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NEXTWAVE TELECOM INC.
12% SENIOR SECURED SUBORDINATED NOTES DUE 2009
EXCHANGE RIGHTS AGREEMENT
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This EXCHANGE RIGHTS AGREEMENT, dated as of ________ ___,
1999 (this "Agreement"), is by and among NextWave Telecom Inc., a Delaware
corporation (the "Issuer"), Norwest Bank Minnesota, National Association, as
Trustee (the "Trustee") under the Indenture referred to below for the holders of
the notes issued thereunder ("Holders"), and each of the Holders named on the
signature pages hereto.
WHEREAS, the Issuer has issued to the Trustee, upon the
terms set forth in the Indenture of even date herewith (the "Indenture") among
the Issuer, the Guarantors named therein (the "Guarantors") and the Trustee,
$__________ aggregate principal amount of the Issuer's 12% Senior Secured
Subordinated Notes due 2009 (the "Initial Securities") to be guaranteed by the
Guarantors; and
WHEREAS, the Issuer has filed a Form T-3 for Applications
for Qualification of Indentures under the Trust Indenture Act of 1939 (as
amended, the "Form T-3") with the Securities and Exchange Commission (the
"Commission"); and
WHEREAS, the Issuer has agreed that, upon the Form T-3
becoming effective, it will promptly commence the exchange (the "Exchange") of
Initial Securities for debt securities having a like aggregate principal amount
and otherwise identical in all material respects to the Initial Securities (the
"Exchange Securities"; and, together with the Initial Securities, the
"Securities");
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and affirmed, the
Issuer, the Trustee and the Holders hereby agree as follows:
1. Exchange. Following the declaration of the effectiveness
of the Form T-3, the Issuer shall promptly commence the Exchange, it being the
objective of such Exchange to enable each Holder electing to exchange the
Initial Securities for Exchange Securities (assuming that such Holder is not at
any time an affiliate of the Issuer within the meaning of the Securities Act of
1933, as amended (the "Securities Act"), acquires the Exchange Securities in the
ordinary course of such Holder's business and has no arrangements with any
person to participate in the distribution of the Exchange Securities and is not
prohibited by any law or policy of the Commission from
participating in the Exchange) to trade such Exchange Securities from and after
their receipt without any limitations or restrictions under the Securities Act
and without material restrictions under the securities laws of the several
states of the United States..
As soon as practicable after the Form T-3 shall have become
effective, the Issuer shall:
(x) accept for exchange all the Initial Securities validly
tendered and not withdrawn pursuant to the Exchange Offer;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly
to each Holder, Exchange Securities, equal in principal amount to the
Initial Securities of such Holder so accepted for exchange.
The Indenture provides that all the Securities will vote
and consent together on all matters as one class and that none of the Securities
will have the right to vote or consent as a class separate from one another on
any matter.
Interest on each Exchange Security issued pursuant to the
Exchange Offer will accrue from the last interest payment date on which interest
was paid on the Initial Securities surrendered in exchange therefor or, if no
interest has been paid on the Initial Securities, from the date of original
issue of the Initial Securities.
Each Holder participating in the Exchange Offer shall be
required to represent to the Issuer that at the time of the consummation of the
Exchange Offer (i) any Exchange Securities received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in the distribution
of the Securities or the Exchange Securities within the meaning of the
Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405
of the Securities Act, of the Issuer or if it is an affiliate, such Holder will
comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, and (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to engage in, the
distribution of the Exchange Securities.
2. Procedures.
(a) The Issuer shall give written notice to the Holders
when the Form T-3 has been declared effective.
(b) The Issuer shall cooperate with each Holder to
facilitate the timely preparation and delivery of certificates representing the
Securities to be issued pursuant to the Exchange free of any restrictive legends
(other than legends relating to the Intercreditor Agreement that is summarized
in Exhibit B to the Indenture).
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(c) Not later than 10 business days after the effective
date of the Form T-3, the Issuer will provide the Trustee with printed
certificates for the Exchange Securities.
(d) Upon exchange of Initial Securities for Exchange
Securities, the Issuer shall xxxx, or caused to be marked, on the Initial
Securities so exchanged that such Initial Securities are being canceled in
exchange for the Exchange Securities. In no event shall the Initial Securities
be marked as paid or otherwise satisfied.
3. Miscellaneous.
(a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, except by the Issuer
and the written consent of the Holders of a majority in principal amount of the
Securities affected by such amendment, modification, supplement, waiver or
consents.
(b) Notices. All notices and other communications provided
for or permitted under this Agreement shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which guarantees
overnight delivery:
(1) if to a Holder, at the most current address given
by such Holder to the Issuer.
(2) if to the Issuer, at its address as follows:
NextWave Telecom Inc.
0 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Issuer has not, as of
the date hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement
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with respect to its securities that is inconsistent with the rights granted to
the Holders herein or otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding
upon the Issuer and its successors and assigns.
(e) 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 continue one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
(h) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall be affected or impaired thereby.
(i) Securities Held by the Issuer. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
is required hereunder, Securities held by the Issuer or its affiliates (other
than subsequent Holders if such subsequent Holders are deemed to be affiliates
solely by reason of their holdings of such Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(j) Submission to Jurisdiction. By the execution and
delivery of this Agreement, the Issuer submits to the nonexclusive jurisdiction
of the federal and state courts in the Borough of Manhattan in The City of New
York in such suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this
Exchange Rights Agreement to be duly executed and delivered as of the date first
above written.
NEXTWAVE TELECOM INC.
By:
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Name:
Title
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By:
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Name:
Title
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The foregoing Exchange Rights Agreement
is hereby confirmed and accepted as of
the date first above written.
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By:
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Name:
Title
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