EXHIBIT 4.3
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of April 25, 1996 by and
between NEXTLINK Communications, L.L.C., a limited liability company formed
under the laws of the State of Washington (the "Company"), NEXTLINK Capital,
Inc., a Washington corporation ("Capital" and, together with the Company, the
"Issuers"), and Goldman, Sachs & Co., Bear, Stearns & Co. Inc., Salomon Brothers
Inc and Toronto Dominion Securities (USA) Inc. (collectively, the "Purchasers")
of the 12 1/2% Senior Notes due April 15, 2006 of the Issuers.
1. Certain Definitions.
For purposes of this Exchange and Registration Rights Agreement, the following
terms shall have the following respective meanings:
(a) "Closing Date" shall mean the date on which the Securities are
initially issued.
(b) "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.
(c) "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.
(d) "Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
(e) "Exchange Offer" shall have the meaning assigned thereto in Section
2(a).
(f) "Exchange Securities" shall have the meaning assigned thereto in
Section 2(a).
(g) The term "holder" shall mean each of the Purchasers 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.
(h) "Indenture" shall mean the Indenture, dated as of April 25, 1996,
between the Company, Capital and United States Trust Company of New York, as
Trustee.
(i) The term "person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
(j) "Purchase Agreement" shall mean the Purchase Agreement dated April 18,
1996 between the Company, Capital and the Purchasers.
(k) "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 90-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 Issuers 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.
(l) "Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
(m) "Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
(n) "Restricted Holder" shall mean (i) a holder that is an affiliate of the
Company or Capital 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.
(o) "Securities" shall mean, collectively, the 12 1/2% Senior Notes due
April 15, 2006, of the Issuers to be issued and sold to the Purchasers, and
securities issued in exchange therefor or in lieu thereof pursuant to the
Indenture.
(p) "Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
(q) "Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
(r) "Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
(s) "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.
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2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Issuers agree to use their
reasonable best efforts to file under the Securities Act no later than 30 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 Issuers which are substantially identical to the Securities
(and which are entitled to the benefits of a trust indenture which is
substantially identical to the Indenture or is the 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 and
such new debt securities will not contain provisions for Special Interest or
provisions restricting transfer in the absence of registration under the
Securities Act (such new debt securities hereinafter called "Exchange
Securities") for any or all of the Registrable Securities. The Issuers agree to
use their reasonable best efforts to cause such registration statement to become
effective under the Securities Act as soon as practicable thereafter. The
Exchange Offer will be registered under the Act on the appropriate form and will
comply in all material respects with all applicable tender offer rules and
regulations under the Exchange Act. The Issuers further agree to commence 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, it being understood that
broker-dealers receiving Securities will be subject to certain prospectus
delivery requirements with respect to resale of the Securities. The Exchange
Offer shall be deemed to have been completed upon the earlier to occur of (i)
the Issuers having exchanged the Exchange Securities for all outstanding
Registrable Securities pursuant to the Exchange Offer and (ii) the Issuers
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 Issuers agree (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 90th 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 Issuers 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 on or 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 Issuers 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
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"Shelf Registration"). The Issuers agree to use their reasonable best efforts to
cause the Shelf Registration to become or be declared effective and to keep such
Shelf Registration continuously effective for a period ending on the earlier of
the third anniversary of the Closing Date or such time as there are no longer
any Registrable Securities outstanding. The Issuers further agree 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
Issuers for such Shelf Registration or by the Securities Act or rules and
regulations thereunder for shelf registration, and the Issuers agree 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 Issuers have not filed the registration
statement relating to the Exchange Offer (or, if applicable, the Shelf
Registration) on or before the 30th day after the Closing Date, or (ii) such
registration statement (or, if applicable, 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 30 business 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 stated interest on the Securities) at the rate of
0.25% per annum on the principal amount of the Securities, for the period from
the occurrence of the Registration Default until such time as no Registration
Default is in effect. Such additional interest (the "Special Interest") will be
payable in cash semi-annually in arrears on each October 15 and April 15 in
accordance with the Indenture. For each 90-day period that the Registration
Default continues, the per annum rate of Special Interest shall increase by an
additional 0.25%, provided that such rate shall in no event exceed 1.0% per
annum in the aggregate. Special interest, if any, will be computed on the basis
of a 365 or 366 day year, as the case may be, and the number of days actually
elapsed.
3. Registration Procedures.
If the Issuers file a registration statement pursuant to Section 2(a) or
Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Issuers shall qualify the Indenture under
the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of a
new trustee under the Indenture, the Issuers shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Issuers' obligations with respect to the Shelf
Registration, if applicable, the Issuers shall use their 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 Issuers shall:
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(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
Issuers 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 Issuers 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 Issuers 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 Exchange and Registration Rights 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, 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 Issuers' 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 Issuers 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 Issuers, and cause the officers, employees, counsel and independent
certified public accountants of the Issuers 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 Issuers 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 Issuers
prompt prior written notice of such requirement), 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
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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 threatening of any proceedings for that purpose, (D) if at
any time the representations and warranties of the Issuers 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 Issuers 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 their 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;
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(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 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 Issuers hereby consent 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 Issuers, 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 their 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 Issuers shall not be required for any such purpose to (1)
qualify as a limited liability company or corporation, as the case may be,
in any jurisdiction wherein they 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 Issuers are not already subject to taxation or
(4) make any changes to the Company's certificate of formation, limited
liability company agreement or any other agreement between the Company and
its members or to Capital's Certificate of Incorporation or By-Laws or any
agreement between Capital and its shareholders;
(xi) use their 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;
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(xii)cooperate with the holders of the Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of 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, 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 included in such Shelf Registration shall request in
order to expedite or facilitate the disposition of such Registrable
Securities; provided, that the Issuers shall not be required to enter into
any such agreement more than once with respect to all of the Registrable
Securities and may delay entering into such agreement until the consummation
of any underwritten public offering which such Issuers 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 Issuers
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 formation and good standing of the Company and its subsidiaries; the
qualification of the Company and its subsidiaries to transact business as
foreign limited 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 Exchange and
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Registration Rights 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 compliance as to form of such
registration statement and any documents incorporated by reference therein
and of the Indenture 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 Issuers 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 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 or
Capital; 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 or Capital to amend or waive any provision of this
Exchange and Registration Rights 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;
(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")
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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; and
(xviii)comply with all applicable rules and regulations of the Commission,
and make generally available to its security holders as soon as practicable
but in any event not later than eighteen months after the effective date of
such registration statement, an earning statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act (including,
at the option of the Company, Rule 158 thereunder).
(d) In the event that the Issuers 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 Issuers 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 therein not misleading in light of the circumstances then existing.
Each holder of Registrable Securities agrees that upon receipt of any notice
from the Issuers 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 Issuers, 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 Issuers may require each holder of Registrable Securities as to
which any registration is being effected to furnish in writing to the Issuers
such information regarding such holder and such holder's intended method of
distribution of such Registrable Securities as the Issuers 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. Each such holder agrees to
notify the Issuers as promptly as practicable of any inaccuracy or change in
information previously furnished by such holder to the Issuers 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
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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 Issuers 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 three years after the Closing Date, the Issuers will not, and will
not permit any of their "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; provided,
however, that, for purposes of this paragraph, "affiliates" shall not include
the Purchasers or any of their affiliates other than the Company and its
subsidiaries, officers, managers and directors.
4. Registration Expenses.
If the Issuers file 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 Issuers' performance of or compliance with this Exchange and
Registration Rights 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 Trustee under the Indenture and of any
escrow agent or custodian, (f) internal expenses (including, without limitation,
all salaries and expenses of the Issuers' officers and employees performing
legal or accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Issuers (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
-11-
Issuers 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.
5. Representations and Warranties.
The Company and Capital, jointly and severally, represent and warrant to,
and agree with, each Purchaser 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 Issuers furnish 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 Issuers
by a holder of Registrable Securities or any placement or sales agent
therefor or underwriter thereof expressly for use therein.
-12-
(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 information furnished in
writing to the Issuers by a holder of Registrable Securities expressly for
use therein.
(c) The compliance by the Issuers with all of the provisions of this
Exchange and Registration Rights 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, Capital or any subsidiary of the Company is
a party or by which the Company, Capital or any subsidiary of the Company is
bound or to which any of the property or assets of the Company, Capital or
any subsidiary of the Company is subject, nor will such action result in any
violation of the provisions of the certificate of formation, or the limited
liability company agreement of the Company, in each case, as in effect at
the applicable time, or the Certificate of Incorporation or By-Laws of
Capital, in each case, as in effect at the applicable time, or any statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, Capital 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
or Capital of the transactions contemplated by this Exchange and
Registration Rights Agreement, except the registration under the Securities
Act of the Registrable Securities, qualification of the Indenture 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 Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and Capital.
6. Indemnification.
(a) Indemnification by the Issuers. 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 and Capital, jointly and severally, shall,
and hereby agree 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 losses, claims, damages or
liabilities, joint or several, 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
-13-
Securities Act, or any preliminary, final or summary prospectus contained
therein or furnished by the Issuers 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
(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 Issuers 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 Issuers 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
Issuers 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
Issuers shall have received an undertaking reasonably satisfactory to them 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 Issuers, and
all other holders of Registrable Securities, against any losses, claims, damages
or liabilities to which the Issuers 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 Issuers 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 Issuers by such holder, agent or underwriter
expressly for use therein, and (ii) reimburse the Issuers for any legal or other
expenses reasonably incurred by the Issuers 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. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying
-14-
party of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall not be
liable to such indemnified party for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action 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. No indemnifying party shall be liable for the cost of any settlement
effected by an indemnified party without the written consent of such
indemnifying party, which consent shall not be unreasonably withheld. In no
event shall any indemnifying party be liable for the fees and expenses of more
than one firm or counsel (except to the extent that local counsel, in addition
to such firm or counsel, is required for effective representation) to represent
all indemnified parties with respect to a single action or separate but
substantially similar actions in the same jurisdiction arising out of the same
general allegations.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect not
only (i) the relative benefits received by the holders of the Registrable
Securities, on the one hand, and any agents or underwriters, on the other, from
any offering or sale of the Registrable Securities, but also (ii) the relative
fault of the indemnifying party and the indemnified party in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the holders of the
Registrable Securities on the one hand and any agents or underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from any offering or sale thereof (before deducting expenses) received by such
holders bear to the total discounts and commissions received by any such agents
or underwriters with respect to such offer or sale. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contributions 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 in this Section 6(d). The
-15-
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, or liabilities (or actions in respect thereof) referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. 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. 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 Issuers under this Section 6 shall be in addition
to any liability which the Issuers 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 the Securities 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 Issuers (including any person who, with his consent,
is named in any registration statement as about to become a director of the
Company or Capital) and to each person, if any, who controls the Issuers within
the meaning of the Securities 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
Issuers.
(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.
-16-
(c) Consolidated Earning Statements. In the event of an underwritten offering,
the Issuers 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 earning statement of the Company and Capital (which
need not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158 under the Act).
8. Rule 144.
The Issuers covenant to the holders of Registrable Securities that to the
extent they shall be required to do so under the Exchange Act, the Issuers shall
timely file the reports required to be filed by them 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 Issuers shall deliver to such holder a written
statement as to whether they have complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require the Issuers to register any of their securities under the Exchange Act.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Issuers, jointly and severally, represent,
warrant, covenant and agree that they have 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 Exchange
and Registration Rights 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 Exchange and
Registration Rights Agreement in accordance with the terms and conditions of
this Exchange and Registration Rights 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 or
Capital, at 155 108th Avenue N.E., Bellevue, Washington 98004, Attention:
Secretary and if to a holder, to the address of such holder set forth in the
security register or
-17-
other records of the Company and/or Capital, 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 Exchange and
Registration Rights 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 Exchange and Registration Rights 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 Exchange and
Registration Rights Agreement. If the Issuers 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 Exchange and Registration
Rights 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 EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and paragraphs
of this Exchange and Registration Rights Agreement are inserted for convenience
only, do not constitute a part of this Exchange and Registration Rights
Agreement and shall not affect in any way the meaning or interpretation of this
Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration Rights
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 Exchange and Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights 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
Capital and the holders of at least 66-2/3 percent in aggregate principal amount
of the 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
-18-
indicating such amendment or waiver appears on such Registrable Securities or is
delivered to such holder.
(i) Inspection. For so long as this Exchange and Registration Rights Agreement
shall be in effect, this Exchange and Registration Rights 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 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.
-19-
Agreed to and accepted as of the date referred to above.
NEXTLINK COMMUNICATIONS, L.L.C.
By: NEXTLINK, INC.
By: /s/ R. Bruce Easter, Jr.
-------------------------
Name: R. Bruce Easter, Jr.
Title: Vice President
NEXTLINK CAPITAL, INC.
By: /s/ R. Bruce Easter, Jr.
-------------------------
Name: R. Bruce Easter, Jr.
Title: Vice President
GOLDMAN, SACHS & CO.
By: /s/ David Y. Adler
-------------------
Name: David Y. Adler
Title: Vice President
BEAR, STEARNS & CO. INC.
By: /s/ J. Andrew Bugas
--------------------
Name: J. Andrew Bugas
Title: Senior Managing Director
SALOMON BROTHERS INC
By:/s/ Peter Westley
-----------------
Name: Peter Westley
Title: Vice President
TORONTO DOMINION SECURITIES (USA) INC.
By:/s/ David S. McCann
-------------------
Name: David S. McCann
Title: President