Exhibit 10.5
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of November 17,
1999 by and between NEXTLINK Communications, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx, Xxxxx & Co., Xxxxxxx Xxxxx Barney Inc., Credit Suisse
First Boston Corporation, TD Securities (USA) Inc., Barclays Capital Inc., Chase
Securities Inc., Banc of America Securities LLC, BancBoston Xxxxxxxxx Xxxxxxxx
Inc., Deutsche Bank Securities Inc., X.X. Xxxxxx Securities Inc. and PNC Capital
Markets, Inc. (the "Purchasers") of the 10 1/2% Senior Notes due 2009 (the
"Senior Notes") and the 12 1/8% Senior Discount Notes due 2009 (the "Senior
Discount Notes") of the Company.
1. CERTAIN DEFINITIONS.
For purposes of this Exchange and Registration Rights Agreement (this
"Agreement"), the following terms shall have the following respective meanings:
(a) "ADDITIONAL INTEREST" shall have the meaning assigned
thereto in Section 2(c) hereof.
(b) "CLOSING DATE" shall mean the date on which the
Securities are initially issued.
(c) "COMMISSION" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
(d) "EFFECTIVE TIME", in the case of (i) an Exchange Offer,
shall mean the date on which the Commission declares the Exchange Offer
registration statement effective or on which such registration statement
otherwise becomes effective and (ii) a Shelf Registration, shall mean the date
on which the Commission declares the Shelf Registration effective or on which
the Shelf Registration otherwise becomes effective.
(e) "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, or any successor thereto, as the same shall be amended from time to time.
(f) "EXCHANGE OFFER" shall have the meaning assigned thereto
in Section 2(a).
(g) "EXCHANGE SECURITIES" shall have the meaning assigned
thereto in Section 2(a).
(h) "OFFERING CIRCULAR" shall mean the offering circular
prepared by the Company in connection with the sale of the securities, dated
November 15, 1999, including any and all exhibits thereto.
(i) The term "HOLDER" shall mean each Purchaser for so long as
it owns any Registrable Securities, and such of its respective successors and
assigns who acquire Registrable Securities, directly or indirectly, from such
person or from any successor or assign of such person, in each case for so long
as such person owns any Registrable Securities.
(j) "INDENTURES" shall mean the Indenture, dated as of
November 17, 1999, between the Company and United States Trust Company of New
York, as Trustee with respect to the Senior Notes and the Indenture, dated as of
November 17, 1999, between the Company and U.S. Trust Company of Texas, as
Trustee with respect to the Senior Discount Notes.
(k) The term "PERSON" shall mean a corporation, association,
partnership, organization, business, individual, government or political
subdivision thereof or governmental agency.
(l) "PURCHASE AGREEMENT" shall mean the Purchase Agreement
dated November 12, 1999 between the Company and the Purchasers.
(m) "REGISTRABLE SECURITIES" shall mean the Securities;
PROVIDED, HOWEVER, that such Securities shall cease to be Registrable Securities
when (i) except if prior to the consummation of the Exchange Offer existing
Commission interpretations are changed such that the Exchange Securities
received by holders in the Exchange Offer for Registrable Securities are not or
would not be, upon receipt, transferable by each such holder (other than a
Restricted Holder) without restriction under the Securities Act in the
circumstances contemplated by Section 2(a), the Exchange Offer is conducted as
contemplated in Section 2(a); PROVIDED, HOWEVER, that any such Securities that,
pursuant to the last two sentences of Section 2(a), are included in a prospectus
for use in connection with resales by broker-dealers shall be deemed to be
Registrable Securities with respect to Sections 5, 6 and 9 until resale of such
Exchange Securities has been effected within the 30-day period referred to in
Section 2(a); (ii) in the circumstances contemplated by Section 2(b), a
registration statement registering such Securities under the Securities Act has
been declared or becomes effective and such Securities have been sold or
otherwise transferred by the holder thereof pursuant to such effective
registration statement; (iii) such Securities are sold pursuant to Rule 144 (or
any successor provision) promulgated under the Securities Act under
circumstances in which any legend borne by such Securities relating to
restrictions on transferability thereof, under the Securities Act or otherwise,
is removed by the Company
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or pursuant to the Indenture or such Securities are eligible to be sold pursuant
to paragraph (k) of Rule 144; or (iv) such Securities shall cease to be
outstanding.
(n) "REGISTRATION DEFAULT" shall have the meaning assigned
thereto in Section 2(c) hereof.
(o) "REGISTRATION EXPENSES" shall have the meaning assigned
thereto in Section 4 hereof.
(p) "RESTRICTED HOLDER" shall mean (i) a holder that is an
affiliate of the Company within the meaning of Rule 405 under the Securities
Act, (ii) a holder who acquires Exchange Securities outside the ordinary course
of such holder's business or (iii) a holder who has arrangements or
understandings with any person to participate in the Exchange Offer for the
purpose of distributing Exchange Securities.
(q) "SECURITIES" shall mean, collectively, the Senior Notes
and the Senior Discount Notes to be issued and sold to the Purchasers, and
securities issued in exchange therefor or in lieu thereof pursuant to the
Indentures.
(r) "SECURITIES ACT" shall mean the Securities Act of 1933, or
any successor thereto, as the same shall be amended from time to time.
(s) "SHELF REGISTRATION" shall have the meaning assigned
thereto in Section 2(b) hereof.
(t) "TRUST INDENTURE ACT" shall mean the Trust Indenture Act
of 1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) Except as set forth in Section 2(b) below, the Company
agrees to use its reasonable best efforts to file under the Securities Act no
later than 90 days after the Closing Date, a registration statement relating to
an offer to exchange (the "Exchange Offer") for a like aggregate principal
amount of debt securities of the Company which are substantially
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identical to each series of the Securities (and which are entitled to the
benefits of a trust indenture which is substantially identical to the Indenture
with respect to such series or is such Indenture and which has been qualified
under the Trust Indenture Act) except that they have been registered pursuant to
an effective registration statement under the Securities Act (such new debt
securities hereinafter called "Exchange Securities") for any or all of the
Registrable Securities. The Company agrees to use its reasonable best efforts to
cause such registration statement to become effective under the Securities Act
no later than 120 days after the Closing Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form and will comply with
all applicable tender offer rules and regulations under the Exchange Act. The
Company further agrees to commence and complete the Exchange Offer promptly
after such registration statement has become effective, hold the Exchange Offer
open for at least 30 days and exchange Exchange Securities for all Registrable
Securities that have been tendered and not withdrawn on or prior to the
expiration of the Exchange Offer. The Exchange Offer will be deemed to have been
completed only if the Exchange Securities received by holders other than
Restricted Holders in the Exchange Offer for Registrable Securities are, upon
receipt, transferable by each such holder without restriction under the
Securities Act and the Exchange Act and without material restrictions under the
blue sky or securities laws of a substantial majority of the States of the
United States of America. The Exchange Offer shall be deemed to have been
completed upon the earlier to occur of (i) the Company having exchanged the
Exchange Securities for all outstanding Registrable Securities pursuant to the
Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange
Offer, Exchange Securities for all Registrable Securities that have been
tendered and not withdrawn before the expiration of the Exchange Offer, which
shall be on a date that is at least 30 days following the commencement of the
Exchange Offer. The Company agrees (i) to include in the registration statement
a prospectus for use in connection with any resales by any holder of Exchange
Securities that is a broker-dealer and (ii) to keep such registration statement
effective for a period ending on the earlier of the 30th day after the Exchange
Offer has been completed or such time as such broker-dealers no longer own any
Registrable Securities. With respect to such registration statement the Company
and any such holder shall have the benefit of, and shall each provide to the
other, the rights of indemnification and contribution set forth in Section 6
hereof.
(b) If prior to the consummation of the Exchange Offer
existing Commission interpretations are changed such that the Exchange
Securities received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are not or would not be, upon receipt,
transferable by each such holder without restriction under the Securities Act,
in lieu of conducting the Exchange Offer contemplated by Section 2(a) the
Company shall file under the Securities Act a "shelf" registration statement
providing for the registration of, and the sale on a continuous or delayed basis
by the holders of, all of the Registrable Securities, pursuant to Rule 415 under
the Securities Act and/or any similar rule that may be adopted by the Commission
(the "Shelf Registration"). The Company agrees to use its reasonable best
efforts to cause the Shelf Registration to become or be declared effective no
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later than 120 days after the Closing Date and to keep such Shelf Registration
continuously effective for a period ending on the earlier of the second
anniversary of the Closing Date or such time as there are no longer any
Registrable Securities outstanding. The Company further agrees to supplement or
make amendments to the Shelf Registration, as and when required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration or by the Securities Act or rules and
regulations thereunder for shelf registration, and the Company agrees to furnish
to the holders of the Registrable Securities copies of any such supplement or
amendment prior to its being used and/or filed with the Commission.
(c) In the event that (i) the Company has not filed the
registration statement relating to the Exchange Offer on or before the 90th day
after the Closing Date, or (ii) such registration statement or, in lieu thereof,
the Shelf Registration, has not become effective or been declared effective by
the Commission on or before the 120th day after the Closing Date, or (iii) the
Exchange Offer has not been completed within 45 days after the initial effective
date of the registration statement (if the Exchange Offer is then required to be
made) or (iv) any registration statement required by Section 2(a) or 2(b) is
filed and declared effective but shall thereafter cease to be effective (except
as specifically permitted herein) without being succeeded promptly by an
additional registration statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default"), then
interest will accrue (in addition to the original issue discount and stated
interest, in the case of the Senior Discount Notes, and in addition to the
stated interest, in the case of the Senior Notes) at the rate of 0.5% per annum,
determined daily, on the principal amount of the Securities (or prior to
December 1, 2004, on the Accreted Value of the Senior Discount Notes),
determined daily (calculated on the same basis as interest on the Securities
shall be calculated) for the period from the occurrence of the Registration
Default until such time as no Registration Default is in effect (after which
time no such special interest will accrue). Such additional interest (the
"Additional Interest") will be payable in cash semi-annually in arrears on each
May 15 and November 15 in accordance with the Indenture. In addition, in the
event that the Exchange Offer has not been completed or, if applicable, the
Shelf Registration has not become effective or been declared effective by the
Commission on or before the 165th day after the Closing Date, then the per annum
rate of Additional Interest shall increase by an additional 0.25% for each
subsequent 90-day period (provided that such Additional Interest shall in no
event exceed 1.0% per annum in the aggregate), and Additional Interest will be
paid at such increased rate until such time as the Company completes the
Exchange Offer or, if applicable, the Shelf Registration has become or been
declared effective.
3. REGISTRATION PROCEDURES.
If the Company files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
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(a) At or before the Effective Time of the Exchange Offer or
the Shelf Registration, as the case may be, the Company shall qualify the
Indentures under the Trust Indenture Act.
(b) In the event that such qualification would require the
appointment of a new trustee under either Indenture or both Indentures, the
Company shall appoint a new trustee thereunder pursuant to the applicable
provisions of the applicable Indenture or Indentures.
(c) In connection with the Company's obligations with respect
to the Shelf Registration, if applicable, the Company shall use its reasonable
best efforts to effect or cause the Shelf Registration to permit the sale of the
Registrable Securities by the holders thereof in accordance with the intended
method or methods of distribution thereof described in the Shelf Registration.
In connection therewith, the Company shall:
(i) prepare and file with the Commission a registration
statement with respect to the Shelf Registration on any form which may
be utilized by the Company and which shall permit the disposition of
the Registrable Securities in accordance with the intended method or
methods thereof, as specified in writing to the Company by the holders
of the Registrable Securities;
(ii) as soon as reasonably possible, prepare and file with the
Commission such amendments and supplements to such registration
statement and the prospectus included therein as may be necessary to
effect and maintain the effectiveness of such registration statement
for the period specified in Section 2(b) hereof and as may be required
by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such registration statement;
(iii) as soon as reasonably possible, comply with the
provisions of the Securities Act applicable to the Company in
connection with the disposition of all of the Registrable Securities
covered by such registration statement in accordance with the intended
methods of disposition by the holders thereof, set forth in such
registration statement;
(iv) provide (A) the holders of the Registrable Securities to
be included in such registration statement and not more than one
counsel for all the holders of such Registrable Securities, (B) the
underwriters (which term, for purposes of this Agreement, shall include
a person deemed to be an underwriter within the meaning of Section
2(11) of the Securities Act), if any, thereof, (C) the sales or
placement agent, if any, therefor, and (D) one counsel for such
underwriters or agents, if any, reasonable opportunity to participate
in the preparation of such registration statement,
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each prospectus included therein or filed with the Commission, and each
amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified in Section
2(b), make available at reasonable times at the Company's principal
place of business or such other reasonable place for inspection by the
persons referred to in Section 3(c)(iv) who shall certify to the
Company that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration such financial and other
information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; PROVIDED,
HOWEVER, that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or
records reasonably designated by the Company as being confidential,
until such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration
statement or otherwise, except by disclosure by such party in breach of
this Agreement), or (B) such person shall be required so to disclose
such information pursuant to the subpoena or order of any court or
other governmental agency or body having jurisdiction over the matter
(subject to, and only to the extent required by, the requirements of
such order, and only after such person shall have given the Company
prompt prior written notice of such require ment), or (C) such
information is required to be set forth in such registration statement
or the prospectus included therein or in an amendment to such
registration statement or an amendment or supplement to such prospectus
in order that such registration statement, prospectus, amendment or
supplement, as the case may be, does not contain an untrue statement of
a material fact or omit to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(vi) promptly notify the selling holders of Registrable
Securities, the sales or placement agent, if any, therefor and the
managing underwriter or underwriters, if any, thereof and confirm such
advice in writing, (A) when such registration statement or the
prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same
has become effective, (B) of any comments by the Commission and by the
Blue Sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments or
supplements to such registration statement or prospectus or for
additional information, (C) of the issuance by the Commission of any
stop order suspending the effectiveness of such registration statement
or the initiation or
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threatening of any proceedings for that purpose, (D) if at any time the
representations and warranties of the Company contemplated by Section
3(c)(xv) or Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) at any time when
a prospectus is required to be delivered under the Securities Act, that
such registration statement, prospectus, prospectus amendment or
supplement or post-effective amendment, or any document incorporated by
reference in any of the foregoing, contains an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(vii) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto at the
earliest practicable date;
(viii) if requested in writing by any managing underwriter or
underwriters, any placement or sales agent or counsel for the holders
of Registrable Securities, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is required
by the applicable rules and regulations of the Commission and as such
managing underwriter or underwriters, such agent or such holder
specifies should be included therein relating to the terms of the sale
of such Registrable Securities, including, without limitation,
information with respect to the principal amount of Registrable
Securities being sold by any holder or agent or to any underwriters,
the name and description of such holder, agent or underwriter, the
offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities, to be sold by such holder or agent or to such underwriters;
and make all required filings of such prospectus supplement or
post-effective amendment promptly after notification of the matters to
be incorporated in such prospectus supplement or post-effective
amendment;
(ix) furnish to each holder of Registrable Securities, each
placement or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section 3(c)(iv) an
executed copy of such registration statement, each such amendment and
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein) and such number of copies
of such registration statement (excluding exhibits thereto and
documents incorporated by reference therein unless specifically so
requested by such holder, agent or underwriter, as the case may be) and
of the prospectus included in such registration
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statement (including each preliminary prospectus and any summary
prospectus), in conformity with the requirements of the Securities Act,
and such other documents, as such holder, agent, if any, and
underwriter, if any, may reasonably request in order to facilitate the
offering and disposition of the Registrable Securities owned by such
holder, offered or sold by such agent or underwritten by such
underwriter and to permit such holder, agent and underwriter to satisfy
the prospectus delivery requirements of the Securities Act; and the
Company hereby consents to the use of such prospectus (including such
preliminary and summary prospectus) and any amendment or supplement
thereto by each such holder and by any such agent and underwriter, in
each case in the form most recently provided to such party by the
Company, in connection with the offering and sale of the Registrable
Securities covered by the prospectus (including such preliminary and
summary prospectus) or any supplement or amendment thereto;
(x) use its reasonable best efforts to (A) register or qualify
the Registrable Securities to be included in such registration
statement under such securities laws or blue sky laws of such
jurisdictions as any holder of such Registrable Securities and each
placement or sales agent, if any, therefor and underwriter, if any,
thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain
effective under Section 2(b) above and for so long as may be necessary
to enable any such holder, agent or underwriter to complete its
distribution of Securities pursuant to such registration statement and
(C) take any and all other actions as may be reasonably necessary or
advisable to enable each such holder, agent, if any, and underwriter,
if any, to consummate the disposition in such jurisdictions of
Registrable Securities; PROVIDED, HOWEVER, that the Company shall not
be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section 3(c)(x),
(2) consent to general service of process in any such jurisdiction, (3)
subject itself to taxation in any jurisdiction where the Company is not
already subject to taxation or (4) make any changes to the Company's
certificate of incorporation or by-laws or any agreement between the
Company and its stockholders;
(xi) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal,
state or local, which may be required to effect the Shelf Registration
or the offering or sale in connection therewith or to enable the
selling holder or holders to offer, or to consummate the disposition
of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities
and the managing underwriters, if any, to facilitate the timely
preparation and delivery of
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certificates representing Registrable Securities to be sold, which
certificates shall be printed, lithographed or engraved, or produced by
any combination of such methods, and which shall not bear any
restrictive legends; and, in the case of an underwritten offering,
enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request at
least two business days prior to any sale of the Registrable
Securities;
(xiii) provide a CUSIP number for all Registrable Securities
of each series, not later than the effective date of the Shelf
Registration;
(xiv) enter into one or more underwriting agreements,
engagement letters, agency agreements or similar agreements, as
appropriate, including (without limitation) provisions relating to
indemnification and contribution substantially the same as those set
forth in Section 6 hereof, and take such other actions in connection
therewith as any holders of Registrable Securities aggregating at least
25% in aggregate principal amount of the Registrable Securities of
either series included in such Shelf Registration shall request in
order to expedite or facilitate the disposition of such Registrable
Securities; provided, that the Company shall not be required to enter
into any such agreement more than once with respect to all of the
Registrable Securities of either series and may delay entering into
such agreement until the consummation of any underwritten public
offering which the Company shall have then undertaken;
(xv) whether or not an agreement of the type referred to in
Section (3)(c)(xiv) hereof is entered into and whether or not any
portion of the offering contemplated by such registration statement is
an underwritten offering or is made through a placement or sales agent
or any other entity, (A) make such representations and warranties to
the holders of such Registrable Securities and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof
substantially the same as those set forth in Section 1 of the Purchase
Agreement and such other representations and warranties as are
customarily made with respect to the offering of debt securities
pursuant to a shelf registration statement on the applicable form under
the Act; (B) obtain an opinion or opinions of counsel to the Company
substantially the same as the opinions provided for in Section 7 of the
Purchase Agreement, addressed to such holder or holders and the
placement or sales agent, if any, therefor and the underwriters, if
any, thereof and dated the effective date of such registration
statement (and if such registration statement contemplates an
underwritten offering of a part or all of the Registrable Securities,
dated the date of the closing under the underwriting agreement relating
thereto) (it being agreed that the matters to be covered by such
opinion shall also include, without limitation, the due incorporation
of the Company and its subsidiaries; the qualification of the Company
and its subsidiaries to transact business as foreign corporations,
limited
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liability companies or limited partnerships, as the case may be; the
due authorization, execution and delivery of the relevant agreement of
the type referred to in Section (3)(c)(xiv) hereof, the due
authorization, execution, authentication and issuance, and the validity
and enforceability, of the Securities; the absence of material legal or
governmental proceedings involving the Company; the absence of a breach
by the Company or any of its subsidiaries of, or a default under,
material agreements binding upon the Company or any subsidiary of the
Company; the absence of governmental approvals required to be obtained
in connection with the Shelf Registration, the offering and sale of the
Registrable Securities, this Agreement or any agreement of the type
referred to in Section (3)(c)(xiv) hereof, except such approvals as may
be required under state securities or blue sky laws; and the compli
ance as to form of such registration statement and any documents
incorporated by reference therein and of the Indentures with the
requirements of the Securities Act and the Trust Indenture Act,
respectively; and, such opinion shall also state that such counsel has
no reason to believe that, as of the date of the opinion and of the
registration statement or most recent post-effective amendment thereto,
as the case may be, such registration statement and the prospectus
included therein, as then amended or supplemented, and the documents
incorporated by reference therein (in each case other than the
financial statements and other financial information contained therein)
contains or contained an untrue statement of a material fact or omits
or omitted to state therein a material fact necessary to make the
statements therein not misleading (in the case of such documents, in
the light of the circumstances existing at the time that such
documents were filed with the Commission under the Exchange Act)); (C)
obtain a "cold comfort" letter or letters from the independent
certified public accountants of the Company addressed to the selling
holders of Registrable Securities, the placement or sales agent, if
any, therefor and the underwriters, if any, thereof, dated (i) the
effective date of such registration statement and (ii) the effective
date of any prospectus supplement to the prospectus included in such
registration statement or post-effective amendment to such registration
statement which includes unaudited or audited financial statements as
of a date or for a period subsequent to that of the latest such
statements included in such prospectus (and, if such registration
statement contemplates an underwritten offering pursuant to any
prospectus supplement to the prospectus included in such registration
statement or post-effective amendment to such registration statement
which includes unaudited or audited financial statements as of a date
or for a period subsequent to that of the latest such statements
included in such prospectus, dated the date of the closing under the
underwriting agreement relating thereto), such letter or letters to be
in customary form and covering such matters of the type customarily
covered by letters of such type; (D) deliver such other documents and
certificates, including officers' certificates, as may be reasonably
requested by any holders of at least 25% in aggregate principal amount
of the Registrable Securities included in such Shelf Registration or
the placement or sales agent, if any, therefor and the managing
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underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above or
those contained in Section 5(a) hereof and the compliance with or
satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the Company;
and (E) undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities
of any proposal by the Company to amend or waive any provision of this
Agreement pursuant to Section 9(h) hereof and of any amendment or
waiver effected pursuant thereto, each of which notices shall contain
the text of the amendment or waiver proposed or effected, as the case
may be; and
(xvii) in the event that any broker-dealer registered under
the Exchange Act shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling group
or "assist in the distribution" (within the meaning of the Rules of
Fair Practice and the By-Laws of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended from time
to time) thereof, whether as a holder of such Registrable Securities or
as an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such broker-dealer in complying
with the requirements of such Rules and By-Laws, including, without
limitation, by (A) if such Rules or By-Laws, including Schedule E
thereto (or any successor thereto), shall so require, engaging a
"qualified independent underwriter" (as defined in such Schedule (or
any successor thereto)) to participate in the preparation of the
registration statement relating to such Registrable Securities, to
exercise usual standards of due diligence in respect thereto and, if
any portion of the offering contemplated by such registration statement
is an underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Registrable Securities, (B)
indemnifying any such qualified independent underwriter to the extent
of the indemnification of underwriters provided in Section 6 hereof,
and (C) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the
requirements of the Rules of Fair Practice of the NASD.
(d) In the event that the Company would be required, pursuant
to Section 3(c)(vi)(F) above, to notify the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company shall without delay prepare and
furnish to each such holder, to each placement or sales agent, if any, and to
each underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements
-12-
therein not misleading in light of the circumstances then existing. Each holder
of Registrable Securities agrees that upon receipt of any notice from the
Company pursuant to Section 3(c)(vi)(F) hereof, such holder shall forthwith
discontinue the disposition of Registrable Securities, pursuant to the
registration statement applicable to such Registrable Securities until such
holder shall have received copies of such amended or supplemented prospectus,
and if so directed by the Company, such holder shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
such holder's possession of the prospectus covering such Registrable Securities
at the time of receipt of such notice.
(e) The Company may require each holder of Registrable
Securities as to which any registration is being effected to furnish in writing
to the Company such information regarding such holder and such holder's intended
method of distribution of such Registrable Securities as the Company may from
time to time reasonably request in writing, but only to the extent that such
information is required in order to comply with the Securities Act, and may
exclude from any such registration the Registrable Securities of any such holder
who fails to furnish such reasonably requested information within 45 days after
such request. Each such holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously furnished by
such holder to the Company or of the occurrence of any event in either case as a
result of which any prospectus relating to such registration contains or would
contain an untrue statement of a material fact regarding such holder or such
holder's intended method of distribution of such Registrable Securities or omits
to state any material fact regarding such holder or such holder's intended
method of distribution of such Registrable Securities required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing, and promptly to furnish to the Company any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such holder or the distribution of such Registrable Securities, an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. Each such holder shall comply with the
provisions of the Securities Act applicable to such holder with respect to the
disposition by such holder of Registrable Securities covered by such
registration statement in accordance with the intended methods of disposition by
such holder set forth in such registration statement.
(f) Until such time as the Exchange Offer is completed and all
Securities have been exchanged for Exchange Securities, during two years after
the Closing Date, the Company will not, and will not permit any of its
"affiliates" (as defined in Rule 144 under the Act) to, resell any of the
Securities which constitute "restricted securities" under Rule 144 that have
been reacquired by any of them except pursuant to an effective registration
statement under the Act or any exemption therefrom.
-13-
4. REGISTRATION EXPENSES.
If the Company files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
The Company agrees to bear and to pay or cause to be paid all expenses
incident to the Company's performance of or compliance with this Agreement,
including, without limitation, (a) all Commission and any NASD registration and
filing fees and expenses, (b) all fees and expenses in connection with the
qualification of Registrable Securities for offering and sale under the State
securities and blue sky laws referred to in Section 3(c)(x) hereof, including
reasonable fees and disbursements of counsel for the placement or sales agent,
if any, or underwriters, if any, in connection with such qualifications, (c) all
expenses relating to the preparation, printing, distribution and reproduction of
each registration statement required to be filed hereunder, each prospectus
included therein or prepared for distribution pursuant hereto, each amendment
or supplement to the foregoing, and the certificates representing the
Securities, (d) messenger and delivery expenses, (e) fees and expenses of the
Trustees under the Indentures and of any escrow agent or custodian, (f) internal
expenses (including, without limitation, all salaries and expenses of the
Company's officers and employees performing legal or accounting duties), (g)
fees, disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and compliance),
(h) fees, disbursements and expenses of any "qualified independent underwriter"
engaged pursuant to Section 3(c)(xvii) hereof, (i) fees, disbursements and
expenses of one counsel for the holders of Registrable Securities retained in
connection with a Shelf Registration, as selected by the holders of at least a
majority in aggregate principal amount of the Registrable Securities being
registered, and fees, expenses and disbursements of any other persons, including
special experts, retained by the Company in connection with such registration
(collectively, the "Registration Expenses"). To the extent that any Registration
Expenses are incurred, assumed or paid by any holder of Registrable Securities
or any placement or sales agent therefor or underwriter thereof, the Company
shall reimburse such person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a written request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all agency or brokerage fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registered Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above, transfer taxes on resale
of any of the Securities by such holders and any advertising expenses incurred
by or on behalf of such holders in connection with any offers they may make.
-14-
5. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to, and agrees with, the Purchasers
and each of the holders from time to time of Registrable Securities that:
(a) Each registration statement covering Registrable
Securities and each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(c)(ix) hereof and any
further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as the
case may be, and, in the case of an underwritten offering of Registrable
Securities, at the time of the closing under the underwriting agreement relating
thereto, will conform in all material respects to the requirements of the
Securities Act and the Trust Indenture Act and any such registration statement
and any amendment thereto will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and any such prospectus or any
amendment or supplement thereto will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing; and at all times subsequent to the Effective Time
of any such registration statement when a prospectus would be required to be
delivered under the Securities Act, other than from (i) such time as a notice
has been given to holders of Registrable Securities pursuant to Section
3(c)(vi)(F) hereof until (ii) such time as the Company furnishes an amended or
supplemented prospectus pursuant to Section 3(d) hereof, each such registration
statement, and each prospectus (including any summary prospectus) contained
therein or furnished pursuant to Section 3(c)(ix) hereof, as then amended or
supplemented, will conform in all material respects to the requirements of the
Securities Act and the Trust Indenture Act and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by a holder of Registrable Securities or any placement or sales agent
therefor or underwriter thereof expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became effective or are
or were filed with the Commission, as the case may be, will conform or conformed
in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents will contain or
contained an untrue statement of a material fact or will omit or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED, HOWEVER, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with
-15-
information furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions herein contemplated
will not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
subsidiary of the Company is a party or by which the Company or any subsidiary
of the Company is bound or to which any of the property or assets of the Company
or any subsidiary of the Company is subject, nor will such action result in any
violation of the provisions of the certificate of incorporation, as amended, or
the by-laws of the Company or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company or
any subsidiary of the Company or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the consummation by
the Company of the transactions contemplated by this Agreement, except the
registration under the Securities Act of the Registrable Securities,
qualification of the Indentures under the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under State securities or blue sky laws in connection with the offering and
distribution of the Registrable Securities.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. Upon the registration of
the Registrable Securities pursuant to Section 2 hereof, and in consideration of
the agreements of the Purchasers contained herein, and as an inducement to the
Purchasers to purchase the Securities, the Company shall, and it hereby agrees
to, (i) indemnify and hold harmless each of the holders of Registrable
Securities to be included in such registration, and each person who participates
as a placement or sales agent or as an underwriter in any offering or sale of
such Registrable Securities against any and all losses, liabilities (joint or
several) claims, damages and expenses whatsoever to which such holder, agent or
underwriter may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any registration statement under which such
Registrable Securities were registered under the Securities Act, or any
preliminary, final or summary prospectus contained therein or furnished by the
Company to any such holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and
-16-
(ii) reimburse such holder, such agent and such underwriter for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; PROVIDED,
HOWEVER, that the Company shall not be liable to any such person in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any such registration statement, or preliminary, final
or summary prospectus, or amendment or supplement thereto, in reliance upon and
in conformity with written information furnished to the Company by any holders
of Registrable Securities or any placement or sales agent thereof or underwriter
thereof expressly for use therein;
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND
UNDERWRITERS. The Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section 2
hereof and to entering into any placement or underwriting agreement with respect
thereto, that the Company shall have received an undertaking reasonably
satisfactory to it from the holder of such Registrable Securities and from each
placement agent or underwriter named in any such placement agreement or
underwriting agreement, severally and not jointly, to (i) indemnify and hold
harmless the Company, and all other holders of Registrable Securities, against
any losses, claims, damages or liabilities to which the Company or such other
holders of Registrable Securities may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such holder, agent or underwriter, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such holder,
agent or underwriter expressly for use therein, and (ii) reimburse the Company
for any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that no such holder shall be required to undertake
liability to any person under this Section 6(b) for any amounts in excess of the
dollar amount of the proceeds to be received by such holder from the sale of
such holder's Registrable Securities pursuant to such registration.
(c) NOTICES OF CLAIMS, ETC. Each indemnified party shall give
written notice as promptly as reasonably practicable to each indemnifying party
of any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party (i) will not relieve
it from liability under paragraph (a) or (b) above unless and to the extent it
did not otherwise learn of such action and such failure results in
-17-
the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); PROVIDED, HOWEVER, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 6 is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the holders of Registrable Securities on the one hand and
any agents or underwriters on the other hand from the offering or sale of the
Registrable Securities, pursuant to this Agreement (provided that in no case
shall any agents or underwriters (except as may be provided in any agreement
-18-
among underwriters relating to the offering or sale of the Registrable
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Notes purchased by such Purchaser placed or
underwritten by it and distributed to the public) or (ii) if the allocation
provided by clause (i) is unavailable for any reason, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the holders of Registrable Securities on
the one hand and of any agents or underwriters on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by holders of Registrable Securities on
the one hand and any agents or underwriters on the other hand in connection with
the offering or sale of the Registrable Securities shall be deemed to be in the
same respective proportions as the total net proceeds from the offering or sale
thereof (before deducting expenses) received by such holders bear to the total
underwriting discounts and commissions received by any agents or underwriters
with respect to such offer or sale.
The relative fault of the holders of Registrable Securities on the one
hand and any agents or underwriters on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the holders of Registrable Securities or
by any agents or underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The holders of Registrable Securities and any agents or underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 6(d) were determined by pro rata allocation (even if the holders or any
agents or underwriters or all of them were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 6(d).
Notwithstanding the provisions of this Section 6(d), no holder shall be
required to contribute any amount in excess of the amount by which the dollar
amount of the proceeds received by such holder from the sale of any Registrable
Securities (after deducting any fees, discounts and commissions applicable
thereto) exceeds the amount of any damages which such holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission, and no underwriter or agent shall be required to contribute
any amount in excess of the amount by which the total price at which the
Registrable Securities placed or underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
underwriter or agent has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission.
-19-
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The holders' and
any underwriters' or agent's obligations in this Section 6(d) to contribute
shall be several in proportion to the principal amount of Registrable Securities
registered, underwritten or placed, as the case may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each holder, agent and underwriter and each person, if any, who
controls any holder, agent or underwriter within the meaning of Section 15 or
Section 20 of the Exchange Act; and the obligations of the holders and any
agents or underwriters contemplated by this Section 6 shall be in addition to
any liability which the respective holder, agent or underwriter may otherwise
have and shall extend, upon the same terms and conditions, to each officer and
director of the Company (including any person who, with his consent, is named in
any registration statement as about to become a director of the Company) and to
each person, if any, who controls the Company within the meaning of Section 15
or Section 20 of the Exchange Act.
7. UNDERWRITTEN OFFERINGS.
(a) SELECTION OF UNDERWRITERS. If any of the Registrable
Securities covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof shall be
designated by the holders of at least a majority in aggregate principal amount
of the Registrable Securities to be included in such offering, provided that
such designated managing underwriter or underwriters is or are reasonably
acceptable to the Company.
(b) PARTICIPATION BY HOLDERS. Each holder of Registrable
Securities hereby agrees with each other such holder that no such holder may
participate in any underwritten offering hereunder unless such holder (i) agrees
to sell such holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(c) CONSOLIDATED EARNINGS STATEMENTS. In the event of an
underwritten offering, the Company agrees to make generally available to its
securityholders as soon as practicable, but in any event not later than eighteen
months after the effective date of the applicable registration statement (as
defined in Rule 158(c) under the Act), a consolidated earnings statement of the
Company complying with Section 11(a) of the Act and the rules
-20-
and regulations of the Commission thereunder (including, at the option of the
Company, Rule 158 under the Act).
8. RULE 144.
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including, but not limited to, the reports under Section
13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144
adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any holder of Registrable Securities may reasonably request, all to
the extent required from time to time to make Rule 144 available to such holder
for the sale of Registrable Securities without registration under the Securities
Act within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Registrable Securities in connection with that holder's
sale pursuant to Rule 144, the Company shall deliver to such holder a written
statement as to whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 8 shall be deemed to require the Company
to register any of its securities under the Exchange Act.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company represents,
warrants, covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this
Agreement.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that
there would be no adequate remedy at law if any party fails to perform any of
its obligations hereunder and that each party may be irreparably harmed by any
such failure, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement, in any
court of the United States or any State thereof having jurisdiction.
(c) NOTICES. All notices, requests, claims, demands, waivers
and other communications hereunder shall be in writing and shall be deemed to
have been duly given when delivered by hand, if delivered personally or by
courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If to the
Company, to it at the address of the Company set forth in the Offering
-21-
Circular, Attention: General Counsel and if to a holder, to the address of such
holder set forth in the security register or other records of the Company, or to
such other address as any party may have furnished to the others in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
(d) PARTIES IN INTEREST. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the respective successors and assigns of the parties hereto. In
the event that any transferee of any holder of Registrable Securities shall
become a holder of Registrable Securities, in any manner, whether by gift,
bequest, purchase, operation of law or otherwise, such transferee shall, without
any further writing or action of any kind, be deemed a party hereto for all
purposes and such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities
such transferee shall be entitled to receive the benefits of and be conclusively
deemed to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to acquire and hold the
Registrable Securities subject to all of the terms hereof.
(e) SURVIVAL. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this Agreement
or made pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf of
any holder of Registrable Securities, any director, officer or partner of such
holder, any agent or underwriter or any director, officer or partner thereof, or
any controlling person of any of the foregoing, and shall survive delivery of
and payment for the Registrable Securities pursuant to the Purchase Agreement
and the transfer and registration of Registrable Securities by such holder and
the consummation of an Exchange Offer.
(f) LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE CONFLICTS OF LAWS PROVISIONS THEREOF.
(g) HEADINGS. The descriptive headings of the several Sections
and paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(h) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the other
writings referred to herein (including the Indenture and the form of Securities)
or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings
-22-
between the parties with respect to its subject matter. This Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only by a written instrument duly executed by the Company and the holders of at
least 66-2/3 percent in aggregate principal amount of each series of Registrable
Securities at the time outstanding. Each holder of any Registrable Securities at
the time or thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 9(h), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder.
(i) INSPECTION. For so long as this Agreement shall be in
effect, this Agreement and a complete list of the names and addresses of all the
holders of Registrable Securities shall be made available for inspection and
copying on any business day by any holder of Registrable Securities at the
offices of the Company at the address thereof set forth in Section 9(c) above or
at the office of the Trustee under the applicable Indenture.
(j) COUNTERPARTS. This agreement may be executed by the
parties in counterparts, each of which shall be deemed to be an original, but
all such respective counterparts shall together constitute one and the same
instrument.
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Agreed to and accepted as of the date referred to above.
NEXTLINK COMMUNICATIONS, INC.
By: /s/ R. XXXXX XXXXXX, XX.
-------------------------------
Name: R. Xxxxx Xxxxxx, Xx.
Title: Vice President
XXXXXXX, XXXXX & CO.
XXXXXXX XXXXX BARNEY INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
TD SECURITIES (USA) INC.
BARCLAYS CAPITAL INC.
CHASE SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
DEUTSCHE BANK SECURITIES INC.
X.X. XXXXXX SECURITIES INC.
PNC CAPITAL MARKETS INC.
By: Xxxxxxx, Xxxxx & Co.
/s/ XXXXXXX, SACHS & CO.
-------------------------------
(Xxxxxxx, Xxxxx & Co.)
