EXHIBIT 5
ASSIGNMENT AND ASSUMPTION AGREEMENT
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Assignment and Assumption Agreement, dated as of January 19, 2000
(this "Agreement"), by and between Forstmann Little & Co. Equity
Partnership-VI, L.P., a Delaware limited partnership (the "Assignor"), and
FL Fund, L.P., a Delaware limited partnership (the "Assignee").
WHEREAS, pursuant to the Stock Purchase Agreement, dated as of
December 7, 1999 (the "Stock Purchase Agreement"), among the Assignor,
Forstmann Little & Co. Subordinated Debt and Equity Management Buyout
Partnership-VII, L.P., a Delaware limited partnership ("MBO-VII"), and
NEXTLINK Communications, Inc., a Delaware corporation ("NEXTLINK"), the
Assignor and MBO-VII have collectively agreed to purchase 265,625 shares of
Series D Convertible Participating Preferred Stock of NEXTLINK (the "Series
D Preferred") for an aggregate purchase price of $265,625,000 and to
purchase 584,375 shares of Series C Cumulative Convertible Participating
Preferred Stock of NEXTLINK for an aggregate purchase price of
$584,375,000;
WHEREAS, pursuant to section 8.6 of the Stock Purchase Agreement,
the Assignor is permitted to assign its rights and obligations under the
Stock Purchase Agreement to an Affiliate (as defined in the Stock Purchase
Agreement) of the Assignor;
WHEREAS, the Assignee is an Affiliate of the Assignor;
WHEREAS, the Assignor wishes to assign, and the Assignee wishes
to assume, the Assignor's rights and obligations under the Stock Purchase
Agreement relating to the purchase of 550 shares of Series D Preferred in
accordance with the terms of the Stock Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereby agree as follows (all
terms used herein and not otherwise defined herein shall have the meanings
given to them in the Stock Purchase Agreement):
1. Assignment. The Assignor hereby expressly assigns to the
Assignee the Assignor's right under the Stock Purchase Agreement relating
to the purchase of 550 shares of Series D Preferred in accordance with the
terms of the Stock Purchase Agreement; provided that in no event shall such
assignment release the Assignor from its obligations and liabilities under
the Stock Purchase Agreement.
2. Assumption. The Assignee hereby expressly assumes all of the
Assignor's rights under the Stock Purchase Agreement relating to the
purchase of 550 shares of Series D Preferred in accordance with the terms
of the Stock Purchase Agreement; provided that in no event shall such
assumption release the Assignor from its obligations and liabilities under
the Stock Purchase Agreement. The Assignee hereby represents and warrants
to NEXTLINK, as of the date hereof and as of the date of the Closing, the
representations and warranties made by the Assignor and MBO-VII to NEXTLINK
pursuant to Article III of the Stock Purchase Agreement, which
representations and warranties are incorporated herein by reference.
3. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
4. Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or
by reason of this Agreement. Notwithstanding the above, NEXTLINK shall be a
third party beneficiary of this Agreement.
5. Amendment and Modifications. This Agreement may be amended,
modified or supplemented only by the written agreement of the party against
whom enforcement of such amendment, modification or supplement is sought.
6. Governing Law. This Agreement and the rights and obligations
of the parties hereto shall be governed by, and construed in accordance
with, the laws of the State of New York, without giving effect to the
principles of conflicts of law thereof.
7. Headings; Counterparts. The headings and captions contained
herein are for convenience only and shall not control or affect the meaning
or construction of any provision hereof. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original
and which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Assignment and
Assumption Agreement as of the date first above written.
FORSTMANN LITTLE & CO. EQUITY
PARTNERSHIP-VI, L.P.
By: FLC XXXII Partnership, L.P.
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx,
a general partner
FL FUND, L.P.
By: FLC XXXI Partnership, L.P.
its general partner
By: FLC XXIX Partnership, L.P.
a general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx,
a general partner
