Purchaser’s or such Holder’s reasonably satisfactory unsecured written agreement to indemnify Parent Issuer or the transfer agent, as the case may be.

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3.4

Inspection.

Following the Closing, Parent Issuer and the Company (a) will allow the Holders the right, during normal business hours and upon reasonable prior notice, to visit and inspect any of the offices, to examine all their books of account, records, reports and other papers, to make copies and extracts therefrom and to discuss their respective affairs, finances and accounts with the designated representatives and officers of Parent Issuer and the Guarantors (and by this provision, Parent Issuer and the Guarantors authorize their officers to discuss the affairs, finances and accounts of Parent Issuer and the Guarantors), all at such times and as often as may be reasonably requested, but not more frequently than twice per Fiscal Year unless an Event of Default has occurred and is continuing, and (b) authorizes its public accountants to discuss the affairs, finances and accounts of Parent Issuer and the Guarantors, in each case, subject to any limitations imposed by law or by confidentiality agreements binding on Parent Issuer or the relevant Guarantor and excluding materials subject to attorney-client privilege or attorney work product. The costs and expenses of such inspections will be paid by the Holders, provided that if an Event of Default then exists, such costs and expenses incurred by the Holders will be paid by Parent Issuer and the Guarantors. The Company shall be entitled to participate in or observe all such visits, inspections, examinations and discussions.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Parent Issuer and the Guarantors hereby, jointly and severally, represent and warrant on and as of the date hereof and immediately after giving effect to the Transactions, that:

4.1

Organization, Powers.

Parent Issuer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Each Guarantor that is a corporation is duly incorporated, validly existing and in good standing under the laws of its state of incorporation. Each Guarantor that is a partnership or limited liability company is duly organized and a validly existing partnership or limited liability company, as the case may be, under the laws of its jurisdiction of formation and is in good standing in such jurisdiction. Each of Parent Issuer and the Guarantors has all requisite corporate, partnership or limited liability company power and authority, as applicable, to own and operate its respective properties and to carry on its respective business as now conducted and as proposed to be conducted, to enter into this Agreement and the other Note Documents, to carry out the transactions contemplated hereby and thereby and, in the case of Parent Issuer, to issue and deliver the Securities and pay the obligations incurred under the Note Documents, and, in the case of each Guarantor, to issue its respective Guaranty and enter into the Collateral Documents to which it is a party.

4.2

Qualification and Good Standing.

Parent Issuer and each of the Guarantors is qualified or authorized to do business and is in good standing in the jurisdiction of its organization and in every other jurisdiction where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect.

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4.3

Company and Subsidiaries; Capitalization.

The SEC Documents set forth a true and correct list of the holders of 5% or more of the Capital Stock of Parent Issuer and its Subsidiaries as of the date of Parent Issuer’s most recent Schedule 14A filing. As of the date hereof, Parent Issuer has the number of authorized, issued and outstanding shares of common stock and preferred stock (including the Series A Preferred Stock) as set forth on Schedule 4.3. As of the date hereof, all of the issued and outstanding Capital Stock of Parent Issuer has been duly authorized, validly issued and is fully paid and nonassessable. As of the date hereof, all of the issued and outstanding Capital Stock of the Company has been duly authorized, validly issued and is fully paid and nonassessable, and all of such Capital Stock of the Company is owned by Parent Issuer. Schedule 4.3 sets forth a true and correct list of every Subsidiary of Parent Issuer as of the date hereof. Each such Subsidiary is, directly or indirectly, 100% owned by Parent Issuer, except as otherwise described in the SEC Documents. Except as set forth in the SEC Documents, as of the date hereof, there are no pre-emptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, employee stock plans or other similar agreements or understandings for the purchase or acquisition of any shares of Capital Stock or other securities of Parent Issuer or any of its Subsidiaries. The Guarantors constitute all of the License Subsidiaries and Material Subsidiaries.

4.4

Due Authorization.

The execution, delivery and performance of the Note Documents, the issuance and delivery of the Securities and the Guaranties, and the consummation of the Transactions have been duly authorized by all necessary corporate, limited liability company and/or partnership action, as applicable, on the part of Parent Issuer and each of the Guarantors.

4.5

No Conflict.

The execution, delivery and performance by Parent Issuer and each Guarantor of the Note Documents, including the issuance and delivery of the Securities and the Guaranties, as applicable, and the consummation of the Transactions do not and will not (i) violate any provision of any law or any governmental rule or regulation applicable to Parent Issuer or any of the Guarantors, or violate any Organizational Documents of the Company or any of the Guarantors, (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.

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4.6

Governmental Consents.

The execution, delivery and performance by each Note Party of the Note Documents, the issuance and delivery of the Securities and the Guaranties, as applicable, and the consummation of the Transactions 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.

4.7

Binding Obligations.

(a) On and as of the date hereof, each Note Document has been duly executed and delivered by each Note Party party thereto and is the legally valid and binding obligation of each Note Party party thereto, enforceable against such Note Party 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.

(b) The Notes have been duly authorized by Parent Issuer and when executed and authenticated, will be entitled to the benefits of this Agreement and will constitute the legally valid and binding obligations of Parent Issuer, enforceable against Parent Issuer in accordance with their 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.

4.8

No Default; Contracts and Spectrum Leases.

(a)

[RESERVED]

(b) As of the date hereof, neither Parent Issuer nor any of the Guarantors is in default in the payment or performance of any of its Material Contracts or Spectrum Leases or has received any notice of default thereunder, and no such default has occurred or will occur as a result of the execution and delivery of the Note Documents and consummation of the Transactions. Each of Parent Issuer and the Company has no knowledge of any event which, upon the giving of notice or the passage of time, or both, would give rise to any default in the performance by it or, to its knowledge, any other party thereto, of any obligation under any Material Contract or Spectrum Lease.

(c) Subsidiaries of the Company are the sole owners and holders of all of the leasehold or license interests granted by each Spectrum Lease. As of the date hereof, each Material Contract and Spectrum Lease is in full force and effect, constituting valid and binding obligations of the parties thereto and enforceable in accordance with their respective terms. As of the date hereof, neither Parent Issuer nor any of its Subsidiaries has received any notice that any party to any of the Material Contracts or Spectrum Leases intends to cancel or terminate any such Material Contract or Spectrum Lease.

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4.9

[RESERVED]

4.10

Financial Condition.

(a) The audited consolidated balance sheet of Parent Issuer and its Subsidiaries set forth in Parent Issuer’s most recently filed Annual Report on Form 10-K, and the related audited consolidated statements of income or operations, shareholders’ equity and cash flows for the Fiscal Year ended on that date, were prepared in accordance with GAAP consistently applied throughout the respective periods covered thereby, fairly present, in all material respects, the financial condition of such Persons as at the dates indicated and the results of their operations and their cash flows for the periods indicated, except as otherwise indicated therein.

(b) The unaudited consolidated balance sheets of Parent Issuer and its Subsidiaries included in Parent Issuer’s most recently filed Quarterly Report on Form 10-Q as at the end of each Fiscal Quarter ended more than 45 days prior to the date hereof, consisting of a consolidated balance sheet and the related consolidated statements of income and cash flows for the periods indicated were prepared in accordance with GAAP consistently applied throughout the respective periods covered thereby, and certified by the chief financial officer of Parent Issuer that they fairly present, in all material respects, the financial condition of Parent Issuer and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments, except for the absence of footnotes and as otherwise expressly noted therein.

4.11

No Material Adverse Change; Absence of Undisclosed Liabilities.

Since June 28, 2008, except as disclosed in the SEC Documents and except as set forth on Schedule 4.11, no event or change has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. Except as set forth in the financial statements referred to in Section 4.10, since June 28, 2008, neither Parent Issuer nor any of its Subsidiaries has incurred any obligations or liabilities that would be required to be reflected on a balance sheet or the notes prepared thereto in accordance with GAAP consistently applied, other than obligations or liabilities incurred in the ordinary course of business.

4.12

Title to Collateral; Properties; Liens.

As of the date hereof, Parent Issuer and each of the Guarantors have (i) good title to its Collateral, (ii) good and marketable title in fee simple to all real property owned by it which is material to the business of Parent Issuer and its Subsidiaries and (iii) good title to or valid leasehold interests in all of its personal property which is material to the business of Parent Issuer and its Subsidiaries. Upon the completion of the Transactions, the Collateral Agent has and shall continue to have a Third Priority Lien in and to the Collateral; provided that if no First Lien Obligations are outstanding such Lien held by the Collateral Agent shall have priority over all other Liens in and to such Collateral (other than any Second Priority Liens and any Permitted Liens); and provided further that if no First Lien Obligations or Second Lien Obligations are outstanding such Lien held by the Collateral Agent shall have priority over all other Liens in and

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to such Collateral (other than any Permitted Liens). Except as permitted by this Agreement, all such properties and assets are free and clear of Liens.

4.13

FCC Licenses.

(a) Schedule 4.13 contains a true and complete list, as of the date of this Agreement, of (i) each FCC License which the FCC has issued to Parent Issuer or any of its Subsidiaries, identifying the holder of each such FCC License and (ii) all material pending applications filed with the FCC by Parent Issuer or any of its Subsidiaries. Except as set forth on Schedule 4.13, neither Parent Issuer nor any of its Subsidiaries has any Foreign Spectrum Holdings as of the date hereof.

(b) As of the date hereof, (i) each of the FCC Licenses issued to Parent Issuer or any of its Subsidiaries is valid, binding, in full force and effect, and enforceable by Parent Issuer or any of its Subsidiaries party thereto in accordance with its terms; (ii) Parent Issuer or any Subsidiary of Parent Issuer that is the holder of each such FCC License has performed all accrued obligations thereunder in all material respects and has not received written notice of intention to terminate any FCC License or written notice alleging a material default (other than letters of default that have been rescinded or with respect to defaults that have been cured or waived); (iii) no event caused by, relating to or affecting Parent Issuer or any Subsidiary of Parent Issuer that is the holder of an FCC License has occurred which (with or without the giving of notice or lapse of time, or both) would constitute a material default or material breach by Parent Issuer or any Subsidiary of Parent Issuer party of the terms of such FCC License, the Communications Act or the FCC Rules, (iv) neither Parent Issuer nor any its Subsidiaries has modified any of the material terms of any FCC License held by Parent Issuer or any of its Subsidiaries and (v) to the knowledge of Parent Issuer and the Company, no holder of an Underlying License is in breach or default in any material respect thereunder and no event caused by, relating to or affecting any holder of an Underlying License has occurred which (with or without the giving of notice or lapse of time, or both) would constitute a material default or material breach by such party of the terms of such Underlying License, the Communications Act or the FCC Rules. Neither Parent Issuer nor the Company has entered into any agreement, written or oral, or made any commitment to enter into any such agreement, pursuant to which Parent Issuer or the Company would accept any interference other than such interference contemplated by the applicable FCC Licenses, Underlying Licenses and FCC Rules, or to permit any additional signals in the Geographic Service Area covered by such FCC Licenses or Underlying Licenses and, to Parent Issuer and the Company’s knowledge, there is not any such interference or additional signal.

(c) Neither Parent Issuer nor any of its Subsidiaries is a party to or has knowledge of any investigation, notice of apparent liability, violation, forfeiture or other order or complaint issued by or before any court or regulatory body, including the FCC, or of any other proceedings which could in any manner threaten or adversely affect the validity or continued effectiveness of the FCC Licenses of any such Person or give rise to any order of forfeiture or could otherwise reasonably be expected to have a Material Adverse Effect. Neither Parent Issuer nor any of its Subsidiaries has any reason to believe that the FCC Licenses issued to Parent Issuer or any of its Subsidiaries will not be renewed in the ordinary course. Parent Issuer and each of its Subsidiaries have filed in a timely manner all material reports, applications,

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documents, instruments and information required to be filed by it pursuant to the FCC Rules. No licenses, authorizations, permits or other rights other than the FCC Licenses are required under the Communications Act or the FCC Rules to operate the respective businesses of Parent Issuer and the Company in substantially the manner it is being operated as of the date hereof.

4.14

Intellectual Property.

(a) Parent Issuer and the Guarantors own (or have valid licenses with respect to) all right, title and interest in and to all trademarks and service marks, tradenames, patents, copyrights and trade secrets identified on Schedule 4.14 (collectively, the “Intellectual Property”)(other than pending patent applications and any docketed disclosures), free and clear of all Liens, other than Liens permitted pursuant to Section 5.12(a). Except for Intellectual Property relating to WiMAX technology, as to which no representation is made herein, the Intellectual Property constitutes all such property as is material to the conduct of the business of Parent Issuer and the Guarantors. All material Intellectual Property (other than pending patent applications and any docketed disclosures) is subsisting, in full force and effect, and is valid and enforceable.

(b) As of the date hereof, none of the owned or licensed Intellectual Property is subject to any outstanding order, ruling decree, judgment or stipulation to which Parent Issuer or any of its Subsidiaries is or has been made a party.

(c) Except as set forth on Schedule 4.14, as of the date hereof, there are no agreements or arrangements (including covenants not to xxx, non-assertion, settlement or similar agreements or consents) to which Parent Issuer or any of its Subsidiaries is a party (i) pursuant to which any of the owned Intellectual Property has been licensed to or used by any Person other than Parent Issuer or any of its Subsidiaries, or which permits use by any such other Person; or (ii) that restrict the rights of Parent Issuer or any of its Subsidiaries to use or enforce any of the owned Intellectual Property.

(d) To the knowledge of Parent Issuer and the Company, the conduct of the business of Parent Issuer and its Subsidiaries does not infringe upon, misappropriate or otherwise violate the Intellectual Property rights of any other Person, except that no representation or warranty is made relating to the development of the Company’s WiMAX technology and products. Except as set forth on Schedule 4.15, as of the date hereof, no claim or demand of any Person against Parent Issuer or its Subsidiaries has been made, nor is there any proceeding that is pending or to the knowledge of Parent Issuer or the Company threatened, which (in any such case) (i) challenges the rights of Parent Issuer or its Subsidiaries in respect of any Intellectual Property or (ii) asserts that Parent Issuer or any of its Subsidiaries is infringing or otherwise in conflict with, or is required to pay any royalty, license fee, charge or other amount with regard to, any Intellectual Property.

(e) Except as set forth on Schedule 4.15, as of the date hereof, to the knowledge of Parent Issuer and the Company, no Person is infringing upon or misappropriating, or has infringed upon or misappropriated (i) any owned Intellectual Property or the rights of Parent Issuer or any of its Subsidiaries in any owned Intellectual Property or (ii) any Intellectual

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Property licensed to Parent Issuer or any of its Subsidiaries or the rights of Parent Issuer or any of its Subsidiaries therein.

(f) Except to the extent Parent Issuer or the Company, in its commercially reasonable judgment, has determined otherwise, the Intellectual Property capable of such registration, filing or issuance has been duly registered with, filed in or issued by, as the case may be, the United States Patent and Trademark Office or the United States Copyright Office.

(g) All material licenses of Intellectual Property to Parent Issuer and each of its Subsidiaries are valid and enforceable.

4.15

Litigation; Adverse Facts.

Except as set forth on Schedule 4.15, as of the date hereof, there is no action, suit, proceeding, arbitration or governmental investigation at law or in equity or before or by any Governmental Authority pending or, to the best knowledge of Parent Issuer and the Company, threatened, in writing against or affecting Parent Issuer or any of its Subsidiaries or any property of Parent Issuer or any of its Subsidiaries, which, either singly or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. Neither Parent Issuer nor any of its Subsidiaries is (i) in material violation of any Applicable Law or (ii) subject to or in default with respect to any final judgment, writ, injunction, decree, rule or regulation of any Governmental Authority binding on Parent Issuer or any of its Subsidiaries.

4.16

Payment of Taxes.

All returns and reports of Parent Issuer and its Subsidiaries required to be filed by any of them with respect to material Taxes have been timely filed (or extended), and all material Taxes imposed upon Parent Issuer or its Subsidiaries and upon their respective properties, assets, income, businesses and franchises which are due and payable have been timely paid other than those which are being contested by Parent Issuer or any such Subsidiary in good faith and by appropriate proceedings promptly instituted and diligently conducted and for which reserves or other appropriate provisions, if any, as may be required in conformity with GAAP shall have been made or provided therefor. There is no audit or assessment of a material Tax proposed in writing against Parent Issuer or any of its Subsidiaries as of the date of this representation other than those which are being contested by Parent Issuer or any such Subsidiary in good faith and by appropriate proceedings and for which reserves or other appropriate provisions, if any, as may be required in conformity with GAAP shall have been made therefor. Neither Parent Issuer nor the Company is a “United States real property holding corporation” within the meaning of Section 897 of the Code. The Company is disregarded as separate from Parent Issuer for Federal income tax purposes and local income tax purposes. Parent Issuer is taxable as a corporation for Federal income tax purposes.

4.17

Compliance With Laws; Governmental Authorizations; Insurance.

(a) Parent Issuer and each of its Subsidiaries has obtained all Governmental Authorizations required for the conduct of its business substantially as described in Parent Issuer’s most recently filed Annual Report on Form 10-K. Parent Issuer and each of its Subsidiaries is in compliance with all such Governmental Authorizations and all Applicable

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Laws, and all such Governmental Authorizations are in full force and effect, except to the extent that noncompliance, or the failure to be in full force and effect, could not reasonably be expected to have a Material Adverse Effect. No violations have been recorded in respect of any such Governmental Authorization, and no proceeding is pending or, to the knowledge of Parent Issuer and the Guarantors, threatened to revoke or limit any Governmental Authorization. All (i) Spectrum Holdings, including all FCC Licenses, and (ii) Spectrum Leases, by their terms and as performed and conducted by the parties thereto, are in compliance in all material respects with all Applicable Laws, including the Communications Act and the FCC Rules. With respect to all Spectrum Leases that require Governmental Authorization, including the authorization of the FCC, as of the date hereof Parent Issuer, the Company or the holder of the applicable Underlying Licenses has obtained such Governmental Authorization and such Governmental Authorization is in full force and effect, except as disclosed in the SEC Documents.

(b) Parent Issuer and its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts and with such deductibles as is customary in the business in which Parent Issuer and its Subsidiaries are engaged and which management of Parent Issuer believes to be prudent. All policies for such insurance are in full force and effect and all premiums due thereon have been paid. Neither Parent Issuer nor any of its Subsidiaries has been refused any insurance coverage that is material to the business of Parent Issuer and its Subsidiaries and that has been sought or applied for, and neither Parent Issuer nor any such Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.

4.18

Affiliate Transactions.

Except as specifically disclosed in the SEC Documents, there have not been any material transactions or loans (including guarantees of any kind) between Parent Issuer or any of its Subsidiaries and (i) other Persons that directly or indirectly through one or more intermediaries, control or are controlled by, or are under common control with, Parent Issuer or any of its Subsidiaries (other than Parent Issuer or any of its Subsidiaries), (ii) individuals owning, directly or indirectly, an interest in Parent Issuer or any of its Subsidiaries that gives them significant influence over Parent Issuer or any of its Subsidiaries, (iii) key management personnel, that is, those persons having authority and responsibility for planning, directing and controlling the activities of Parent Issuer or any of its Subsidiaries, including directors and senior management of companies and close members of such individuals’ families, and (iv) enterprises in which a substantial interest in the voting power is owned, directly or indirectly, by any Person described in (ii) or (iii) or over which such a Person is able to exercise significant influence (including enterprises owned by directors or major stockholders of Parent Issuer or any of its Subsidiaries and enterprises that have a member of key management in common with Parent Issuer or any of its Subsidiaries). For purposes of this Section 4.18: (i) significant influence over an enterprise is the power to control the financial and operating policy decisions of the enterprise; and (ii) stockholders beneficially owning a 5% interest in the voting power of Parent Issuer or any of its Subsidiaries are presumed to have a significant influence on Parent Issuer or any of its Subsidiaries. Except as disclosed in the SEC Documents, no employee, officer, stockholder or director of Parent Issuer or any of its Subsidiaries or member of his or her immediate family is

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indebted to Parent Issuer or any of its Subsidiaries, as the case may be, nor is Parent Issuer or any of its Subsidiaries indebted (or committed to make loans or extend or guarantee credit) to any of them, other than (i) for payment of salary for services rendered, (ii) reimbursement for reasonable expenses incurred on behalf of the Company, and (iii) for other standard employee benefits made generally available to all employees or executives (including stock option agreements outstanding under any stock option plan approved by the Company’s Board of Directors).

4.19

Investment Company Act.

Neither Parent Issuer nor any of its Subsidiaries is or, immediately after receipt of payment for the Notes and the consummation of the Transactions, will be an “investment company” registered or required to be registered under the Investment Company Act of 1940, as amended.

4.20

Securities Activities.

Neither Parent Issuer nor any of the Guarantors is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock.

4.21

ERISA.

(a) Each of the Company, Parent Issuer, the Subsidiaries of Parent Issuer and the Guarantors are in compliance in all material respects with all requirements of each Plan, and each Plan materially complies, and is operated in material compliance, with all applicable provisions of law. Each of Parent Issuer and the Company is not aware, after due inquiry, of any item of non-compliance with respect to any Plan that could reasonably be expected to (i) result in the loss of Plan qualification or tax-exempt status, or (ii) give rise to a material excise tax or other penalty imposed by a Governmental Authority. No proceeding, claim, lawsuit and/or investigation (other than a routine claim for benefits) is pending concerning any Plan, which proceeding, claim, lawsuit or investigation could reasonably be expected to result in a material liability. All required contributions have been and will be timely made in accordance with the provisions of each Qualified Plan and Multiemployer Plan, and with respect to each of the Company, Parent Issuer, the Subsidiaries of Parent Issuer, the Guarantors, and each of their respective ERISA Affiliates, there are no, and have been no Unfunded Pension Liabilities in excess of $1,000,000 or Withdrawal Liabilities.

(b) No ERISA Event has occurred or could reasonably be expected to occur with respect to any Qualified Plan, Multiemployer Plan or Plan.

(c) Parent Issuer and each of its Subsidiaries, and each of their respective ERISA Affiliates, currently comply and have complied in all material respects with the notice and continuation coverage requirements of Section 4980B of the Code.

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4.22

Certain Fees.

None of Parent Issuer, the Company or any Person acting on behalf of Parent Issuer or the Company has entered into any agreement or arrangement as a result of which any broker’s or finder’s fee or commission will be payable by Parent Issuer or the Company with respect to the Note Documents or any of the Transactions contemplated hereby, and each of Parent Issuer and the Company hereby indemnifies the Purchasers against, and agrees that it will hold the Purchasers harmless from, any claim, demand or liability for any such broker’s or finder’s fees alleged to have been incurred by Parent Issuer or the Company in connection herewith or therewith and any expenses (including reasonable fees, expenses and disbursements of counsel) arising in connection with any such claim, demand or liability incurred by Parent Issuer or the Company.

4.23

Environmental Matters.

As of the date hereof, neither Parent Issuer nor any of the Guarantors nor any of their respective Facilities or operations are subject to any outstanding written order, consent decree or settlement agreement with any Person relating to any Environmental Law, any Environmental Claim, or the Release or threatened Release of any Hazardous Materials that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. As of the date hereof, neither Parent Issuer nor any of the Guarantors has received any request for information under Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable law related to a matter that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. As of the date hereof, there are and have been no violations of Environmental Laws or Release of Hazardous Materials which could reasonably be expected to form the basis of an Environmental Claim against Parent Issuer or any of the Guarantors that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. As of the date hereof, neither Parent Issuer nor any of the Guarantors nor, to the knowledge of Parent Issuer or the Company, any predecessor of Parent Issuer or any of the Guarantors has filed any notice under any Environmental Law indicating past or present treatment of Hazardous Materials at any Facility, and none of Parent Issuer’s or any of the Guarantors’ operations involves the generation, transportation, treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any state equivalent, except for any such activity conducted in material compliance with Environmental Laws and in a manner that individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. As of the date hereof, compliance with all current requirements pursuant to or under Environmental Laws could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. As of the date hereof, no event or condition has occurred or is occurring with respect to Parent Issuer or any of the Guarantors relating to any Environmental Law, any Release or threatened Release of Hazardous Materials, or any other Hazardous Material Activity which individually or in the aggregate has had, or could reasonably be expected to have, a Material Adverse Effect.

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4.24

Employee Matters.

There is no strike or work stoppage in existence or, to the best knowledge of Parent Issuer and the Guarantors, threatened in writing involving Parent Issuer or any of its Subsidiaries.

4.25

Solvency.

Parent Issuer individually and Parent Issuer and the Guarantors, taken as a whole on a consolidated basis, are, and after giving effect to the incurrence of all Indebtedness and obligations being incurred in connection herewith, will be Solvent.

4.26

Indebtedness.

The capitalization table on Schedule 4.26 sets forth and identifies in reasonable detail all outstanding short-term and long-term Indebtedness of Parent Issuer and its Subsidiaries, after giving effect to the Transactions and the other transactions contemplated by this Agreement.

4.27 No Violation of Regulations of Board of Governors of Federal Reserve System.

None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Notes) will violate or result in a violation of Section 7 of the Exchange Act or any Regulation issued pursuant thereto, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System.

4.28

Private Offering.

Subject to the truth and accuracy of the representations and warranties of the Purchasers hereunder, the sale of the Notes and the issuance of any other Securities pursuant to this Agreement are exempt from the registration and prospectus delivery requirements of the Securities Act. In connection with each offer or sale of the Notes or issuance of any other Securities, no form of general solicitation or general advertising was used by Parent Issuer or its representatives, including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.

The Purchasers are the only purchasers of the Notes. No similar securities have been issued and sold by Parent Issuer within the six-month period immediately prior to the date hereof. Parent Issuer agrees that neither it, nor anyone acting on behalf of it, will offer or sell the Securities, or any similar securities, in the future if such offer or sale will bring the issuance and/or sale of the Securities hereunder within the provisions of Section 5 of the Securities Act.

4.29

Disclosure.

The representations and warranties of Parent Issuer and the Guarantors contained in this Agreement and the information contained in the other documents, certificates and written

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statements furnished to any of the Purchasers by or on behalf of Parent Issuer or the Guarantors for use in connection with the transactions contemplated by this Agreement, including the documents filed by any Note Party with the SEC, when taken together, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made.

4.30

Representations and Warranties.

All statements contained in any certificate delivered to the Purchasers or the Collateral Agent by or on behalf of any Note Party pursuant to or in connection with this Agreement as of the Closing shall be deemed to constitute representations and warranties under this Agreement with the same force and effect as the representations and warranties expressly set forth herein.

4.31

Creation, Perfection and Priority of Liens.

The execution and delivery of the Collateral Documents by Parent Issuer and each of the Guarantors, together with the actions taken on or prior to the date hereof pursuant to Section 2.1(k) are effective to create in favor of the Collateral Agent, on behalf of the Holders, as security for the obligations under the Note Documents, a valid Third Priority Lien on all of the Collateral; provided that if no First Lien Obligations are outstanding, such Lien shall have priority over all other Liens on such Collateral (other than any Second Priority Liens and any Permitted Liens); and provided further that if no First Lien Obligations or Second Lien Obligations are outstanding, such Lien shall have priority over all other Liens on such Collateral (other than any Permitted Liens). All filings and other actions necessary or desirable to perfect and maintain the perfection and such priority status of such Liens have been duly made or taken and remain in full force and effect, other than the periodic filing of UCC continuation statements in respect of UCC financing statements (including any fixture filings) filed by or on behalf of the Holders.

4.32

Subsidiary Rights.

Parent Issuer or one of Parent Issuer’s Subsidiaries has the unrestricted right to vote, and (subject to limitations imposed by Applicable Law) to receive dividends and distributions on, all capital securities of its Subsidiaries as are owned by Parent Issuer or any such Subsidiary.

4.33

Ranking of Notes.

Subject to the provisions of the Intercreditor Agreement, no Indebtedness of Parent Issuer or any of its Subsidiaries is senior to the Third Lien Obligations in right of payment, whether with respect of payment of redemptions, interest, damages or upon liquidation or dissolution or otherwise. The Holders acknowledge that their rights under the Third Lien Obligations will rank third in priority as to priority of payment and lien priority to the rights of the First Lien Noteholders under the First Lien Obligations for so long as such First Lien Obligations remain outstanding and second as to priority of payment and lien priority to the rights of the Second Lien Noteholders under the Second Lien Obligations for so long as the Second Lien Obligations remain outstanding.

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4.34

Independent Auditors.

Ernst & Young LLP, who have certified the consolidated financial statements of Parent Issuer contained in Parent Issuer’s most recently filed Annual Report on Form 10-K, are independent public accountants within the meaning of the Securities Act.

4.35

Books and Records.

The books of account, ledgers, order books, records and documents of Parent Issuer and its Subsidiaries (in the case of any acquired Subsidiary, since the date of its acquisition) accurately and completely reflect all information relating to the respective businesses of Parent Issuer and its Subsidiaries, the nature, acquisition, maintenance, and location of each of their respective assets, and the nature of all transactions giving rise to material obligations or accounts receivable of Parent Issuer or its Subsidiaries, as the case may be, except where the failure to so reflect such information could not reasonably be expected to have a Material Adverse Effect. The minute books of Parent Issuer and its Subsidiaries (in the case of any acquired Subsidiary, since the date of its acquisition) contain accurate records in all material respects of all meetings and accurately reflect in all material respects all other actions taken by the stockholders, Boards of Directors and all committees of the Boards of Directors, and other governing Persons of Parent Issuer and its Subsidiaries, respectively.

4.36

Money Laundering.

Parent Issuer and its Subsidiaries are in compliance with, and have not previously violated, the USA PATRIOT ACT of 2001 and all other applicable U.S. and non-U.S. anti-money laundering laws and regulations (“Anti-Money Laundering Laws”), including, but not limited to the laws, regulations and Executive Orders and sanctions programs administered by OFAC, including, but not limited, to (i) Executive Order 13224 of September 23, 2001 entitled, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001); and (ii) any regulations contained in 31 CFR, Subtitle B, Chapter V.

4.37

SEC Compliance.

(a) Any documents filed with the SEC by any Note Party pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act when they were or are filed with the SEC, conformed or will conform in all material respects to the applicable requirements of the Exchange Act and the applicable rules and regulations of the SEC thereunder, and did not and will not, as of their respective dates, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(b) Parent Issuer is subject to and in compliance in all material respects with the requirements of Section 13 or 15(d) of the Exchange Act; and Parent Issuer has made all filings required by the SEC in a timely manner to ensure the availability of Form S-3.

(c) Except as set forth on Schedule 4.37, Parent Issuer and each of its Subsidiaries maintain (i) effective “internal control over financial reporting” (as defined in Rule

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00x-00 xxxxx xxx Xxxxxxxx Xxx) and (ii) a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorizations; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

(d) Except as set forth on Schedule 4.37, since the end of Parent Issuer’s most recent audited fiscal year, there has been (i) no material weakness in Parent Issuer’s internal control over financial reporting (whether or not remediated) and (ii) no change in Parent Issuer’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, Parent Issuer’s internal control over financial reporting.

(e) Parent Issuer and its Subsidiaries maintain an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15 under the Exchange Act) that is designed to ensure that information required to be disclosed by Parent Issuer in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to Parent Issuer’s management as appropriate to allow timely decisions regarding required disclosure. Parent Issuer and its Subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by the Exchange Act.

(f) There is and has been no failure on the part of Parent Issuer and any of Parent Issuer’s directors or officers, in their capacities as such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith.

4.38

Necessary Approvals.

Parent Issuer and each of the Guarantors has obtained all governmental, shareholder, third party and other approvals necessary or advisable in connection with the Transactions (including receipt of written notice from the National Association of Securities Dealers Automated Quotation System (“NASDAQ”) stating that Parent Issuer qualifies for the financial viability exemption contemplated by NASDAQ Marketplace Rule 4350(i)(2)) and the continuing operations of the business of Parent Issuer and its Subsidiaries after giving effect to the Transactions.

ARTICLE V

COVENANTS

So long as any of the Notes remain unpaid and outstanding, Parent Issuer and each of the Guarantors covenant to the Holders as follows:

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5.1

Financial Statements and Other Reports.

Parent Issuer will maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. Parent Issuer will deliver to the Collateral Agent and the Holders:

(a) Quarterly Financials: as soon as available and in any event within 45 days after the end of each Fiscal Quarter of each Fiscal Year (other than the last Fiscal Quarter of each Fiscal Year), the unaudited consolidated balance sheet of Parent Issuer and its Subsidiaries as at the end of such fiscal period and the related consolidated statements of income and cash flows of Parent Issuer and its Subsidiaries for such fiscal period and for the period from the beginning of the then current Fiscal Year to the end of such fiscal period, reviewed by Ernst & Young LLP or other independent certified public accountants of recognized national standing selected by Parent Issuer, setting forth in each case in comparative form (x) with respect to such statements of income, the corresponding figures for the corresponding periods for the previous Fiscal Year, and (y) with respect to such balance sheets, the corresponding figures as of the end of the previous Fiscal Year, all in reasonable detail and certified by the chief financial officer of Parent Issuer that they fairly present, in all material respects, the financial condition of Parent Issuer and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated; provided, that the delivery by Parent Issuer of quarterly reports on Form 10-Q of Parent Issuer and its consolidated Subsidiaries (which shall include all material information contained in the Officer’s Certificate delivered in connection therewith pursuant to clause (c)) shall satisfy the requirements of this Section 5.1(a). Following delivery of each quarterly report, the Holders will have the opportunity to review the contents of the quarterly report with members of the executive management of Parent Issuer, including without limitation Parent Issuer’s chief financial officer, subject to customary confidentiality undertakings if any non-public information is requested to be presented in such meetings. Parent Issuer shall determine the time and location thereof and notice thereof will be provided to each Holder at least 15 Business Days in advance. Telephonic attendance will be permitted on the part of any of Parent Issuer’s representatives and/or any Holder. In addition, as soon as available and in any event within 15 days of the end of each month that is not the end of a Fiscal Quarter, the Company shall deliver to each Electing Holder (as defined below) the unaudited consolidated balance sheet of Parent Issuer and its Subsidiaries as at the end of such fiscal period and the related consolidated statements of income and cash flows of Parent Issuer and its Subsidiaries for such fiscal period and for the period from the beginning of the then current Fiscal Year to the end of such fiscal period, setting forth in each case in comparative form (x) with respect to such statements of income, the corresponding figures for the corresponding periods for the previous Fiscal Year, and (y) with respect to such balance sheets, the corresponding figures as of the end of the previous Fiscal Year, all in reasonable detail. Following delivery of each monthly report, the Electing Holders will have the opportunity to review the contents of the monthly report with members of the executive management of Parent Issuer, including without limitation Parent Issuer’s chief financial officer. Parent Issuer shall determine the time and location thereof and notice thereof will be provided to each Electing Holder at least 5 Business Days in advance. Telephonic attendance will be permitted on the part of any of Parent Issuer’s representatives and/or any Electing Holder. For purposes hereof, “Electing Holder” means a Holder that has notified Parent Issuer that it wishes to receive the monthly reports described above, and has

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provided a confidentiality undertaking reasonably satisfactory to Parent Issuer, provided that such a Holder shall cease to be an Electing Holder upon it notifying Parent Issuer in writing that it no longer wishes to receive the monthly reports described above;

(b) Year-End Financials: as soon as available and in any event within 90 days after the end of each Fiscal Year, (i) the consolidated balance sheet of Parent Issuer and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows of Parent Issuer and its Subsidiaries for such Fiscal Year, all in reasonable detail and certified by the chief financial officer of Parent Issuer that they fairly present, in all material respects, the financial condition of Parent Issuer and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, and (ii) in the case of such consolidated financial statements, a report thereon of Ernst & Young LLP or other independent certified public accountants of recognized national standing selected by Parent Issuer, which report shall be unqualified, shall express no assumptions or qualifications concerning the ability of Parent Issuer and its Subsidiaries to continue as a going concern, and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial position of Parent Issuer and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided, that the delivery by the Company of annual reports on Form 10-K of Parent Issuer and its consolidated Subsidiaries (which shall include all material information contained in the Officer’s Certificate delivered in connection therewith pursuant to Section 5.1(c)) shall satisfy the requirements of this Section 5.1(b);

(c) Compliance Certificates: together with each delivery of financial statements pursuant to Sections 5.1(a) and 5.1(b) above, an Officer’s Certificate of Parent Issuer and the Company stating that the signer has reviewed the terms of this Agreement and has made, or caused to be made under his or her supervision, a review in reasonable detail of the transactions and condition of Parent Issuer and its Subsidiaries during the accounting period covered by such financial statements and that such review has not disclosed the existence during or at the end of such accounting period, and that the signer does not have knowledge of the existence as at the date of such Officer’s Certificate, of any condition or event that constitutes a Default or an Event of Default, or, if any such condition or event exists, specifying the nature and period of existence thereof and what action Parent Issuer or other Note Party has taken, is taking and proposes to take with respect thereto;

(d) Events of Default, etc.: promptly upon any officer of Parent Issuer or the Company obtaining knowledge of (i) any condition or event that constitutes a Default or an Event of Default, or becoming aware that any Holder has given notice with respect to a claimed Default or Event of Default, (ii) any violation of any law, statute, rule, regulation or ordinance of any Governmental Authority, or of any agency thereof, binding on Parent Issuer or any of the Guarantors which has had or could reasonably be expected to have a Material Adverse Effect, (iii) any condition or event that could reasonably be expected to result in a violation or breach of the terms or conditions of any FCC License, Underlying License or Spectrum Lease, or result in the termination, invalidity or loss of any material rights under any FCC License, Underlying

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License or Spectrum Lease or (iv) the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, an Officer’s Certificate specifying the nature and period of existence of such condition, event or change, or specifying the notice given or action taken by any such Person and the nature of such claimed Default, Event of Default, default, event or condition, and what action Parent Issuer or other Note Party has taken, is taking and proposes to take with respect thereto;

(e) ERISA Events: promptly upon becoming aware of the occurrence of or forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof, what action Parent Issuer and any of its Subsidiaries, or any of their respective ERISA Affiliates, has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto;

(f) ERISA Notices: with reasonable promptness, copies of (i) all notices received by Parent Issuer or any of its Subsidiaries, or any of their respective ERISA Affiliates, from a Multiemployer Plan sponsor concerning an ERISA Event; and (ii) copies of such other documents or governmental reports or filings relating to any Plan as the Holders shall reasonably request; and

(g) Build-Out Reports: from time to time and, upon the reasonable prior request of a Holder, provided that such information is not otherwise available in documents filed by Parent Issuer with the SEC, reports concerning the status of Parent Issuer’s (or its applicable Subsidiary’s) satisfaction of its build-out and service requirements in connection with its FCC Licenses and Spectrum Leases.

5.2

Payment of Notes.

Parent Issuer will promptly pay or cause to be paid the Principal Amount of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes, and in accordance with the terms of the Intercreditor Agreement.

5.3

Satisfaction of Obligations; Taxes.

(a) Parent Issuer will, and will cause each of its Subsidiaries to, perform all obligations under any Contractual Obligation to which Parent Issuer or any of its Subsidiaries is bound, or to which any of its properties is subject, except where the failure to perform would not reasonably be expected to have a Material Adverse Effect.

(b) Parent Issuer will, and will cause each of its Subsidiaries to, pay all material Taxes imposed upon it or any of its properties or assets or in respect of any of its income, businesses or franchises, and all material claims (including, without limitation, claims for labor, services, materials and supplies) for sums that have become due and payable before the same shall become a Lien (other than Liens permitted pursuant to Section 5.12(a) upon any of its properties or assets); provided that no such Tax or claims need be paid if being contested in good faith by appropriate proceedings and if a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor.

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5.4

Maintenance of Property; Insurance.

(a) Parent Issuer will, and will cause each of its Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition in all material respects, ordinary wear and tear and accidental or unforeseen circumstances excepted, all properties necessary in the business of Parent Issuer and each of its Subsidiaries, and all Collateral, and from time to time will make or cause to be made all necessary repairs, renewals and replacements thereof, consistent with industry practice.

(b) Parent Issuer will, and will cause each of its Subsidiaries to, maintain or cause to be maintained, with financially sound and reputable insurers, such public liability insurance, third party property damage insurance, business interruption insurance and casualty insurance with respect to liabilities, losses or damage in respect of the assets, properties and businesses of Parent Issuer and its Subsidiaries as may customarily be carried or maintained under similar circumstances by corporations of established reputation engaged in similar businesses, in each case in such amounts (giving effect to self-insurance), with such deductibles, covering such risks and otherwise on such terms and conditions as shall be customary for corporations similarly situated in the industry.

5.5

Corporate Existence.

Except as otherwise permitted pursuant to the terms of this Agreement, Parent Issuer will, and will cause each of its Subsidiaries to, at all times preserve and keep in full force and effect its corporate existence; provided, however, that Parent Issuer and its Subsidiaries shall not be required to preserve the corporate existence of any Subsidiary (other than the Company) if the Board of Directors of Parent Issuer shall determine that the preservation thereof is no longer desirable in the conduct of its business and the business of its Subsidiaries, taken as a whole, and that the loss thereof is not, and will not be, adverse in any material respect to the Holders, and provided that such Subsidiary does not hold any Spectrum Holdings, other than such Spectrum Holdings as Parent Issuer and its Subsidiaries would not be required to maintain in full force and effect in accordance with Section 5.7(c) below.

5.6

Books and Records.

Parent Issuer will, and will cause each of its Subsidiaries to, keep complete and accurate books and records in conformity with GAAP.

5.7

Compliance with Law, Maintenance of FCC Licenses.

Parent Issuer will, and will cause each of its Subsidiaries to:

(a) comply with all Applicable Laws except for such noncompliance that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect;

(b) maintain all Governmental Authorizations in compliance with all Applicable Law except for such noncompliance that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; and

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(c) maintain in full force and effect the FCC Licenses and Spectrum Leases and any Foreign Licenses or Foreign Spectrum Leases necessary for the operation of its business, and comply with the construction, operating and reporting requirements of the FCC or other applicable Governmental Authority, including the satisfaction of all FCC and other service and/or buildout requirements, except for such noncompliance or failures to maintain, that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

5.8

Account Control Agreement Amendment.

Parent Issuer will deliver to the Collateral Agent and the First Lien Collateral Agent the Account Control Agreement Amendment duly executed by all applicable Persons within ten (10) Business Days after the date hereof.

5.9

Additional Guarantors; Additional Collateral.

(a) In the event that Parent Issuer or any of its Subsidiaries forms or acquires a License Subsidiary or any other Material Subsidiary, Parent Issuer and the Company shall promptly notify the Collateral Agent (who shall notify the Holders) of that fact and cause each such License Subsidiary and Material Subsidiary to execute and deliver to the Collateral Agent counterparts of the Guaranty and the Security Agreement, and, if applicable, shall cause the immediate parent of such Subsidiary (including any such Foreign Subsidiary) to execute a counterpart of the Security Agreement, and, in each case, all such further documents and instruments as may be necessary or, in the opinion of the Required Holders, or the Collateral Agent, desirable to create a valid and perfected Lien on all of the assets of such Subsidiary that constitute Collateral, as well as a pledge of the Subsidiary’s Capital Stock. For so long as the First Lien Obligations and the Second Lien Obligations are outstanding, such Lien and pledge in favor of the Holders shall be a Third Priority Lien and pledge, subject only to the prior rights of the First Lien Noteholders and the Second Lien Noteholders in accordance with the terms of the Intercreditor Agreement. Upon the satisfaction in full of the First Lien Obligations, such Lien and pledge in favor of the Holders shall be a second priority Lien and pledge in and to such Collateral and Capital Stock in favor of the Holders, subject only to the prior rights of the Second Lien Noteholders in accordance with the terms of the Intercreditor Agreement. Upon the satisfaction in full of the First Lien Obligations and the Second Lien Obligations, such Lien and pledge in favor of the Holders shall be a first priority Lien and pledge in and to such Collateral and Capital Stock in favor of the Holders. Notwithstanding the foregoing, (i) no Foreign Subsidiary shall be required to execute and deliver the Guaranty or the Security Agreement and (ii) the Capital Stock of a Foreign Subsidiary required to be pledged pursuant to the provisions of the Security Agreement shall apply only to a Foreign Subsidiary that is directly owned by Parent Issuer or a Domestic Subsidiary and shall be limited to 66% of the issued and outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)). Parent Issuer and the Company shall also deliver to the Holders, together with such counterparts of the Guaranty and the Security Agreement and other documents and instruments, (A) certified copies of such Guarantor’s Organizational Documents, together with a good standing certificate from the Secretary of State (or equivalent officer) of the jurisdiction of its organization or formation, each to be dated as of a recent date prior to their

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delivery to the Holders, (B) a certificate executed by the secretary or an assistant secretary of such Guarantor as to (a) the incumbency and signatures of the officers of such Guarantor executing the counterparts of the Guaranty and the Security Agreement and such other documents and instruments executed in connection therewith and (b) the fact that the attached resolutions of the Governing Authority of such Guarantor authorizing the execution, delivery and performance of the counterparts of the Guaranty and the Security Agreement and such other documents and instruments are in full force and effect and have not been modified or rescinded, and (C) a favorable opinion of counsel to Parent Issuer and such Guarantor, in form and substance reasonably satisfactory to the Required Holders, as to (a) the due organization or formation and good standing of such Guarantor, and the ownership of the Capital Stock thereof, (b) the due authorization, execution and delivery by such Guarantor of the counterparts of the Guaranty and the Security Agreement and such other documents and instruments, and (c) the enforceability of the counterparts of the Guaranty and the Security Agreement and such other documents and instruments.

(b) Parent Issuer and each of the Guarantors will (i) cause the Collateral to be subject at all times to a Lien perfected in favor of the Collateral Agent to secure the obligations pursuant to the terms and conditions of the Collateral Documents or, with respect to any such property acquired subsequent to the date hereof, such other additional security documents as the Holders shall reasonably request, subject in any case to Liens permitted hereunder and (ii) deliver such other documentation as the Required Holders or the Collateral Agent may reasonably request in connection with the foregoing, including, without limitation, appropriate UCC financing statements and other items of the types required to be delivered pursuant to Section 2.1(k), all in form, content and scope reasonably satisfactory to the Required Holders or the Collateral Agent, and duly executed by all applicable Persons and/or filed in all jurisdictions necessary or, in the opinion of the Required Holders, desirable to perfect the security interests created in such Collateral pursuant to the Collateral Documents. Without limiting the generality of the above, Parent Issuer and the Guarantors will cause (a) 100% of the issued and outstanding Capital Stock of each Domestic Subsidiary that is a Material Subsidiary and (b) 66% of the issued and outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary that is directly owned by Parent Issuer or a Domestic Subsidiary and that is a Material Subsidiary to be subject at all times to a perfected Lien in favor of the Collateral Agent pursuant to the terms and conditions of the Collateral Documents or such other security documents as the Required Holders or the Collateral Agent shall reasonably request. In each case, the priority of the Liens and pledges described in this Section 5.9(b) shall be in accordance with the priorities described in this Section 5.9 and in the Intercreditor Agreement.

5.10

Asset Sale Proceeds Account.

(a)

[RESERVED]

(b) Parent Issuer and the Company shall use any amounts in or deposited in the Asset Sale Proceeds Account in the following order of priority, first, for so long as any First Lien Obligations are outstanding, to satisfy the First Lien Obligations in accordance with the terms of the First Lien Documents, second, to the extent such amounts are not required to be

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applied to satisfy the First Lien Obligations and for so long as any Second Lien Obligations are outstanding, to satisfy the Second Lien Obligations in accordance with the terms of the Second Lien Documents, and third, to the extent such amounts are not required to be applied to satisfy the First Lien Obligations or the Second Lien Obligations and for so long as any Third Lien Obligations are outstanding, to satisfy the Third Lien Obligations in accordance with the terms of the Note Documents (including Section 8.1(b) hereof), until the Third Lien Obligations are satisfied in full; provided that in connection with any Asset Sale occurring simultaneously with or subsequent to the satisfaction in full of the Second Lien Obligations, to the extent that the Company’s cash and Cash Equivalent balance as of the date the Second Lien Obligations are satisfied in full is less than $15 million (after giving effect to any satisfaction of the Second Lien Obligations on such date) (such shortfall, the “Cash Deficiency”), the Company shall be permitted to retain all or a portion of the Net Proceeds in excess of any amount used to satisfy the Second Lien Obligations in full from such Asset Sale or any subsequent Asset Sales, provided that the amount so retained from all such Asset Sales in the aggregate shall not exceed the Cash Deficiency. In the case of a redemption pursuant to Section 8.1(a) or 8.1(b) hereof, Parent Issuer shall state in the Notice of Redemption the aggregate amount of proceeds in the Asset Sale Proceeds Account that will be applied to effect such redemption. No later than three (3) Business Days prior to the Redemption Date specified in the Notice of Redemption, the Collateral Agent shall deliver to the financial institution with which the Asset Sale Proceeds Account is maintained a consent to the release of such proceeds from the Asset Sale Proceeds Account on such Redemption Date.

(c) All amounts credited to the Asset Sale Proceeds Account shall be held in cash or invested solely in Cash Equivalents of a type described in clauses (i) through (iv) of the definition thereof, and all such cash and Cash Equivalents shall be held in, and credited to, such accounts.

5.11

Limitation on Restricted Payments.

(a) Parent Issuer shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Payment; provided that the foregoing shall not prohibit:

1. Restricted Payments made to the Company or any other Guarantor, or by any Subsidiary of the Company that is not a Guarantor on a pro rata basis to the holders of its Capital Stock;

2. the repurchase of Capital Stock of Parent Issuer deemed to occur upon the exercise of options or warrants to the extent that such Capital Stock represents all or a portion of the exercise price;

3. Restricted Payments constituting the repurchase of Capital Stock of Parent Issuer, constituting fractional shares, in an aggregate amount not exceeding $100,000 per Fiscal Year;

4. the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Parent Issuer, held by any current or former employee, consultant or

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director of Parent Issuer or any of its Subsidiaries pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement approved by a majority of the disinterested members of the Board of Directors of Parent Issuer, in an aggregate amount not exceeding $500,000 per Fiscal Year;

5. after the satisfaction in full in cash of all First Lien Obligations and Second Lien Obligations, Restricted Payments made to Parent Issuer, or by any Subsidiary of Parent Issuer that is not a Guarantor on a pro rata basis to the holders of its Capital Stock; or

6. Restricted Payments to Parent Issuer in an amount not to exceed the amount required by Parent Issuer to pay any consolidated, combined or unitary Taxes of Parent Issuer and/or any of its Subsidiaries that are due and payable within 10 days of the Restricted Payment.

5.12

Liens and Related Matters.

(a) Prohibition on Liens. Parent Issuer shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Parent Issuer or any of its Subsidiaries, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits under the UCC or under any similar recording or notice statute, except:

Permitted Liens;

2. Liens with respect to Capital Leases and Liens on any asset existing at the time of acquisition of such asset by the Company or a Subsidiary of the Company (provided that no such Lien shall secure any Indebtedness incurred in contemplation of such acquisition or constituting (x) a refinancing, extension or replacement of Indebtedness existing at the time of acquisition of such asset or (y) an increase in the principal amount of Indebtedness existing at the time of acquisition of such asset except to the extent such increase was contemplated pursuant to commitments existing under the agreement evidencing such Indebtedness at the time of such acquisition), or Liens to secure the payment of all or any part of the purchase price of an asset upon the acquisition of such asset by the Company or a Subsidiary of the Company or to secure any Indebtedness permitted hereby incurred by the Company or a Subsidiary of the Company at the time of the acquisition of such asset, which Indebtedness is incurred for the sole purpose of financing all or any part of the purchase price thereof (and does not exceed such purchase price); provided, however, that the Lien shall apply only to the asset so acquired and proceeds thereof and shall not apply to any Collateral; and provided further, that all such Liens do not in the aggregate secure Indebtedness in a principal amount in excess of $25,000,000 at any time outstanding; and

Liens described in Schedule 5.12 annexed hereto.

(b) No Restrictions on Subsidiary Distributions to Parent Issuer or Other Subsidiaries. Parent Issuer will not, and will not permit any of its Subsidiaries to, create or

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otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any such Subsidiary to (i) pay dividends or make any other distributions on any of such Subsidiary’s Capital Stock owned by Parent Issuer or any other Subsidiary of Parent Issuer, (ii) repay or prepay any Indebtedness owed by such Subsidiary to Parent Issuer or any other Subsidiary of Parent Issuer, (iii) make loans or advances to Parent Issuer or any other Subsidiary of Parent Issuer, or (iv) transfer any of its property or assets to Parent Issuer or any other Subsidiary of Parent Issuer, except (A) as provided in the Note Documents, the First Lien Documents or the Second Lien Documents, (B) as to transfers of assets, as may be provided in an agreement with respect to a sale of such assets, and (C) as to any assets subject to Liens permitted under Section 5.12(a), as may be permitted in any agreement relating to Indebtedness secured by such Lien permitted under Section 5.12(a).

(c) No Negative Pledges. Subject to the terms of the Intercreditor Agreement, neither Parent Issuer nor any of its Subsidiaries shall enter into any agreement or remain party to any agreement prohibiting the creation or assumption of any Lien upon any of the Collateral, whether now owned or hereafter acquired, to secure obligations under any Note Documents, including this Agreement.

5.13

Indebtedness.

Parent Issuer shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except that:

(a) Parent Issuer and the Guarantors may become and remain liable with respect to Indebtedness arising or existing under this Agreement, the Notes, the Guaranty, the other Note Documents, the First Lien Notes and the Second Lien Notes;

(b) any Guarantor may become and remain liable with respect to Indebtedness to any other Guarantor, and any Subsidiary of the Company that is not a Guarantor may become and remain liable with respect to Indebtedness to any other Subsidiary of the Company that is not a Guarantor;

(c) the Guarantors may become and remain liable with respect to Indebtedness of the type described in Section 5.12(a)(2) in an aggregate principal amount not in excess of $25,000,000 at any time outstanding;

(d) the Guarantors may become and remain liable with respect to Indebtedness arising under Spectrum Leases that are Capital Leases under GAAP;

(e) the Guarantors may incur short-term Indebtedness to the FCC in respect of the purchase price of FCC Licenses acquired by a License Subsidiary pursuant to FCC auctions, provided that all such amounts are paid in full when payment is due in accordance with FCC Rules;

(f) the Company and its Subsidiaries, as applicable, may remain liable with respect to Indebtedness described in Schedule 5.13 annexed hereto; and

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(g) solely for the purpose of funding a working capital line of credit (a “Working Capital Line”), the Company and its Subsidiaries may become and remain liable with respect to additional Indebtedness in an aggregate principal amount of up to $25,000,000, provided that such Indebtedness (i) is secured (if at all) solely by accounts receivable and inventory of the Company and its Subsidiaries, and (ii) is negotiated and approved by the COO (as defined in the Second Lien Purchase Agreement).

5.14

Asset Sales.

(a) General Requirements. Parent Issuer will not, and will not permit any of its Subsidiaries to, consummate any Asset Sale, unless:

1. the Net Proceeds thereof are deposited in the Asset Sale Proceeds Account and applied first, to the extent required by the First Lien Noteholders, to the satisfaction in full of the outstanding First Lien Obligations (so long as any First Lien Obligations are outstanding), in accordance with the terms of the First Lien Documents, second, to the extent required by the Second Lien Noteholders, to the satisfaction in full of the outstanding Second Lien Obligations (so long as any Second Lien Obligations are outstanding), in accordance with the terms of the Second Lien Documents, and third, to the satisfaction in full of the outstanding Third Lien Obligations in accordance with the terms of the Note Documents (including Section 8.1(b) hereof); provided that in connection with any Asset Sale occurring simultaneously with or subsequent to the satisfaction in full of the Second Lien Obligations, to the extent of any Cash Deficiency existing as of the date the Second Lien Obligations are satisfied in full, the Company shall be permitted to retain all or a portion of the Net Proceeds in excess of any amount used to satisfy the Second Lien Obligations in full from such Asset Sale or any subsequent Asset Sales, provided that the amount so retained from all such Asset Sales in the aggregate shall not exceed the Cash Deficiency; and provided further that the Company may retain up to an aggregate of $1,500,000 in Net Proceeds resulting from any one or more Asset Sales during the term of the Notes, each of which individually does not result in Net Proceeds greater than $1,500,000;

2. the Company (or the Subsidiary of the Company, as the case may be) receives consideration at the time of such Asset Sale that yields Net Proceeds greater than the aggregate original purchase price paid by the Company or any of its Subsidiaries for such assets or Capital Stock; and

3. all of the consideration received in the Asset Sale by the Company or such Subsidiary is in the form of cash or Cash Equivalents;

provided that the requirements of clause (2) of this Section 5.14(a) shall not apply to any sale or other disposition of all or any part of the Capital Stock or assets of IPW, Go Networks or the Semiconductor Strategic Business Unit of NextWave Broadband, in one or a series of Asset Sales.

(b) Notwithstanding the foregoing provisions of this Section 5.14, in the case of an Asset Sale that will yield Net Proceeds sufficient, together with any other amounts then on deposit in the Asset Sale Proceeds Account, to satisfy in full, any and all outstanding First Lien Obligations (in accordance with the terms of and at the prices specified in the First Lien

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Documents), any and all outstanding Second Lien Obligations (in accordance with the terms of and at the prices specified in the Second Lien Documents), and any and all outstanding Third Lien Obligations (in accordance with the terms of and at the prices specified in the Note Documents), such Net Proceeds may be less than the aggregate original purchase price of the assets being sold pursuant to such Asset Sale; provided that Parent Issuer or the Company, as applicable shall deliver a Notice of Redemption in accordance with Section 8.3 no later than the date of consummation of such Asset Sale, which Notice of Redemption shall indicate that the Notes will be redeemed in whole on the redemption date specified therein; and provided further that such Net Proceeds shall be deposited into and maintained in the Asset Sale Proceeds Account until the specified redemption date.

(c) Parent Issuer shall not, and shall not permit its Subsidiaries to, lease or sublease any of its rights under or in respect of any FCC License or Foreign License, provided that the Company and its Subsidiaries may enter into such leases or subleases in no more than five of the markets set forth on Schedule 5.14(c) hereof (one lease per market, for a maximum of five leases), and provided further that, solely to the extent that the Net Proceeds of such lease or sublease are applied to pay scheduled interest on the First Lien Notes or the Second Lien Notes (or reserved for such purpose, in an amount not to exceed the aggregate amount of the next scheduled interest payment), such Net Proceeds are not required to be applied as described in Section 5.14(a), above.

(d) Notwithstanding anything to the contrary in this Section 5.14, the Holders shall have no right to consent or object to any Asset Sale permitted in accordance with the terms of the Intercreditor Agreement.

5.15

Merger and Consolidation.

Parent Issuer shall not, and shall not permit its Subsidiaries to, directly or indirectly: (i) consolidate or merge with or into another Person (whether or not Parent Issuer or the Company is the surviving corporation) or change its form of organization, (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of Parent Issuer and its Subsidiaries taken as a whole, in one or more related transactions, to another Person, or (iii) consummate a stock sale or other business combination (including without limitation, a reorganization, recapitalization, spin-off or scheme or arrangement) with another Person, whereby such other Person acquires more than 50% of the outstanding shares of Common Stock; except that any Subsidiary of the Company may merge into (A) any wholly-owned Subsidiary of the Company that is a Guarantor of the Notes or (B) with or into another Person, provided that, after giving effect to any such merger described in clause (A) or (B), no Default or Event of Default shall have occurred and be continuing, and provided further that, in the case of clause (B), if such Subsidiary is a Material Subsidiary (or is otherwise a Note Party), such Subsidiary shall be the surviving entity, shall have reaffirmed all of its obligations under the Note Documents and shall continue to be a wholly-owned Subsidiary of the Company, and in all other cases (except a merger in connection with an Asset Sale that is permitted by the terms hereof) the surviving entity shall be a Subsidiary of the Company.

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5.16

No Layering of Debt.

Parent Issuer (i) will not incur, create, issue, assume, guarantee or otherwise become liable for any Indebtedness that is subordinate or junior in right of payment to any Indebtedness of Parent Issuer and senior in right of payment to, or pari passu in right of payment with, the Notes, and (ii) will not permit any Guarantor to incur, create, issue, assume, guarantee or otherwise become liable for any Indebtedness that is subordinate or junior in right of payment to any Indebtedness of such Guarantor and senior in right of payment to, or pari passu in right of payment with, such Guarantor’s obligations under the Guaranty, in each case, other than a Working Capital Line. No Guarantor will incur, create, issue, assume, guarantee or otherwise become liable for any Indebtedness that is subordinate or junior in right of payment to any Indebtedness of such Guarantor and senior in right of payment to, or pari passu in right of payment with, such Guarantor’s obligations under the Guaranty, other than a Working Capital Line. Notwithstanding the foregoing provisions of this Section 5.16, Parent Issuer and the Guarantors shall be permitted to incur, maintain and guaranty all obligations under the First Lien Documents and the Second Lien Documents.

5.17

Limitation on Transactions With Affiliates.

(a) Parent Issuer will not, and will not permit any of its Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guaranty with, or for the benefit of, any Affiliate of Parent Issuer (each an “Affiliate Transaction”) except as disclosed on Schedule 4.18, unless:

1. the Affiliate Transaction is, or series of Affiliate Transactions are, on terms that are no less favorable to Parent Issuer or the relevant Subsidiary than those that would have been obtained in a comparable transaction by Parent Issuer or such Subsidiary with an unrelated Person on an arm’s length basis;

2. Parent Issuer delivers to each of the Holders a resolution of the Board of Directors of Parent Issuer set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section 5.17(a) and that such Affiliate Transaction has been approved by a majority of the independent members of the Board of Directors of Parent Issuer; provided that such Officer’s Certificate shall only be required in connection with an Affiliate Transaction or series of Affiliate Transactions in excess of $5,000,000; and

3. with respect to any Affiliate Transaction or series of Affiliate Transactions involving aggregate consideration in excess of $10,000,000, an opinion as to the fairness, to Parent Issuer or such Subsidiary, of such Affiliate Transaction from a financial point of view, issued by an accounting, valuation, appraisal or investment banking firm of national standing.

(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 5.17(a) hereof:

transactions between or among any Guarantors;

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2. reasonable and customary salaries and fees paid to members of the Boards of Directors and officers of Parent Issuer and its Subsidiaries;

3. reasonable and customary indemnifications and insurance arrangements for the benefit of Persons that are officers or members of the Boards of Directors of Parent Issuer and its Subsidiaries on or after the date hereof, whether such Persons are current or former officers or members at the time such indemnifications or arrangements are entered into; or

4. salary, bonus, employee stock option, stock repurchase, employee benefit compensation, business expense reimbursement, health care, insurance and other like benefits, severance, termination and other employment-related agreements, arrangements or plans and other compensation and employment arrangements with directors, officers, managers and employees in the ordinary course of business, including, without limitation, in connection with any employment agreements or benefits arrangements between Parent Issuer and any of its Subsidiaries with employees.

(c) Notwithstanding any other provision of this Section 5.17, any transactions between or among Parent Issuer or any of its Affiliates, on the one hand, and any Purchaser or Holder (or their representatives) on the other hand, with respect to or in connection with the Notes, the First Lien Notes or the Second Lien Notes will be deemed an Affiliate Transaction but will not be subject to the provisions of Section 5.17(a)(3).

5.18

Offer to Repurchase Upon Change of Control.

(a) Upon the occurrence of a Change of Control, Parent Issuer will, to the extent permitted by the Intercreditor Agreement and Section 5.18(c) hereof, make an offer (a “Change of Control Offer”) to each Holder, at each Holder’s option, to repurchase all or any part (equal to $1,000 or an integral multiple of $1,000) of such Holder’s Notes at a purchase price (the “Change of Control Payment”), payable in cash, equal to the sum of (i) the aggregate Principal Amount of such Holder’s Notes, plus (ii) any accrued and unpaid interest thereon to the date of repurchase. Within 30 days following any Change of Control, Parent Issuer will mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and stating:

1. that the Change of Control Offer is being made pursuant to this Section 5.18 and that all Notes tendered will be accepted for payment;

2. the Change of Control Payment and the repurchase date (the “Change of Control Payment Date”), which shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed;

3. that any Note (or portion thereof) not tendered will continue to accrue interest;

4. that, unless Parent Issuer defaults in the payment of the Change of Control Payment, all Notes (or portion thereof) accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date;

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5. that Holders electing to have their Notes repurchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to Parent Issuer at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;

6. that Holders will be entitled to withdraw their election if Parent Issuer receives, not later than the close of business on the fourth Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the Principal Amount of Notes delivered for repurchase, and a statement that such Holder is withdrawing his election to have the Notes repurchased; and

7. that Holders whose Notes are being repurchased only in part will be issued new Notes equal in Stated Value to the unpurchased portion of the Principal Amount of the Notes surrendered, which unpurchased portion must be equal to $1,000 in Principal Amount or an integral multiple thereof.

Parent Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change in Control. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 5.18, Parent Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 5.18 by virtue of such compliance.

(b) On the Change of Control Payment Date, Parent Issuer will, to the extent lawful and to the extent permitted by the Intercreditor Agreement and Section 5.18(c) hereof, accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer. Parent Issuer will promptly (but in any case not later than two Business Days after the Change of Control Payment Date) make payment in accordance with Section 3.2, to each Holder of Notes properly tendered, the Change of Control Payment for such Notes, and Parent Issuer will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in Stated Value to any unpurchased portion of the Principal Amount of the Notes surrendered, if any; provided that each such new Note will be in a Stated Value of $1,000 or an integral multiple of $1,000.

(c) Prior to the commencement of a Change in Control Offer, but in any event within 30 days following any Change in Control, and as a condition precedent to any payment pursuant to Section 5.18(b), Parent Issuer and the Company will:

satisfy all First Lien Obligations and Second Lien Obligations; or

2. obtain the requisite consents under the First Lien Purchase Agreement and the Second Lien Purchase Agreement to permit the repayment or repurchase of the Notes as provided herein.

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5.19

Nature of Business.

Parent Issuer will not, and will not permit any of its Subsidiaries to, engage in any material respect in any business substantially different from a Permitted Business.

5.20

Investment Company Act.

Parent Issuer will not, and will not permit any of its Subsidiaries to, become an investment company subject to registration under the Investment Company Act of 1940, as amended.

5.21

Waiver of Stay, Extension or Usury Laws.

Parent Issuer and each Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law which prohibit or forgive Parent Issuer or such Guarantor from paying all or any portion of the Principal Amount of, premium, if any, or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Agreement; and (to the extent that it may lawfully do so) Parent Issuer and each Guarantor hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Holders, but will suffer and permit the execution of every such power as though no such law had been enacted.

5.22

Spectrum Holdings.

All Spectrum Holdings of Parent Issuer and its Subsidiaries shall be owned by a License Subsidiary that is a Guarantor or, in the case of Foreign Spectrum Holdings, except to the extent Applicable Law or the reasonable tax planning requirements of Parent Issuer and its Subsidiaries require otherwise, a Foreign Subsidiary that is directly and wholly owned by Parent Issuer, the Company or a Domestic Subsidiary that is a wholly-owned Subsidiary of the Company. At no time shall Parent Issuer or a Guarantor lease, transfer, or otherwise alienate any portion of the Spectrum Holdings, except in accordance with Section 5.14. Parent Issuer and the Guarantors will take the actions required to maintain the value and utility of the spectrum in the Spectrum Holdings including, without limitation, exercising diligence in preventing any increased interference or undesired signal levels in the radio frequencies specified in the FCC Licenses, Underlying Licenses, Foreign Licenses and licenses relating to any Foreign Spectrum Lease throughout the entirety of the Geographic Service Area (or similar foreign area) specified in such licenses. All such actions in respect of US Spectrum Holdings shall be consistent with the Communications Act and the FCC Rules.

5.23

Amendments of Organizational Documents.

Parent Issuer shall not, nor shall it permit any of its Subsidiaries to amend, supplement or otherwise change their respective Organizational Documents in a manner that is adverse to the Holders.

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5.24

OFAC.

Neither Parent Issuer nor any Subsidiary of Parent Issuer: (i) will become a person whose property or interests in property are blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit or Support Terrorism (66 Fed. Reg. 49079(2001)), (ii) will engage in any dealings or transactions prohibited by Section 2 of such executive order, or be otherwise associated with any such person in any manner violative of Section 2 of such order, or (iii) will otherwise become a person on the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other OFAC regulation or executive order.

5.25

Parent Issuer.

Parent Issuer shall be a holding company and shall not engage in any business or other activities, other than the issuance of its Capital Stock, the ownership of the Capital Stock of the Company, such activities as are customary for a publicly traded holding company that is not itself an operating company, and other activities expressly contemplated hereby. For the avoidance of doubt, Parent Issuer shall be permitted to issue the Notes pursuant to the terms hereof and to carry out its obligations arising thereunder in accordance with the Note Documents and the Intercreditor Agreement; provided that so long as any of the First Lien Obligations or the Second Lien Obligations are outstanding, Parent Issuer shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any cash sum for any payment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance, sinking fund or similar cash payment with respect to, any Third Lien Obligations.

5.26

[RESERVED]

5.27

[RESERVED]

5.28

License Subsidiaries.

Parent Issuer and each of its Subsidiaries shall cause each FCC License and Spectrum Lease to be held directly by a corporation, limited liability company, or limited partnership organized under the laws of a jurisdiction in the United States that (a) is a wholly-owned direct or indirect Subsidiary of Parent Issuer, (b) does not engage in any business or activity other than the ownership and use of one or more FCC Licenses and/or Spectrum Leases and activities incidental thereto, (c) does not own or acquire any assets other than one or more FCC Licenses and/or Spectrum Leases and Capitol Stock of a Subsidiary with operating personnel for FCC-related business, and (d) does not have or incur any Indebtedness or other liabilities other than liabilities under the Note Documents, liabilities imposed by laws, including tax liabilities, or other liabilities incidental to its existence and permitted business and activities (any corporation, limited liability company, or limited partnership satisfying the foregoing requirements, a “License Subsidiary”).

ARTICLE VI

DEFAULTS AND REMEDIES

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6.1

Event of Default.

Each of the following is an “Event of Default”:

(a) Parent Issuer defaults and such default continues for a period of five (5) days in the payment when due of interest or fees on the Notes or other fees or payments under this Agreement;

(b) Parent Issuer defaults in the payment when due of the Principal Amount of, or premium, if any, on the Notes;

(c)

[RESERVED];

(d) Parent Issuer or any Guarantor, as applicable, fails to observe or perform any term or condition contained in Sections 4.9, 5.4(b), 5.5, 5.7(c), or 5.8 through 5.28 of this Agreement;

(e) any Note Party fails to observe or perform any covenant in any Note Document, other than as set forth in Section 6.1(d) or any other covenant a default in the performance of which is covered elsewhere in this Section 6.1, for 20 days after the earlier of (1) the date such Note Party becomes aware of the default or (2) written notice to Parent Issuer by the Holders of at least twenty-five percent (25%) of the aggregate Principal Amount of the outstanding Notes specifying the default and demanding that such default be remedied and stating that such notice is a “Notice of Default”;

(f) (1) the occurrence of any default or event of default in respect of the First Lien Notes or the Second Lien Notes if, in either such case, the effect of such default or event of default is to cause, or to permit the holder or holders of such Indebtedness (or a trustee on behalf of such holder or holders) to cause, such Indebtedness to become or be declared due and payable prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be (upon the giving or receiving of notice, lapse of time, both, or otherwise); provided, however, that an “Event of Default” under and as defined in the First Lien Purchase Agreement or an “Event of Default” under and as defined in the Second Lien Purchase Agreement shall constitute an Event of Default under this Section 6.1(f) only after a “Notice of Acceleration” as variously described in the First Lien Purchase Agreement or the Second Lien Purchase Agreement, as applicable, has been given and not rescinded in accordance with the terms of the First Lien Purchase Agreement or the Second Lien Purchase Agreement, as the case may be, or (2) after the satisfaction in full in cash of all First Lien Obligations and Second Lien Obligations, the occurrence of any default or event of default in respect of a Working Capital Line if the effect of such default or event of default is to cause, or to permit the holder or holders of such Indebtedness (or a trustee on behalf of such holder or holders) to cause, such Indebtedness to become or be declared due and payable prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be (upon the giving or receiving of notice, lapse of time, both, or otherwise);

(g) (1) a payment default occurs under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any other Indebtedness for money borrowed by Parent Issuer or any of its Subsidiaries in excess of

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$7,500,000, whether such Indebtedness now exists, or is created after the date of this Agreement, or (2) the occurrence of any other default or event of default under any such mortgage, indenture or instrument, if, in either such case, the effect of such default or event of default is to cause, or to permit the holder or holders of such Indebtedness (or a trustee on behalf of such holder or holders) to cause, such Indebtedness to become or be declared due and payable prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be (upon the giving or receiving of notice, lapse of time, both, or otherwise);

(h) a final judgment or final judgments for the payment of money are entered by a court or courts of competent jurisdiction against Parent Issuer or any of its Subsidiaries, which judgment or judgments are not paid, discharged or stayed for a period of 30 days; provided that the aggregate of all such undischarged judgments (exclusive of any applicable, independent third party insurance coverage or third party indemnity, on terms and conditions and from indemnitors reasonably acceptable to the Holders) exceeds $7,500,000;

(i) Parent Issuer or any of its Subsidiaries (other than any of Go Networks, IPW, Cygnus or any Subsidiary of Go Networks, IPW or Cygnus):

commences a voluntary bankruptcy proceeding;

2. consents to the entry of an order for relief against it in an involuntary bankruptcy case;

3. consents to the appointment of a custodian of it or for all or substantially all of its property;

makes a general assignment for the benefit of its creditors; or

generally is not paying its debts as they become due;

(j) 1. a court of competent jurisdiction enters an order or decree under any bankruptcy law that:

(A)

is for relief against Parent Issuer or any of its Subsidiaries;

(B)

appoints a custodian for all or substantially all of the property of Parent Issuer or any of its Subsidiaries; or orders the liquidation of Parent Issuer or any of its Subsidiaries; or

(C)

orders the liquidation of Parent Issuer or any of its Subsidiaries; and

(D)

the order or decree remains unstayed and in effect for 30 consecutive days; or

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2. a bankruptcy proceeding is commenced against Parent Issuer or any of its Subsidiaries and such proceeding shall continue for 30 consecutive days without being dismissed, bonded or discharged;

provided that this Section 6.1(j) shall not apply to any such order, decree or proceeding to the extent it solely applies to any of Go Networks, IPW, Cygnus or any Subsidiary of Go Networks, IPW or Cygnus;

(k) the Security Agreement or the Guaranty is held in any judicial proceeding to be unenforceable or invalid in any material respect or shall cease for any reason (other than the payment in full of the obligations under this Agreement or any other termination thereof in accordance with the terms hereof) to be in full force and effect in any material respect or Parent Issuer, any Guarantor, or any Person acting on behalf of any such Person, shall deny or disaffirm in writing its obligations under the Guaranty or under the Security Agreement (other than in accordance with the terms hereof);

(l) any representation, warranty, certification or other statement made or furnished to the Holders by or on behalf of Parent Issuer or any Guarantor in this Agreement, any Note Document or any instrument, certificate or financial statement furnished (in compliance with or in reference thereto) proves to be false, incorrect, breached, or misleading in any material respect when made or furnished;

(m) one or more ERISA Events occur that individually or in the aggregate result in or could reasonably be expected to result in liability of Parent Issuer or any of its Subsidiaries, or any of their respective ERISA Affiliates, in excess of $7,500,000 during the term of this Agreement; or Unfunded Pension Liabilities exist individually or in the aggregate for all Plans (excluding for purposes of such computation any Plans with respect to which assets exceed benefit liabilities), which exceeds $7,500,000; and

(n) any FCC License or Foreign License or other Spectrum Holdings owned or held by Parent Issuer or its Subsidiaries and required for the lawful ownership, lease, control, use, operation, management or maintenance of any Wireless Communications System owned by Parent Issuer or its Subsidiaries shall be cancelled, terminated, rescinded, revoked, suspended, impaired, otherwise finally denied renewal, or otherwise modified in any material adverse respect, or shall be renewed on terms that materially and adversely affect the economic or commercial value or usefulness thereof, the result of which, individually or in the aggregate together with similar events with respect to other FCC Licenses, Foreign Licenses or other Spectrum Holdings held by Parent Issuer or its Subsidiaries, could reasonably be expected to have a Material Adverse Effect; one or more of the FCC Licenses, Foreign Licenses or other Spectrum Holdings held by Parent Issuer or its Subsidiaries, the loss of which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, shall no longer be in full force and effect; or any other proceeding shall have been instituted by or shall have been commenced before any Governmental Authority that more likely than not will result in the cancellation, termination, rescission, revocation, impairment or suspension of one or more such FCC License, Foreign License or other Spectrum Holdings or result in such modification of one or more such FCC Licenses, Foreign Licenses or other Spectrum Holdings that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

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6.2

Acceleration.

Subject to the terms of the Intercreditor Agreement:

(a) upon the occurrence of an Event of Default (an “Insolvency Default”) specified in clause (i) or (j) of Section 6.1 hereof, all outstanding Notes will become due and payable immediately without further action or notice; and

(b) if any other Event of Default occurs and is continuing, Holders of not less than fifty-one percent (51%) of the aggregate Principal Amount of the outstanding Notes may declare all the Notes to be due and payable by notice in writing to Parent Issuer specifying the respective Event of Default and that it is a “Notice of Acceleration.”

For the avoidance of doubt, the Principal Amounts due under this Section 6.2 shall be due and payable in cash, together with all other amounts, whether interest or otherwise, due and payable under this Section 6.2, upon the Notes becoming due and payable under this Section 6.2.

The Required Holders, by written notice to Parent Issuer may on behalf of all of the Holders rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default (other than nonpayment of principal, interest or the premium that has become due solely because of the acceleration) have been cured or waived.

6.3

Other Remedies.

(a) If an Event of Default occurs and is continuing, the Holders or the Collateral Agent, as applicable, may pursue any available remedy (i) to collect the payment of principal, premium, and interest on the Notes, (ii) to enforce the performance of any provision of the Notes, this Agreement, or the Guaranty, or (iii) exercise remedies under the Collateral Documents.

(b) A delay or omission by any Holder or the Collateral Agent in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.

6.4

Waiver of Past Defaults.

Required Holders may on behalf of the Holders of all of the Notes waive an existing Default or Event of Default and its consequences hereunder, except (i) a continuing Default or Event of Default in the payment of the Principal Amount of, premium or interest on, the Notes and (ii) a Default or Event of Default arising from the failure to redeem or purchase any Note when required pursuant to the terms of this Agreement; provided, however, that the Required Holders may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration, subject to the terms of the final paragraph of Section 6.2. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Agreement; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

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Each of the Purchasers and subsequent Holders hereby consents to and approves of, and, if applicable, waives any Event of Default resulting solely in connection with and arising from the commencement of any bankruptcy, insolvency or liquidation proceeding to the extent the claims and/or liabilities in connection therewith affect only any of Go Networks, IPW, Cygnus or any Subsidiary of Go Networks, IPW or Cygnus.

6.5

Rights of Holders to Receive Payment.

Notwithstanding any other provision of this Agreement, the right of any Holder of a Note to receive payment of principal, premium and interest on such Note, on or after the respective due dates expressed in such Note, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

ARTICLE VII

[RESERVED]

ARTICLE VIII

REDEMPTION AND REPURCHASE OF THE NOTES

8.1

Optional Redemption; Mandatory Redemption.

(a) Optional Redemptions; Redemption Amount. Parent Issuer may at any time redeem all or a portion of the Notes, in a minimum amount of $5,000,000 and integral multiples of $1,000,000, upon not less than 30 nor more than 60 days’ prior written notice, at a redemption price equal to the sum of (i) the Principal Amount of the Notes to be redeemed plus (ii) any accrued and unpaid interest with respect to the Principal Amount of the Notes to be redeemed and all other amounts due and payable under the Note Documents to the date of redemption (the sum of the amounts referred to in clauses (i) and (ii), above, being the “Redemption Amount”); provided that all of the First Lien Obligations and the Second Lien Obligations must be satisfied in full before any of the Notes may be redeemed.

(b) Asset Sales. Subject to the terms of the Section 5.14, following the satisfaction in full of the First Lien Obligations and the Second Lien Obligations, within three (3) Business Days of any Asset Sale consummated simultaneously with or after the satisfaction in full of the First Lien Obligations and the Second Lien Obligations, Parent Issuer shall make a redemption of the Notes in an amount equal to the Net Proceeds of such Asset Sale (or, in the case of any redemption of the Notes occurring simultaneously with the satisfaction in full of the First Lien Obligations and/or the Second Lien Obligations, any excess Net Proceeds of such Asset Sale following the satisfaction in full of the First Lien Obligations and the Second Lien Obligations), at a redemption price equal to the Redemption Amount of the Notes to be redeemed; provided that in connection with any Asset Sale occurring simultaneously with or subsequent to the satisfaction in full of the Second Lien Obligations, to the extent that the Company’s cash and Cash Equivalent balance as of such date of payment (after giving effect to such repayment) has suffered a Cash Deficiency, the Company shall be permitted to retain all or a portion of the Net Proceeds in excess of any amount used to satisfy the Second Lien

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Obligations in full from such Asset Sale in an aggregate amount equal to such Cash Deficiency; and provided further that Parent Issuer shall not be required to redeem any Notes under this Section 8.1(b) until the aggregate Principal Amount of the Notes to be redeemed shall exceed $2,500,000. For the avoidance of doubt, if any redemption of the Notes under this Section 8.1(b) shall occur simultaneously with the satisfaction in full of the First Lien Obligations and/or the Second Lien Obligations, then the amount of the redemption required by this Section 8.1(b) shall be reduced by the amount so used to satisfy the First Lien Obligations or the Second Lien Obligations, as applicable.

(c)

[RESERVED]

(d)

[RESERVED]

(e) Mechanics of Redemptions. Any redemption pursuant to this Section 8.1 shall be made pursuant to the provisions of Sections 8.2 through 8.6 hereof.

8.2

Selection of Notes to Be Redeemed or Purchased.

If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, Parent Issuer will select Notes for redemption or purchase on a pro rata basis.

8.3

Notice of Redemption.

In the case of any optional redemption of Notes pursuant to Section 8.1(a) hereof, at least 30 days but not more than 60 days before the applicable redemption date, Parent Issuer will mail or cause to be mailed, by first class mail or courier, notice of redemption (a “Notice of Redemption”) to each Holder whose Notes are to be redeemed at its registered address. The notice will identify the Notes to be redeemed and will state:

(a)

the redemption date;

(b)

the redemption price;

(c) if any Note is being redeemed in part, the portion of the Principal Amount of such Note to be redeemed, and that, after the redemption date upon surrender of such Note, a new Note or Notes in aggregate Stated Value equal to the unredeemed portion of the Principal Amount of the original Note will be issued upon cancellation of such original Note;

(d) that Notes must be surrendered to Parent Issuer to collect the redemption price;

(e) that, unless Parent Issuer defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date; and

(f) the Section of this Agreement pursuant to which the Notes called for redemption are being redeemed.

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8.4

Effect of Notice of Redemption.

Once the Notice of Redemption is mailed in accordance with Section 8.3, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price. A Notice of Redemption may not be conditional.

8.5

Deposit of Redemption or Purchase Price.

Payments on Notes that are to be redeemed or purchased in an offer to purchase will be made in accordance with Section 3.2 of this Agreement.

If Parent Issuer complies with the provisions of the immediately preceding paragraph, on and after the redemption or purchase date, interest will cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest to the date of redemption will be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of Parent Issuer to comply with the preceding paragraph, interest shall be paid in cash on the unpaid Principal Amount, from the redemption or purchase date until such Principal Amount is paid, at the rate provided in the Notes and in accordance with Section 3.2 hereof.

8.6

Notes Redeemed or Purchased in Part.

Upon surrender of a Note that is redeemed or purchased in part, Parent Issuer will issue at the expense of Parent Issuer a new Note or Notes equal in aggregate Stated Value to the unredeemed or unpurchased portion of the Principal Amount of the Note surrendered.

ARTICLE IX

DEFINITIONS

As used in this Agreement, the following terms shall have the following meanings:

“Account Control Agreement Amendment” means an amendment to the Account Control Agreement relating to the Asset Sale Proceeds Account in substantially the form of Exhibit B.

“Account Control Agreements” means, collectively, (i) the Account Control Agreements, each dated as of July 14, 2006, among UBS Financial Services Inc., the Company and First Lien Collateral Agent and (ii) any other control agreements entered into by any Note Party, First Lien Collateral Agent and the financial institution or securities intermediary at which the Asset Sale Proceeds Account is maintained, pursuant to which such financial institution or securities intermediary confirms and acknowledges the First Lien Collateral Agent’s security interest in such accounts, and agrees that the financial institution or securities intermediary, as the case may be, will comply with instructions originated by the First Lien Collateral Agent as to the disposition of funds in such account, without further consent by any Note Party, as any such

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control agreement referred to clause (i) or (ii) above may be amended, restated, supplemented or otherwise modified from time to time.

“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, a Person shall be deemed to “control” or be “controlled by” a Person if such Person possesses, directly or indirectly, power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

“Affiliate Transactions” has the meaning assigned to such term in Section 5.17.

“Aggregate Amounts Due” has the meaning assigned to such term in Section 10.21.

“Agreement” means this Third Lien Subordinated Exchange Note Exchange Agreement and all Schedules, Exhibits and Annexes attached hereto.

“Anti-Money Laundering Laws” has the meaning assigned to such term in Section 4.36.

“Applicable Interest Rate” means, 7.5% per annum, unless there has occurred and is continuing, an Event of Default, in which case the Applicable Interest Rate shall be increased to include Default Interest.

“Applicable Law”means, collectively, all statutes, laws, rules, regulations, ordinances, decisions, writs, judgments, decrees, and injunctions of any Governmental Authority affecting Parent Issuer or any of its Subsidiaries or any collateral or any of their other assets, whether now or hereafter enacted and in force, and all Governmental Authorizations relating thereto.

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

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

(b)

licensing of intellectual property in the ordinary course of business;

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

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

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

“Asset Sale Proceeds Account” means an account of the Company established with UBS Financial Services, Inc. or another financial institution reasonably satisfactory to the Purchasers, for the purpose set forth in Section 5.10 and subject to an Account Control Agreement.

“Assumption Agreement” means an Assumption Agreement substantially in the form of Exhibit I attached hereto, pursuant to which any Person becoming a Holder after the date hereof shall become a party to (i) this Agreement, (ii) the Collateral Agency Agreement, and (iii) the Intercreditor Agreement.

“Avenue Capital” means Avenue Capital Management II, L.P.”.

“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.

“Board of Directors” means, as to any Person, the board of directors of such Person or any duly authorized committee thereof or similar governing body.

“BONY” has the meaning assigned to such term in the introductory paragraph of this Agreement.

“Business Day” means any day that is not a Legal Holiday.

“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is required to be accounted for as a capital lease on the balance sheet of that Person.

“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including, without limitation, partnership interests and membership interests, and any and all warrants, rights, or options to purchase or other arrangements or rights to acquire any of the foregoing.

“Cash Deficiency” has the meaning assigned to such term in Section 5.10.

“Cash Equivalents” means, as at any date of determination, (i) marketable securities (a) issued or directly and unconditionally guarantied as to interest and principal by the United States Government or (b) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date; (ii) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case

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maturing within one year after such date and having, at the time of the acquisition thereof, the highest rating obtainable from either Standard & Poor’s (“S&P”) or Xxxxx’x Investors Service, Inc. (“Moody’s”); (iii) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iv) certificates of deposit or bankers’ acceptances maturing within one year after such date and issued or accepted by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (b) has “Tier 1 capital” (as defined in such regulations) of not less than $100,000,000; and (v) shares of any money market mutual fund that (a) has at least 95% of its assets invested continuously in the types of investments referred to in clauses (i) through (iv) above, (b) has net assets of not less than $500,000,000, and (c) has the highest rating obtainable from either S&P or Moody’s. For the avoidance of doubt, Cash Equivalents shall not include any auction rate or similar securities where the obligor is not absolutely required to redeem or repay the Indebtedness in question within such one year (or shorter) period.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (i) the adoption or taking effect of any law, rule, regulation, treaty or order, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority, (iii) any determination of a court or other Governmental Authority or (iv) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

“Change of Control” means the occurrence of any of the following events:

(a) the approval by the holders of the Company’s Capital Stock or the Capital Stock of Parent Issuer of any plan or proposal for liquidation or dissolution;

(b) any “person” or “group” (each as defined in Rules 13d-3 and 13d-5 of the Securities Exchange Act of 1934, as amended) (other than a person or group comprised solely of holders of Parent Issuer’s Capital Stock as of the date hereof) shall become the beneficial owner (as so defined), directly or indirectly, of shares representing more than 35% of the aggregate voting power represented by the issued and outstanding Capital Stock of Parent Issuer; or

“Change of Control Offer” has the meaning assigned to such term in Section 5.18.

“Change of Control Payment” has the meaning assigned to such term in Section 5.18.

“Change of Control Payment Date” has the meaning assigned to such term in Section 5.18.

“Closing” has the meaning assigned to such term in Section 1.2.

“Code” means the Internal Revenue Code of 1986, as amended to the date hereof from time to time hereafter, and any successor statute.

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“Collateral” has the meaning assigned to such term in the Security Agreement.

“Collateral Agency Agreement” means the Third Lien Collateral Agency Agreement dated as of the date hereof, in substantially the form of Exhibit E hereto, by and between the Holders and the Collateral Agent.

“Collateral Agent” means BONY, acting in its capacity as collateral agent for the benefit of the Holders under the Collateral Agency Agreement, together with its successors and assigns.

“Collateral Documents” means the Security Agreement, the Collateral Agency Agreement, the Account Control Agreement Amendment, and all other instruments or documents delivered by any Note Party pursuant to this Agreement or any of the other Note Documents in order to grant to the Collateral Agent, on behalf of Holders, a Third Priority Lien on any property of such Note Party as security for the obligations; provided that if no First Lien Obligations are outstanding such Lien shall have priority over all other Liens in and to such Collateral (other than any Second Priority Liens and any Permitted Liens); and provided further that if no First Lien Obligations or Second Lien Obligations are outstanding such Lien shall have priority over all other Liens in and to such Collateral (other than any Permitted Liens).

“Common Stock” has the meaning assigned to such term in Section 1.2(c).

“Communications Act” means the Communications Act of 1934, as amended.

“Company” has the meaning assigned to such term in the introductory paragraph of this Agreement.

“Compliance Certificate” means an Officer’s Certificate delivered in accordance with Section 5.1(c).

“Continuing Directors” means the directors of Parent Issuer as of the date hereof, and each other director if, in each case, such other director’s nomination for election to the Board of Directors of Parent Issuer is recommended by at least a majority of the then Continuing Directors.

“Contractual Obligation” means as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“Covered Taxes” shall mean Taxes other than Excluded Taxes and Other Taxes.

“Cygnus” means Cygnus Communications, Inc., a Delaware corporation.

“Daily Interest Rate” means, as of each date of determination, the quotient of (i) the Applicable Interest Rate divided by (ii) 360.

“Default” means a condition or event that, after notice or after any applicable grace period has lapsed, or both, would constitute an Event of Default.

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“Default Interest” means, during any period during which there has occurred and is continuing any Event of Default, a rate per annum equal to 2% to the extent payment of such amount shall be legally enforceable.

“Definitive Agreement” has the meaning assigned to such term in Section 5.14(b).

“Domestic Subsidiary” means a Subsidiary of Parent Issuer incorporated, organized or otherwise formed under the laws of any state in the United States of America or the District of Columbia.

“Electing Holder” has the meaning assigned to such term in Section 5.1(a).

“Environmental Claim” means any investigation, written notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with any actual or alleged violation of, or liability under, any Environmental Law; (ii) in connection with any Release or threatened Release of or exposure to Hazardous Material; or (iii) in connection with any actual or alleged damage, injury, threat or harm to, natural resources or the environment.

“Environmental Laws” means any and all current or future foreign or domestic, federal or state (or any subdivision of either of them), statutes, ordinances, orders, rules, regulations, judgments, Governmental Authorizations, or any other requirements of Governmental Authorities (i) imposing liability or establishing standards for conduct for the preservation and protection of the environment; (ii) relating to any Hazardous Materials; or (iii) occupational safety and health, industrial hygiene or land use matters, as they relate to protection or preservation of the environment or toxic materials, substances or wastes, in any manner applicable to Parent Issuer or any of its Subsidiaries or any Facility.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and regulations promulgated thereunder.

“ERISA Affiliate,” as applied to any Person, means any trade or business (whether or not incorporated) under common control with that Person or treated as a single employer with that Person within the meaning of Section 414(b), 414(c), 414(m) or 414(o) of the Code or Section 4001 of ERISA.

“ERISA Event” means (a) a Reportable Event with respect to a Qualified Plan or a Multiemployer Plan; (b) a withdrawal by Parent Issuer or any of its Subsidiaries, or any of their respective ERISA Affiliates, from a Qualified Plan subject to Section 4063 of ERISA during a plan year in which it was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA); (c) a complete or partial withdrawal by Parent Issuer or any of its Subsidiaries, or any of their respective ERISA Affiliates, from a Multiemployer Plan; (d) the filing of a notice of intent to terminate, the treatment of a plan amendment as a termination under Section 4041 or 4041A of ERISA or the commencement of proceedings by the PBGC to terminate a Qualified Plan or Multiemployer Plan subject to Title IV of ERISA; (e) a failure by Parent Issuer or any of its Subsidiaries, or any of their respective ERISA Affiliates, to timely make required contributions to a Qualified Plan or Multiemployer Plan; (f) an event or condition which could reasonably be

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expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Qualified Plan or Multiemployer Plan; (g) the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Parent Issuer or any of its Subsidiaries, or any of their respective ERISA Affiliates; (h) an application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code with respect to any Plan; (i) a non-exempt prohibited transaction occurs with respect to any Plan for which Parent Issuer or any of its Subsidiaries may be directly or indirectly liable; or (j) a Qualified Plan becomes in an at-risk status pursuant to Section 303 of ERISA or Section 430 of the Code.

“Event of Default” has the meaning assigned to such term in Section 6.1.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, from time to time, and any successor statute.

“Excluded Taxes” means, with respect to any Holder or any other recipient of any payment to be made by or on account of any obligation of Parent Issuer hereunder (i) Taxes that are imposed on the net income (however denominated) and franchise Taxes imposed in lieu thereof (a) by the United States, (b) by any other Governmental Authority under the laws of which such recipient is organized or has its principal office or maintains its applicable lending office, or (c) by any Governmental Authority as a result of a present or former connection between such recipient and the jurisdiction of such Governmental Authority (other than any such connection arising solely from such recipient having executed, delivered or performed its obligations or received a payment under, or enforced, any of the Note Documents), (ii) any branch profits Taxes imposed by the United States or any similar Tax imposed by any other jurisdiction in which Parent Issuer is located, and (iii) any Tax that (x) is imposed on amounts payable at the time such recipient becomes a party hereto (or designates a new office), or (y) is attributable to such recipient’s failure or inability (other than as a result of a Change in Law after such recipient becomes a party hereto) to comply with its obligations under Sections 1.8(e) and (f), except, in the case of clause (x) above, to the extent that such recipient (or its assignor, if any) was entitled, at the time of designation of a new office (or assignment), to receive additional amounts from Parent Issuer with respect to such withholding Tax pursuant to Section 1.8.

“Facilities” means any and all real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by Parent Issuer.

“Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving undue pressure or compulsion to complete the transaction on the part of either party, determined in good faith by the Board of Directors of Parent Issuer (unless otherwise provided in this Agreement).

“FCC” means the Federal Communications Commission and any successor thereto.

“FCC License” means any paging, mobile telephone, specialized mobile radio, microwave, personal communications services or other license, permit, consent, certificate of compliance, franchise, approval, waiver or authorization granted or issued by the FCC, including

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authorizing or permitting the acquisition, construction or operation of any Wireless Communications System.

“FCC Rules” means all rules, regulations, written policies, orders and decisions of the FCC adopted under the Communications Act, in each case as from time to time in effect.

“First Lien Collateral Agency Agreement” means the Collateral Agency Agreement dated as of July 17, 2006, among BONY and the First Lien Noteholders. After any refinancing, extension or replacement of any Indebtedness under the First Lien Notes pursuant to the terms of the Intercreditor Agreement, the term “First Lien Collateral Agency Agreement” shall mean any replacement collateral agency agreement entered into in connection with such refinancing, extension or replacement.

“First Lien Collateral Agent” means BONY, acting in its capacity as collateral agent for the benefit of the First Lien Noteholders under the First Lien Collateral Agency Agreement, together with its successors and assigns. After any refinancing, extension or replacement of any Indebtedness under the First Lien Notes pursuant to the terms of the Intercreditor Agreement, the term “First Lien Collateral Agent” shall mean any replacement collateral agent in connection with such refinancing, extension or replacement.

“First Lien Collateral Documents” means the First Lien Security Agreement, the First Lien Collateral Agency Agreement, each Account Control Agreement, and all other instruments or documents delivered by any Note Party pursuant to the First Lien Purchase Agreement or any of the other documents related thereto in order to grant to the First Lien Collateral Agent, on behalf of the First Lien Noteholders, a First Priority Lien on any assets of such Note Party as security for the obligations of such Note Party to First Lien Noteholders.

“First Lien Documents” means the First Lien Purchase Agreement, the First Lien Notes, the First Lien Guaranty, the First Lien Parent Guaranty, the First Lien Collateral Documents, the First Lien Warrant Agreement, the First Lien Registration Rights Agreement, and all certificates, instruments and other documents made or delivered in connection therewith.

“First Lien Guaranty” means the Guaranty dated as of July 17, 2006, by certain Subsidiaries of the Company in favor of and for the benefit of BONY, as First Lien Collateral Agent. After any refinancing, extension or replacement of any Indebtedness under the First Lien Notes pursuant to the terms of the Intercreditor Agreement, the term “First Lien Guaranty” shall mean any replacement guaranty agreement entered into by such Subsidiaries of the Company in connection with such refinancing, extension or replacement.

“First Lien Note Maturity Date” shall mean the date on which all Indebtedness under the First Lien Notes has been repaid.

“First Lien Noteholder” means a holder of First Lien Notes.

“First Lien Notes” means the $350,000,000 in aggregate principal amount of senior secured notes of the Company due July 17, 2010 issued on July 17, 2006, or such lesser amount of such notes as the same may be reduced pursuant to redemption, repayment or otherwise as required or permitted by the First Lien Purchase Agreement and the Intercreditor Agreement.

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After any refinancing, extension or replacement of any Indebtedness under such senior secured notes of the Company pursuant to the terms of the Intercreditor Agreement, the term “First Lien Notes” shall mean any notes evidencing the Indebtedness of the Company incurred in connection with such refinancing, extension or replacement.

“First Lien Obligations” means the “Secured Obligations” as defined in the First Lien Security Agreement.

“First Lien Parent Guaranty” means that certain Parent Issuer Guaranty dated as of July 17, 2006 by Parent Issuer in favor of and for the benefit of BONY, as First Lien Collateral Agent. After any refinancing, extension or replacement of any Indebtedness under the First Lien Notes pursuant to the terms of the Intercreditor Agreement, the term “First Lien Parent Guaranty” shall mean any replacement guaranty agreement entered into by Parent Issuer in connection with such refinancing, extension or replacement.

“First Lien Purchase Agreement” means the Purchase Agreement dated as of July 17, 2006, by and among the Company, certain Subsidiaries of the Company, and the purchasers named therein, as amended by the First Amendment, dated as of March 12, 2008, pursuant to which the First Lien Notes were issued. After any refinancing, extension or replacement of any Indebtedness under the First Lien Notes pursuant to the terms of the Intercreditor Agreement, the term “First Lien Purchase Agreement” shall mean any replacement purchase agreement entered into by Parent Issuer in connection with such refinancing, extension or replacement.

“First Lien Registration Rights Agreement” means the Registration Rights Agreement dated as of July 17, 2006, among Parent Issuer and the purchasers listed therein.

“First Lien Security Agreement” means the Pledge and Security Agreement, dated as of July 17, 2006, among the Company, certain Subsidiaries of the Company, and BONY, as First Lien Collateral Agent. After any refinancing, extension or replacement of any Indebtedness under the First Lien Notes pursuant to the terms of the Intercreditor Agreement, the term “First Lien Security Agreement” shall mean any replacement security agreement entered into in connection with such refinancing, extension or replacement.

“First Lien Warrant Agreement” means the Warrant Agreement dated as of July 17, 2006, among the initial holders listed therein and Parent Issuer.

“First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any First Lien Collateral Document, that such Lien is perfected and has priority over any other Lien on such Collateral (other than any Permitted Liens).

“Fiscal Quarter” means a fiscal quarter of a Fiscal Year.

“Fiscal Year” means the fiscal year of Parent Issuer and its Subsidiaries ending on the last Saturday of each calendar year.

“Foreign License” means any paging, mobile telephone, specialized mobile radio, microwave, personal communications services or other license, permit, consent, certificate of compliance, franchise, approval, waiver or authorization granted or issued by any Governmental

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Authority other than the FCC, including authorizing or permitting the acquisition, construction or operation of any Wireless Communications System.

“Foreign Spectrum Holdings” means the right of a Person to use a defined portion of the radiofrequency spectrum resulting from the Person being the holder of Foreign Licenses, and rights of the Person arising under Foreign Spectrum Leases.

“Foreign Spectrum Lease” means any lease, license, agreement or other arrangement to which any Foreign Subsidiary of Parent Issuer is now or may hereafter become a party pursuant to which any such Foreign Subsidiary leases, licenses or otherwise acquires or obtains any rights, whether exclusive or non-exclusive, with respect to radiofrequency specified in a Foreign License issued to the lessor or sublessor, in each case, as amended, restated, supplemented or otherwise modified from time to time.

“Foreign Subsidiary” means a Subsidiary of Parent Issuer that is not a Domestic Subsidiary.

“GAAP” means the generally accepted accounting principles in the United States as in effect as of the date hereof, provided that with respect to Sections 5.1 and 5.6, GAAP shall mean generally accepted accounting principles in the United States as in effect from time to time.

“Geographic Service Area” means the geographic area over which a licensee is entitled to transmit signals pursuant to an FCC License or Underlying License. In the case of site-based licenses in the Educational Broadband Service and Broadband Radio Service, this area is bounded by a circle having 35 mile radius and centered at the stations’ reference coordinates, which was the previous protected service area to which incumbent licensees were entitled prior to January 10, 2005, and is bounded by the chords drawn between intersection points of the licensee’s previous 35 mile protected service area and those of respective adjacent market co-channel licensees.

“Go Networks” means Go Networks, Inc., a Delaware corporation.

“Governmental Authority” means (a) the government of the United States of America or any state or other political subdivision thereof, (b) any government or political subdivision of any other jurisdiction in which Parent Issuer or any of its Subsidiaries conducts business, or which properly asserts jurisdiction over any Facilities, (c) any entity properly exercising executive, legislative, judicial, regulatory or administrative functions of any such government or (d) any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization.

“Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.

“Guarantors” means each of:

(1)

the guarantors party to the Guaranty; and

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(2) any other Subsidiary of Parent Issuer that executes the Guaranty in accordance with the provisions of this Agreement,

and their respective successors and assigns.

“Guaranty” means the Third Lien Guaranty executed and delivered by Parent Issuer, the Company and the existing Material Subsidiaries of Parent Issuer on the date hereof and to be executed and delivered by additional Material Subsidiaries of Parent Issuer from time to time thereafter in accordance with Section 5.9, substantially in the form of Exhibit F annexed hereto.

“Hazardous Materials” means any chemical, material or substance, the generation, use, storage, transportation or disposal of which, or the exposure to which, is prohibited, limited or regulated pursuant to an Environmental Law.

“Holder”or “Holders” means the Purchasers (as the initial holders of the Notes) and their respective successors or assignees in whose name a Note is registered.

“Indebtedness” means, as applied to any Person, (i) all obligations for borrowed money, (ii) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP, (iii) any obligation owed for all or any part of the deferred purchase price of property or services (excluding any such obligations incurred under ERISA, trade payables incurred in the ordinary course of business, volume based vendor arrangements accounted for as deferred income on the balance sheet of Parent Issuer, obligations under earn-out agreements which are not yet earned and obligations under earn-out agreements to the extent such obligations are payable in shares of Capital Stock of Parent Issuer at Parent Issuer’s option), (iv) all obligations evidenced by notes, bonds (other than performance or surety bonds), debentures or other similar instruments, (v) all Indebtedness created or arising under any conditional sale or other title retention agreement with respect to any property or assets acquired by such Person (even though the rights and remedies of the seller or the lender under such agreement in the event of default are limited to repossession or sale of such property or assets), (vi) all obligations, contingent or otherwise, as an account party under any letter of credit or under acceptance, letter of credit or similar facilities to the extent not reflected as trade liabilities on the balance sheet of such Person in accordance with GAAP, (vii) all contingent obligations in respect of obligations of the kind referred to in clauses (i) through (vi) above, and (viii) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person.

“Indemnified Parties” has the meaning assigned to such term in Section 1.6.

“Indemnifying Parties” has the meaning assigned to such term in Section 1.6.

“Insolvency Default” has the meaning assigned to such term in Section 6.2.

“Intellectual Property” has the meaning assigned to such term in Section 4.14(a).

“Intercreditor Agreement” means the Intercreditor Agreement dated as of even date herewith, by and among the Company, Parent Issuer, certain Subsidiaries of the Company,

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BONY, as First Lien Collateral Agent, BONY, as Second Lien Collateral Agent, and BONY, as Collateral Agent, substantially in the form of Exhibit H hereto.

“Interest Payment Date” means each March 31, June 30, September 30 and December 31, except if such day is not a Business Day, the next succeeding Business Day shall be considered the Interest Payment Date.

“Interest Period” means, each quarterly period, beginning on and including an Interest Payment Date (or the date hereof in the case of the first Interest Period) and ending on and including the day next preceding the next succeeding Interest Payment Date.

“Investments” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including guaranties or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers, directors and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Capital Stock or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP; provided, however, that the term “Investment” shall not include: (a) trade and customer accounts receivable for goods furnished or services rendered in the ordinary course of business and payable in accordance with customary trade terms and (b) deposits, advances and prepayments to suppliers for goods and services in the ordinary course of business. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto minus all payments received in respect thereof, including payments of principal, interest, proceeds of sale or other disposition and cash dividends or distributions in respect thereof, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment.

“IPW” means IP Wireless, Inc., a Delaware corporation.

“Legal Holiday” means a Saturday, Sunday or day on which banks and trust companies in the principal place of business of Parent Issuer or in New York are not required to be open. If a payment date is a Legal Holiday, payment may be made on the next succeeding day that is not a Legal Holiday, and interest shall accrue for the intervening period.

“License Subsidiary” has the meaning assigned to such term in Section 5.28.

“Lien”means any lien, mortgage, pledge, assignment, security interest, fixed or floating charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any financing lease in the nature thereof but not including Operating Leases and any agreement to give any security interest) and any trust or deposit or other preferential arrangement having the practical effect of any of the foregoing.

“Losses” has the meaning assigned to such term in Section 1.6.

“Margin Stock” has the meaning assigned to that term in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.

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“Material Adverse Effect” means a material adverse effect on (a) the ability of Parent Issuer and its Subsidiaries to perform, or of the Collateral Agent and Holders to enforce, the obligations under the Note Documents, (b) the business, operations, properties, assets, condition (financial or otherwise) or prospects of Parent Issuer, the Company and the Material Subsidiaries taken as a whole or (c) the validity or enforceability of this Agreement or any of the other Note Documents or the rights or remedies of the Holders hereunder or thereunder.

“Material Contracts” means any or all of the following, as the context may require: (i) any material indenture, mortgage, deed of trust, agreement or other instrument evidencing or with respect to indebtedness in a principal amount in excess of $7,500,000 to which Parent Issuer or any of its Subsidiaries is a party and (ii) any other document, agreement or instrument that is material to the operation or business of Parent Issuer and its Subsidiaries, taken as a whole.

“Material Subsidiary” means each of NextWave Broadband, PacketVideo Corporation, a Delaware Corporation, NW Spectrum Co., a Delaware Corporation, AWS Wireless Inc., a Delaware corporation, WCS Wireless License Subsidiary, LLC, a Delaware limited liability company, IPW, each other License Subsidiary, each Foreign Subsidiary that holds any Foreign Spectrum Holdings and each other Subsidiary of Parent Issuer that constitutes a “Significant Subsidiary” within the meaning of Regulation S-X promulgated by the SEC; provided, however, that notwithstanding anything herein to the contrary, Go Networks shall not be deemed to be a Material Subsidiary.

“Maturity Date” means December 31, 2010.

“Maximum Rate”has the meaning assigned to such term in Section 10.5.

“Multiemployer Plan” means a “multiemployer plan” (within the meaning of Section 4001(a)(3) of ERISA) to which Parent Issuer or any of its Subsidiaries, or any of their respective ERISA Affiliates, may have any liability.

“NASDAQ” has the meaning assigned to such term in Section 4.38.

“Net Proceeds” means, with respect to any Asset Sale, cash proceeds of such Asset Sale net of bona fide direct costs of sale including, without limitation, (i) income taxes actually paid or reasonably estimated to be actually payable, as the case may be, as a result of such Asset Sale, (ii) transfer, sales, use and other taxes payable in connection with such Asset Sale, (iii) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than Indebtedness under the First Lien Notes, the Second Lien Notes or the Notes) that is secured by a Lien on the stock or assets in question or Indebtedness that is required to be repaid under the terms thereof as a result of such Asset Sale, (iv) brokers’ and financial advisors’ commissions and reasonable fees and expenses of counsel and other advisors (including, without limitation, accountants and investment bankers) and other reasonable costs and expenses incurred or estimated to be incurred in connection with such Asset Sale, (v) amounts to be paid to third parties having a beneficial interest in the assets sold, and (vi) reasonable reserves against indemnities or other obligations (so long as such indemnity or other obligations are outstanding) in respect of post-closing and purchase price adjustments

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(including adjustments related to the performance or results of any divested or acquired business) in connection with the acquisition or disposition of assets permitted hereunder.

“NextWave Broadband” means NextWave Broadband Inc., a Delaware corporation.

“Note Documents” means this Agreement, the Notes, the Guaranty, the Collateral Documents, the Collateral Agency Agreement, the Intercreditor Agreement, and all certificates, instruments and other documents made or delivered in connection herewith and therewith.

“Note Parties” means, collectively, Parent Issuer, the Guarantors and any other Subsidiary of Parent Issuer that is a party to a Note Document and “Note Party” means any of such Persons.

“Notes” has the meaning assigned to such term in Section 1.1.

“Notice of Redemption” has the meaning assigned to such term in Section 8.3.

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury, or any successor office or agency.

“Officer’s Certificate” means, with respect to any Person, a certificate executed on behalf of such Person (x) if such Person is a partnership or limited liability company, by the chairman of the Board of Directors (if an officer), chief executive officer, or chief financial officer or vice president of its general partner or managing member or other Person authorized to do so by its Organizational Documents, (y) if such Person is a corporation, on behalf of such corporation by its chairman of the Board of Directors (if an officer) or chief executive officer or its chief financial officer or vice president, and (z) if such person is Parent Issuer or a Subsidiary of Parent Issuer, a Responsible Officer.

“Operating Lease”, as applied to any Person, means any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) that is not a Capital Lease.

“Organizational Documents” means, with respect to any Person, the bylaws, partnership agreement, limited liability company agreement, operating agreement, management agreement or other similar or equivalent organizational, charter or constitutional agreement or arrangement.

“Other Taxes” means any present or future stamp, documentary, excise, privilege, property, intangible Taxes, charges or similar levies arising from any payment made under any and all Note Documents or from the execution or delivery by Parent Issuer or any of the Guarantors or from the filing or recording or maintenance of, or otherwise with respect to the exercise or enforcement by the Holders of their respective rights under any and all Note Documents.

“Parent Issuer” has the meaning assigned to such term in the introductory paragraph to this agreement.

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“Participant” has the meaning assigned to such term in Section 10.2.

“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).

“Permitted Business”means any business in which Parent Issuer or any of its Subsidiaries was engaged on the date hereof and any business that is a reasonable extension thereof or is ancillary or related thereto.

“Permitted Liens” means the following types of Liens:

(i) so long as any First Lien Obligations are outstanding, the First Priority Liens; provided, however, that no First Priority Lien shall be a Permitted Lien to the extent that such First Priority Lien is incurred in contravention of the terms of the Intercreditor Agreement;

(ii) so long as any Second Lien Obligations are outstanding, the Second Priority Liens; provided, however, that no Second Priority Lien shall be a Permitted Lien to the extent that such Second Priority Lien is incurred in contravention of the terms of the Intercreditor Agreement;

(iii)

the Third Priority Liens;

(iv) Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like Persons imposed without action of such parties, provided that payment thereof is not yet required;

(v) Liens incurred or deposits made in the ordinary course of business of Parent Issuer and any of the Guarantors in connection with worker’s compensation, unemployment insurance, other business-related insurance, social security and other like laws;

(vi) Leases, subleases, licenses and sublicenses granted to others in the ordinary course of business not interfering in any material respect with the conduct of the business of Parent Issuer and any of the Guarantors, and any interest or title of a lessor, sublessor, licensor or sublicensor or under any lease, sublease, license or sublicense;

(vii) Liens arising from judgments, decrees or attachments to the extent and only so long as such judgment, decree or attachment does not constitute an Event of Default;

(viii) easements, reservations, rights of way, restrictions, minor defects or irregularities in title and other similar liens affecting real property not interfering in any material respect with the ordinary conduct of the business of Parent Issuer and any of the Guarantors;

(ix) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of custom duties in connection with the importation of goods;

(x) Liens which constitute the right of set off of a customary nature of banker’s lien with respect to amounts on deposit, whether arising by operation of law or by

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contract, in connection with the arrangements entered into with banks in the ordinary course of business;

(xi) Liens incurred in connection with the extension, renewal or refinancing of the obligations secured by Liens of the type herein above, provided that any extension, renewal or replacement Lien shall be limited to the property encumbered by the existing Lien;

(xii)

Liens in favor of Parent Issuer or any of the Guarantors;

(xiii) Liens for Taxes the payment of which, at the relevant time, is not required by Section 5.3 hereof;

(xiv) precautionary financing statement filings regarding Operating Leases; and

(xv)

Liens securing Indebtedness incurred in accordance with Section 5.13(g).

“Permitted Spectrum Holdings” means (i) US Spectrum Holdings in any of the following spectrum bands: AWS, WCS, EBS, and BRS, and (ii) Foreign Spectrum Holdings or Spectrum Holdings in other spectrum bands, provided that the aggregate purchase price paid for all such Foreign Spectrum Holdings and Spectrum Holdings in other spectrum bands, plus the aggregate obligations of Parent Issuer and its Subsidiaries under Foreign Spectrum Leases and Spectrum Leases of rights in other spectrum bands, shall not exceed $10,000,000.

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, governmental authority or other entity.

“PIK Amount” means, as of any date of determination, an amount to be added to the outstanding principal amount under each Note on such date equal to the product of (i) the Daily Interest Rate multiplied by (ii) the Principal Amount of the applicable Note outstanding as of the immediately preceding Interest Payment Date (or in the case of the first Interest Period for each Note, the date hereof), subject to any reduction in the Principal Amount of the applicable Note as a result of any repayment of the principal of such Note prior to such date of determination in accordance with the terms hereof and the Intercreditor Agreement.

“Plan” means an “employee benefit plan” (as defined in Section 3(3) of ERISA) which is, or within the past five (5) years was, sponsored, maintained or contributed to by Parent Issuer or any of its Subsidiaries, or any of their respective ERISA Affiliates, or to which Parent Issuer or any of its Subsidiaries, or any of their respective ERISA Affiliates, has any potential or outstanding liability, including each Qualified Plan.

“Principal Amount” means, with respect to any Note, (i) as of the date hereof, the Stated Value of such Note as of the Closing, and (ii) on each other date of determination, the Stated Value of such Note, plus the aggregate of all PIK Amounts accrued prior to or on such date of determination, and minus the aggregate amount of any repayments of principal made prior to such date of determination in accordance with the terms of the Notes and the Intercreditor Agreement.

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“Purchasers” has the meaning assigned to such term in the introductory paragraph of this Agreement.

“Qualified Plan” means a “pension plan” (as defined in Section 3(2) of ERISA) intended to be tax-qualified under Section 401(a) of the Code that Parent Issuer or any of its Subsidiaries, or any of their respective ERISA Affiliates, sponsors or maintains, or at any time during the immediately preceding five (5) years has sponsored or maintained or contributed to, or to which Parent Issuer or any of its Subsidiaries, or any of their respective ERISA Affiliates, makes, is making or is obligated to make contributions, or has any potential or outstanding liability.

“Redemption Amount” has the meaning assigned to such term in Section 8.1(a).

“Register” has the meaning assigned to such term in Section 1.7(a).

“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater.

“Released Guarantor” has the meaning assigned to such term in Section 10.4(b).

“Reportable Event” means, as to any Plan, (a) any of the events set forth in Section 4043(b) of ERISA or the regulations thereunder, other than any such event for which the thirty (30) day notice requirement under ERISA has been waived in regulations issued by the PBGC.

“Required Holders” means the Holders of at least two-thirds (66-2/3%) of the aggregate Principal Amount of the outstanding Notes.

“Required Net Proceeds” has the meaning assigned to such term in Section 5.14(b).

“Required Sale Period” has the meaning assigned to such term in Section 5.14(b).

“Responsible Officer” means the chief executive officer, chief financial officer, president, any executive vice president or chief operating officer of Parent Issuer or the applicable Subsidiary of Parent Issuer, but in any event, with respect to financial matters, the chief financial officer, treasurer or controller of Parent Issuer or of the applicable Subsidiary of Parent Issuer.

“Restricted Payments” means (i) any dividend or other distribution, direct or indirect, on account of any shares of any class of Capital Stock of the Company or Parent Issuer now or hereafter outstanding (other than a dividend payable solely in additional shares of the same class of Capital Stock to the holders of that class), (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of the Company or Parent Issuer now or hereafter outstanding, (iii) any payment made to retire, or to obtain the surrender of, any outstanding, options or other rights to acquire shares of any class of Capital Stock of the Company or Parent Issuer now or hereafter outstanding (other than any outstanding warrants issued pursuant to the First Lien Warrant

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Agreement) and (iv) any payment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance, sinking fund or similar payment with respect to, any Indebtedness subordinated to the Notes.

“Rule 144” means Rule 144 as promulgated by the SEC under the Securities Act, as amended from time to time, and any successor rule or regulation thereto.

“Rule 144A” means Rule 144A as promulgated by the SEC under the Securities Act, as amended from time to time, and any successor rule or regulation thereto.

“SEC” means the Securities and Exchange Commission.

“SEC Documents” shall mean all reports, schedules, forms, and statements filed by Parent Issuer or the Company (including all exhibits, financial statements, notes and schedules thereto and documents incorporated by reference therein) required to be filed by it with the SEC pursuant to the reporting requirements of the Exchange Act.

“Second Lien Collateral Agency Agreement” means the Second Lien Collateral Agency Agreement dated as of even date herewith, among BONY and the holders of the Second Lien Notes. After any refinancing, extension or replacement of any Indebtedness under the Second Lien Notes pursuant to the terms of the Intercreditor Agreement, the term “Second Lien Collateral Agency Agreement” shall mean any replacement collateral agency agreement entered into in connection with such refinancing, extension or replacement.

“Second Lien Collateral Agent” means BONY, together with its successors and assigns, acting in its capacity as collateral agent for the benefit of the holders of the Second Lien Notes under the Second Lien Collateral Agency Agreement. After any refinancing, extension or replacement of any Indebtedness under the Second Lien Notes pursuant to the terms of the Intercreditor Agreement, the term “Second Lien Collateral Agent” shall mean any replacement collateral agent in connection with such refinancing, extension or replacement.

“Second Lien Collateral Documents” means the Second Lien Security Agreement, the Second Lien Collateral Agency Agreement, and all other instruments or documents delivered by any Note Party pursuant to the Second Lien Purchase Agreement or any of the other documents related thereto in order to grant to the Second Lien Collateral Agent, on behalf of the holders of the Second Lien Notes, a Second Priority Lien on any assets of such Note Party as security for the obligations of such Note Party to holders of the Second Lien Notes.

“Second Lien Documents” means the Second Lien Notes, the Second Lien Purchase Agreement, the Second Lien Guaranty, the Second Lien Parent Guaranty, the Second Lien Collateral Documents, the Second Lien Collateral Agency Agreement, the Second Lien Warrant Agreements and the Second Lien Registration Rights Agreement and all certificates, instruments and other documents made or delivered in connection herewith and therewith.

“Second Lien Guaranty” means the Second Lien Guaranty dated as of even date herewith, by certain Subsidiaries of the Company in favor of and for the benefit of BONY, as Second Lien Collateral Agent. After any refinancing, extension or replacement of any Indebtedness under the Second Lien Notes pursuant to the terms of the Intercreditor Agreement,

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the term “Second Lien Guaranty” shall mean any replacement guaranty agreement entered into by such Subsidiaries of the Company in connection with such refinancing, extension or replacement.

“Second Lien Noteholder” means a holder of Second Lien Notes.

“Second Lien Notes” means the $105,263,157 in aggregate principal amount of senior-subordinated secured second lien notes of the Company due December 31, 2011 issued on October 9, 2008, or such lesser amount of such notes as the same may be reduced pursuant to redemption, repayment or otherwise as required or permitted by the Second Lien Purchase Agreement and the Intercreditor Agreement. After any refinancing, extension or replacement of any Indebtedness under such senior-subordinated secured second lien notes of the Company pursuant to the terms of the Intercreditor Agreement, the term “Second Lien Notes” shall mean any notes evidencing the Indebtedness of the Company incurred in connection with such refinancing, extension or replacement.

“Second Lien Obligations” means the “Secured Obligations” as defined in the Second Lien Security Agreement.

“Second Lien Parent Guaranty” means that certain Second Lien Parent Guaranty dated as of even date herewith by Parent Issuer in favor of and for the benefit of BONY, as Second Lien Collateral Agent. After any refinancing, extension or replacement of any Indebtedness under the Second Lien Notes pursuant to the terms of the Intercreditor Agreement, the term “Second Lien Parent Guaranty” shall mean any replacement guaranty agreement entered into by Parent Issuer in connection with such refinancing, extension or replacement.

“Second Lien Purchase Agreement” means the Second Lien Subordinated Note Purchase Agreement dated as of the date hereof, by and among the Company, Parent Issuer, the purchasers set forth therein, any guarantor from time to time party thereto, and BONY, as collateral agent, in substantially the form attached hereto as Exhibit K. After any refinancing, extension or replacement of any Indebtedness under the Second Lien Notes pursuant to the terms of the Intercreditor Agreement, the term “Second Lien Purchase Agreement” shall mean any replacement purchase agreement entered into by Parent Issuer in connection with such refinancing, extension or replacement.

“Second Lien Registration Rights Agreement” means the Registration Rights Agreement dated as of even date herewith, among Parent Issuer and the initial purchasers of the Second Lien Notes.

“Second Lien Security Agreement” means the Second Lien Pledge and Security Agreement, dated as of even date herewith, among the Company, Parent Issuer, certain Subsidiaries of the Company, and BONY, as Second Lien Collateral Agent. After any refinancing, extension or replacement of any Indebtedness under the Second Lien Notes pursuant to the terms of the Intercreditor Agreement, the term “Second Lien Security Agreement” shall mean any replacement security agreement entered into in connection with such refinancing, extension or replacement.

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“Second Lien Warrant Agreements” means, collectively, (i) the Warrant Agreement dated as of the date hereof, among Parent Issuer and the initial holders listed therein, and (ii) on and after the Additional Warrant Issuance Date (as defined in the Second Lien Purchase Agreement), the Warrant Agreement dated as of the Additional Warrant Issuance Date (as defined in the Second Lien Purchase Agreement), among Parent Issuer and the initial holders of the Additional Warrants (as defined in the Second Lien Purchase Agreement) listed therein.

“Second Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Second Lien Collateral Document, that such Lien is perfected and has priority over any other Lien on such Collateral (other than any Permitted Liens) apart from the First Priority Liens for so long as the First Priority Liens shall exist.

“Securities” means, collectively, the Notes and the Guaranties.

“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute or law thereto.

“Security Agreement” means the Third Lien Pledge and Security Agreement dated as of even date herewith among the Collateral Agent, Parent Issuer, the Company and the other Guarantors, substantially in the form of Exhibit G to this Agreement, as the same may be amended, supplemented and modified from time to time.

“Series A Preferred Stock” means the convertible preferred stock issued pursuant to the Series A Preferred Stock Certificate of Designations.

“Series A Preferred Stock Certificate of Designations” means the Certificate of Designation, Preferences and Rights of the Series A Senior Convertible Preferred Stock of NextWave Wireless Inc., dated as of March 28, 2007.

“Sola Group” means, collectively, Sola Ltd or one or more of its Affiliates.

“Solvency Certificate” means a Solvency Certificate of the chief financial officer of Parent Issuer substantially in the form of Exhibit J attached hereto.

“Solvent” means, with respect to any Person, that as of the date of determination both (i) (a) the then fair saleable value of the property of such Person is (y) greater than the total amount of liabilities (including contingent liabilities but excluding amounts payable under intercompany promissory notes) of such Person and (z) not less than the amount that will be required to pay the probable liabilities on such Person’s then existing debts as they become absolute and matured considering all financing alternatives and potential asset sales reasonably available to such Person; (b) such Person’s capital is not unreasonably small in relation to its business or any contemplated or undertaken transaction; and (c) such Person does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due; and (ii) such Person is “solvent” within the meaning given that term and similar terms under Applicable Laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

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“Spectrum Holdings” means US Spectrum Holdings and/or Foreign Spectrum Holdings.

“Spectrum Lease” means any lease, license, agreement or other arrangement to which any Note Party is now or may hereafter become a party pursuant to which any Note Party leases, licenses or otherwise acquires or obtains any rights, whether exclusive or non-exclusive, with respect to radiofrequency specified in an Underlying License, in each case, as amended, restated, supplemented or otherwise modified from time to time.

“Stated Value” means the original principal amount of each Note as of the issuance date of such Note.

“Subsidiary” means, with respect to any Person, any corporation, partnership, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by the Person or one or more of the other Subsidiaries of that Person or a combination thereof.

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax, penalties and any similar liabilities with respect thereto.

“Third Lien Obligations” means the “Secured Obligations” as defined in the Security Agreement.

“Third Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is perfected and has priority over any other Lien on such Collateral (other than any Permitted Liens) apart from the First Priority Liens for so long as the First Priority Liens shall exist, and the Second Priority Liens for so long as the Second Priority Liens shall exist.

“Transactions” means the consummation of the transactions contemplated under this Agreement and the other Note Documents.

“UCC” means the Uniform Commercial Code, as it exists on the date of this Agreement or as it may hereafter be amended, in the State of New York.

“Underlying License” means any license granted by the FCC to a Person who is the lessor to Parent Issuer or its Subsidiaries under a Spectrum Lease or, in the case of a sublease, to the Person who is the lessor to the applicable sublessor to Parent Issuer or its Subsidiaries.

“Unfunded Pension Liabilities” means the amount of “unfunded benefit liabilities,” as defined in Section 4001(a)(18) of ERISA, with respect to Qualified Plans only.

“US Spectrum Holdings” means the right of a Person to use a defined portion of the radiofrequency spectrum within a Geographic Service Area, including rights resulting from such

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Person being the holder of FCC Licenses and rights of such Person arising under Spectrum Leases.

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

(1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

(2)

the then outstanding principal amount of such Indebtedness.

“Wireless Communications System” means any system to provide telecommunications services, including, without limitation, specialized mobile radio system, radio paging system, mobile telephone system, cellular radio telecommunications system, conventional mobile telephone system, personal communications system, EBS/ITFS-based system or BRS/MDS/MMDS-based system, data transmission system or any other paging, mobile telephone, radio, microwave, communications, broadband or data transmission system.

“Withdrawal Liabilities” means the amount of withdrawal liability as determined in accordance with Section 4201 of ERISA.

“Working Capital Line” has the meaning assigned to such term in Section 5.13(g).

ARTICLE X

MISCELLANEOUS

10.1

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:

(a) if to the Purchasers or any Holder, to the address set forth on its signature page hereto or as otherwise provided in writing to Parent Issuer, with a copy (which shall not constitute notice) to O’Melveny & Xxxxx LLP, 0000 Xxxxxx xx xxx Xxxxx, 0^xx Xxxxx, Xxx Xxxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxxx, Xx., Esq.;

(b) if to Collateral Agent, to the address set forth on its signature page hereto or as otherwise provided in writing to Parent Issuer and the Holders, with a copy (which shall not constitute notice) to XxXxxxx, Xxxxxxxx & Xxxxxxxx, P.C., 000 Xxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxxxx Xxxxxxxxxx, Esq.; and

(c) if to Parent Issuer or its Subsidiaries, to it at 00000 Xxxx Xxxxxx Xxxxx, Xxx Xxxxx, XX 00000 (Facsimile No. 858-480-3112), Attention: Xxxxx Xxxxxx, Esq.; with a copy

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(which shall not constitute notice) to Xxxx Xxxxxxx & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000 Attention: Xxxxxx Xxxxxxx, Esq.

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.

10.2

Successors and Assigns; Assignments.

(a) This Agreement shall inure to the benefit of and be binding upon the successors and registered assigns of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders.

(b) Each Holder may sell or assign all or any portion of its Notes to any Person, at any time, subject to clause (e) below.

(c) Each Holder may, in the ordinary course of its business and in accordance with the Note Documents and Applicable Law, including applicable securities laws, at any time sell to one or more Persons (each, a “Participant”), participating interests in all or a portion of its rights and obligations under this Agreement. Notwithstanding any such sale by such Holder of participating interests to a Participant, such Holder’s rights and obligations under this Agreement shall remain unchanged, such Holder shall remain solely responsible for the performance thereof, and Parent Issuer shall continue to deal solely and directly with such Holder and shall have no obligations to deal with any Participant in connection with such Holder’s rights and obligations under this Agreement or the Notes. Any agreement or instrument pursuant to which a Holder sells such a participation shall provide that such Holder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Holder will not, without the consent of the Participant, agree to any amendment, modification or waiver directly affecting an extension of the scheduled final maturity date of any Note allocated to such participation or a reduction of the Principal Amount of or the rate of interest payable on any Note allocated to such participation. Subject to the further provisions of this subsection 10.2(c), Parent Issuer agrees that each Participant shall be entitled to the benefits of Section 1.8 to the same extent as if it were a Holder and had acquired its interest by assignment pursuant to Section 10.2. A Participant shall not be entitled to receive any greater payment under Section 1.8 than the applicable Holder would have been entitled to receive with respect to the participation sold to such Participant unless the sale of the participation to such Participant is made with Parent Issuer’s prior written consent.

(d) In the event that any Holder sells any participation or assigns or transfers any interest in any Note, each Participant, successor or assign shall agree to (i) make the representations and warranties in Section 1.4 of this Agreement, and (ii) execute and deliver an Assumption Agreement. Each assignee, by its purchase or other acquisition of a Note, hereby

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agrees to be bound by the terms of the Collateral Agency Agreement and the Intercreditor Agreement.

(e) In no event may a Holder sell any participation or assign or transfer any interest in any Note to a business competitor of Parent Issuer or any Guarantor.

(f) Parent Issuer and each of the Guarantors shall assist any Holder in connection with any transfer, whether by sale or otherwise, assignment or participation permitted under this Agreement as reasonably required to enable the assigning or selling Holder to effect any such transfer, assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Parent Issuer and each Guarantor shall certify the correctness, completeness and accuracy of all descriptions of each of them and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials.

(g) Any Holder may furnish any information concerning Parent Issuer and the Guarantors in the possession of such Holder from time to time to transferees, assignees and participants (including prospective transferees, assignees and participants); provided that such Holder shall obtain from actual or potential transferees, assignees or participants confidentiality covenants substantially equivalent to those contained in Section 10.20.

10.3

Amendment and Waiver.

(a) Except as otherwise expressly provided elsewhere in this Agreement, this Agreement may be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may be given; provided that the same are in writing and signed by Parent Issuer, the Guarantors and the Required Holders; provided further, however, that any amendment, modification or supplement that:

reduces the Principal Amount of any Note;

2. (other than as set forth in this Agreement) reduces the rate of interest on any Note (including default interest), reduces the amount of principal or changes the principal maturity date of any Note or the redemption or prepayment provisions (other than any notice provisions relating thereto, which shall require only the written consent of the Required Holders) as specified above;

3. makes any Note payable in money or property other than that stated in the Note; or

4. makes any change in Sections 6.2, 6.4, 6.5 or 10.10 hereof or this Section 10.3 (or any related defined terms) or in the definition of “Required Holders”

shall not be binding upon any Holder of outstanding Notes that has not consented thereto in writing.

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(b) For all purposes under this Agreement, in determining whether the Holders of the requisite Principal Amount of outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, any Notes owned by Parent Issuer or any of its Subsidiaries or Affiliates (other than Avenue Capital and its Affiliates) shall be disregarded.

10.4

Release of Security Interest or Guaranty; Release of Guarantor.

(a) Upon the proposed sale or other disposition of any Collateral to any Person (other than an Affiliate of Parent Issuer) that is permitted by this Agreement or the Intercreditor Agreement or to which Required Holders have otherwise consented, or the sale or other disposition of all of the Capital Stock of a Guarantor to any Person (other than an Affiliate of Parent Issuer) that is permitted by this Agreement or to which Required Holders have otherwise consented, for which Parent Issuer or any of the Guarantors desire to obtain a security interest release or a release of the Guaranty from the Holders, Parent Issuer or such Guarantor shall deliver an Officer’s Certificate to the Holders and the Collateral Agent (i) stating that the Collateral or the Capital Stock subject to such disposition is being sold or otherwise disposed of in compliance with the terms hereof and (ii) specifying the Collateral or Capital Stock being sold or otherwise disposed of in the proposed transaction. Upon the receipt of such Officer’s Certificate, the Collateral Agent shall, at Parent Issuer’s expense, so long as the Collateral Agent (a) does not know that the facts stated in such Officer’s Certificate are not true and correct and (b), if the sale or other disposition of such item of Collateral or Capital Stock constitutes an Asset Sale, shall have received evidence satisfactory to it that arrangements satisfactory to the Required Holders have been made for delivery of the Net Proceeds from such Asset Sale as required by Section 5.14, execute and deliver, at Parent Issuer’s expense and without representation warranty or recourse, such releases of its security interest in such Collateral or such Guaranty as may be reasonably requested by Parent Issuer or such Guarantor.

(b) If (i) a Guarantor (a “Released Guarantor”) shall have been unconditionally and absolutely released as a guarantor of and obligor with respect to any and all Indebtedness and such release is not part of a plan of financing that contemplates such Guarantor guarantying any other Indebtedness of Parent Issuer or becoming a co-obligor with respect thereto, and (ii) no Default or Event of Default shall have occurred and be continuing, Parent Issuer may deliver to the Collateral Agent an Officer’s Certificate to such effect and from and after the date such Officer’s Certificate is delivered to the Collateral Agent, such Released Guarantor shall, subject to this Section 10.4(b) if such Released Guarantor shall again become a Guarantor, be released from its obligations under the Guaranty.

10.5

Interest Rate Limitation.

Notwithstanding anything to the contrary contained in any Note Document, the interest paid or agreed to be paid under the Note Documents shall not exceed the maximum rate of non-usurious interest permitted by Applicable Law (the “Maximum Rate”). If any Holder shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the Principal Amount of the Notes, or, if it exceeds such unpaid Principal Amount, refunded to Parent Issuer. In determining whether the interest contracted for, charged, or received by any Holder exceeds the Maximum Rate, such Person may, to the extent permitted by Applicable

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Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Notes hereunder.

10.6

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.

10.7

Document Metadata

Table of Contents

THIRD LIEN SUBORDINATED EXCHANGE NOTE