exv10w4



 



Exhibit 10.4


XO COMMUNICATIONS, INC.



REGISTRATION RIGHTS AGREEMENT



     REGISTRATION RIGHTS AGREEMENT, dated as of January 16, 2003, among the
parties listed on Schedule I hereto (the “Holders”) and XO Communications, a
Delaware corporation (the “Company”).


R E C I T A L S


     WHEREAS, on June 17, 2002, the Company commenced it case (the “Bankruptcy
Case”) under Chapter 11 of the United Stated Code (the “Bankruptcy Code”) in
the United States Bankruptcy Court for the Southern District of New York (the
“Bankruptcy Court”);


     WHEREAS, the Holders were holders of claims against the Company in the
Bankruptcy Case;


     WHEREAS, on November 15, 2002, the Bankruptcy Court confirmed the Third
Amended Plan of Reorganization of the Company (the “Plan”);


     WHEREAS, on January 16, 2003 (the “Effective Date”), the Plan and the
related transactions contemplated thereby were consummated, at which time the
Holders claims were cancelled and they received New Reorganization Common Stock
(as defined below) and New Warrants (as defined in below);


     WHEREAS, the Company has agreed to grant the Holders certain registration
rights;


     WHEREAS, the Company and the Holders desire to define the registration
rights of the Holders on the terms and subject to the conditions herein set
forth.


     NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the parties hereby agree as follows:


SECTION 1. DEFINITIONS



     As used in this Agreement, the following terms have the respective meaning
set forth below:


     Commission: shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act;


     Effective Date: shall have the meaning set forth in the Recitals
above;

 






 




     Exchange Act: shall mean the Securities Exchange Act of 1934, as
amended and the rules and regulations promulgated thereunder;


     Holder: shall mean any holder of Registrable Securities;


     Initiating Holder: shall mean any Holder or Holders who in the
aggregate are Holders of more than 50% of the then outstanding Registrable
Securities;


     New Reorganization Common Stock: shall mean any common stock of
the Company, par value $0.01 per share, issued on or after the Effective Date.


     New Warrants: shall mean any warrants to purchase New
Reorganization Common Stock issued pursuant to the Plan.


     Person: shall mean an individual, partnership, joint-stock
company, corporation, trust or unincorporated organization, and a government or
agency or political subdivision thereof;


     Plan: shall have the meaning as set forth in the recitals.


     Register, Registered and Registration: shall mean to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and any post-effective amendments filed or
required to be filed) and the declaration or ordering of effectiveness of such
registration statement;


     Registrable Securities: shall mean the Warrants and the shares of
New Reorganization Common Stock (together with any securities issued or
issuable in respect thereof by way of a dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise) issued or issuable to the
Holders pursuant to the Plan or pursuant to the exercise of the Rights and the
Warrants; provided, however, that any shares of New
Reorganization Common Stock that cease to be owned by Holder or any of its
Affiliates shall cease to be Registrable Securities;


     Registration Expenses: shall mean all expenses incurred by the
Company in compliance with Section 2(a), (b) and (c) hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, fees and expenses of one counsel for
all the Holders in an amount not to exceed $15,000, blue sky fees and expenses
and the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of the
Company, which shall be paid in any event by the Company); provided, however,
that Registration Expenses shall exclude Selling Expenses;


     Rights: shall mean any rights to purchase New Reorganization Common
Stock issued in the rights offering established pursuant to the Plan;

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     Security, Securities: shall have the meaning set forth in Section
2(1) of the Securities Act;


     Securities Act: shall mean the Securities Act of 1933, as amended
and the rules and regulations promulgated thereunder; and


     Selling Expenses: shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities and all
fees and disbursements of counsel for each of the Holders other than the fees
and expenses of one counsel for all the Holders referenced in the definition of
Registration Expenses above.


SECTION 2. REGISTRATION RIGHTS



     (a)       Requested Registration.



		
	 	        (i)     Request for Registration. If the Company shall receive
from an Initiating Holder, at any time after the Effective Date, subject
to Section (2)(i), if applicable, a written request that the Company
effect any registration with respect to more than 30% of the Registrable
Securities, the Company will:




		
	 	        (1)     promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
	 
	 	        (2)     as soon as practicable, use its diligent best efforts to
effect such registration (including, without limitation, the
execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable
regulations issued under the Securities Act) as may be so requested
and as would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are specified in
such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are
specified in a written request received by the Company within 10
business days after written notice from the Company is given under
Section 2(a)(i)(1) above; provided that the Company shall
not be obligated to effect, or take any action to effect, any such
registration pursuant to this Section 2(a):




	 	(A)	 	In any particular
jurisdiction in which the Company would be
required to execute a general consent to service
of process in effecting such registration,
qualification or compliance, unless the Company is
already subject to service in such jurisdiction
and except as may be required by the Securities
Act or applicable rules or regulations thereunder;
	 
	 	(B)	 	After the Company has
effected two (2) such registrations pursuant to
this Section 2(a) and such registrations have



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	 	 	 	been declared or ordered effective and the sales
of such Registrable Securities shall have closed;
	 
	 	(C)	 	If the Registrable
Securities requested by all Holders to be
registered pursuant to such request do not have an
anticipated aggregate public offering price
(before any underwriting discounts and
commissions) of not less than $5,000,000;
	 
	 	(D)	 	During the period
starting with the date sixty (60) days prior to
the Company’s good faith estimate of the date of
filing of, and ending on the date six (6) months
immediately following the effective date of, any
registration statement pertaining to securities of
the Company (other than a registration of
securities in a Rule 145 transaction, with respect
to an employee benefit plan or with respect to the
Company’s first registered public offering of its
stock), provided that the Company is actively
employing in good faith all reasonable efforts to
cause such registration statement to become
effective; or
	 
	 	(E)	 	If the Company shall
furnish to the Initiating Holders a certificate
signed by an officer of the Company stating that
in the good faith judgment of the Board of
Directors it would be significantly detrimental to
the Company or its stockholders for a registration
statement to be filed or securities to be offered,
in which case the Company’s obligation to use its
best efforts to comply with this Section 2 shall
be deferred for a period not to exceed ninety (90)
days from the date of receipt of written request
from the Initiating Holders; provided,
however, that the Company shall not
exercise such right more than once in any
six-month period.



     The registration statement filed pursuant to the request of the Initiating
Holders may, subject to the provisions of Section 2(a)(ii) below, include other
securities of the Company which are held by Persons who, by virtue of
agreements with the Company, are entitled to include their securities in any
such registration (“Other Stockholders”). In the event any Holder requests a
registration pursuant to this Section 2(a) in connection with a distribution of
Registrable Securities to its partners, the registration shall provide for the
resale by such partners, if requested by such Holder.


     The registration rights set forth in this Section 2 may be assigned, in
whole or in part, to any transferee of Registrable Securities (who shall be
bound by all obligations of this Agreement).


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	 	        (ii)     Underwriting. If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means
of an underwriting, they shall so advise the Company as a part of their
request made pursuant to Section 2(a).



     If Other Stockholders request such inclusion, the Holders shall offer to
include the securities of such Other Stockholders in the underwriting and may
condition such offer on their acceptance of the further applicable provisions
of this Section 2. The Holders whose shares are to be included in such
registration and the Company shall (together with all Other Stockholders
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by the Initiating
Holders and reasonably acceptable to the Company. Notwithstanding any other
provision of this Section 2(a), if the representative advises the Holders in
writing that marketing factors require a limitation on the number of shares to
be underwritten, the securities of the Company held by Other Stockholders shall
be excluded from such registration to the extent so required by such
limitation. If, after the exclusion of such shares, further reductions are
still required, the number of shares included in the registration by each
Holder shall be reduced on a pro rata basis (based on the number of shares held
by such Holder), by such minimum number of shares as is necessary to comply
with such request. No Registrable Securities or any other securities excluded
from the underwriting by reason of the underwriter’s marketing limitation shall
be included in such registration. If any Other Stockholder who has requested
inclusion in such registration as provided above disapproves of the terms of
the underwriting, such Person may elect to withdraw therefrom by written notice
to the Company, the underwriter and the Initiating Holders. The securities so
withdrawn shall also be withdrawn from registration. If the underwriter has
not limited the number of Registrable Securities or other securities to be
underwritten, the Company and officers and directors of the Company may include
its or their securities for its or their own account in such registration if
the representative so agrees and if the number of Registrable Securities and
other securities which would otherwise have been included in such registration
and underwriting will not thereby be limited.


     (b)       Company Registration.



		
	 	        (i)     If the Company shall determine to register any of its equity
securities either for its own account or for the account of Other
Stockholders, other than a registration relating solely to employee
benefit plans, or a registration relating solely to a Commission Rule 145
transaction, or a registration on any registration form (including Form
S-4) which does not permit secondary sales or does not include
substantially the same information as would be required to be included in
a registration statement covering the sale of Registrable Securities, the
Company will:




		
	 	        (1)     promptly give to each of the Holders a written notice
thereof (which shall include a list of the jurisdictions in which
the Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws); and
	 
	 	        (2)     include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved



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	 	therein, all the Registrable Securities specified in a written
request or requests, made by the Holders within fifteen (15) days
after receipt of the written notice from the Company described in
clause (i) above, except as set forth in Section 2(b)(ii) below.
Such written request may specify all or a part of the Holders’
Registrable Securities. In the event any Holder requests inclusion
in a registration pursuant to this Section 2(b) in connection with
a distribution of Registrable Securities to its partners, the
registration shall provide for the resale by such partners, if
requested by such Holder.




		
	 	        (ii)     Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an
underwriting, the Company shall so advise each of the Holders as a part
of the written notice given pursuant to Section 2(b)(i)(1). In such
event, the right of each of the Holders to registration pursuant to this
Section 2(b) shall be conditioned upon such Holders’ participation in
such underwriting and the inclusion of such Holders’ Registrable
Securities in the underwriting to the extent provided herein. The
Holders whose shares are to be included in such registration shall
(together with the Company and the Other Stockholders distributing their
securities through such underwriting) enter into an underwriting
agreement in customary form with the representative of the underwriter or
underwriters selected for underwriting by the Company. Notwithstanding
any other provision of this Section 2(b), if the representative
determines that marketing factors require a limitation on the number of
shares to be underwritten, and the representative may (subject to the
allocation priority set forth below) limit the number of Registrable
Securities to be included in the registration and underwriting to not
less than twenty five percent (25%) of the shares included therein (based
on the number of shares). The Company shall so advise all holders of
securities requesting registration, and the number of shares of
securities that are entitled to be included in the registration and
underwriting shall be allocated in the following manner: The securities
of the Company held by officers, directors and Other Stockholders of the
Company (other than Registrable Securities and other than securities held
by holders who by contractual right demanded such registration
(“Demanding Holders”)) shall be excluded from such registration and
underwriting to the extent required by such limitation, and, if a
limitation on the number of shares is still required, the number of
shares that may be included in the registration and underwriting by each
of the Holders and Demanding Holders shall be reduced, on a pro rata
basis (based on the number of shares held by such Holder), by such
minimum number of shares as is necessary to comply with such limitation.
If any of the Holders or any officer, director or Other Stockholder
disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the underwriter.
Any Registrable Securities or other securities excluded or withdrawn from
such underwriting shall be withdrawn from such registration.



     (c)       Form S-3. The Company shall use its best efforts to qualify
for registration on Form S-3 for secondary sales. After the Company has
qualified for the use of Form S-3, the Holders shall have the right to request
three (3) registrations on Form S-3 (such requests shall be in writing and
shall state the number of shares of Registrable Securities to be disposed of
and the intended method of disposition of shares by such holders),
provided that the


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Company shall not be obligated to effect, or take any action to effect,
any such registration pursuant to this Section 2(c):



		
	 	        (i)     Unless the Holder or Holders requesting registration propose to
dispose of shares of Registrable Securities having an aggregate price to
the public (before deduction of Selling Expenses) of more than
$5,000,000;
	 
	 	        (ii)     Within 180 days of the effective date of the most recent
registration pursuant to this Section 2(c) in which securities held by
the requesting Holder could have been included for sale or distribution;
	 
	 	        (iii)     In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting
such registration, qualification or compliance, unless the Company is
already subject to service in such jurisdiction and except as may be
required by the Securities Act or applicable rules or regulations
thereunder;
	 
	 	        (iv)     During the period starting with the date sixty (60) days prior
to the Company’s good faith estimate of the date of filing of, and ending
on the date six (6) months immediately following the effective date of,
any registration statement pertaining to securities of the Company (other
than a registration of securities in a Rule 145 transaction or with
respect to an employee benefit plan), provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; provided,
however, that the Company may only delay an offering pursuant to
this Section 2(c)(iv) for a period of not more than sixty (60) days, if a
filing of any other registration statement is not made within that period
and the Company may only exercise this right once in any twelve (12)
month period; or
	 
	 	        (v)     If the Company shall furnish to the Holders a certificate signed
by an officer of the Company stating that in the good faith judgment of
the Board of Directors it would be significantly detrimental to the
Company or its stockholders for a registration statement to be filed in
the near future, in which case the Company’s obligation to use its best
efforts to comply with this Section 2(c) shall be deferred for a period
not to exceed ninety (90) days from the date of receipt of written
request from the Holders; provided, however, that the
Company shall not exercise such right more than once in any six-month
period.



     The Company shall give written notice to all Holders of the receipt of a
request for registration pursuant to this Section 2(c) and shall provide a
reasonable opportunity for other Holders to participate in the registration,
provided that if the registration is for an underwritten offering, the terms of
Section 2(a)(ii) shall apply to all participants in such offering. Subject to
the foregoing, the Company will use its best efforts to effect promptly the
registration of all shares of Registrable Securities on Form S-3 to the extent
requested by the Holder or Holders thereof for purposes of disposition. In the
event any Holder requests a registration pursuant to this Section 2(c) in
connection with a distribution of Registrable Securities to its partners, the
registration shall provide for the resale by such partners, if requested by
such Holder.


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     (d)       Expenses of Registration. All Registration Expenses incurred
in connection with any registration, qualification or compliance pursuant to
this Section 2 shall be borne by the Company, and all Selling Expenses shall be
borne by the Holders of the securities so registered pro rata on the basis of
the number of their shares so registered.


     (e)       Registration Procedures. In the case of each registration
effected by the Company pursuant to this Section 2, the Company will keep the
Holders, as applicable, advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense, the Company
will:



		
	 	        (i)     keep such registration effective for a period of one hundred
twenty (120) days or until the Holders (or in the case of a distribution
to the partners of such Holder, such partners), as applicable, have
completed the distribution described in the registration statement
relating thereto, whichever first occurs; provided,
however, that (A) such 120-day period shall be extended for a
period of time equal to the period during which the Holders or partners,
as applicable, refrain from selling any securities included in such
registration in accordance with provisions in Section 2(i) hereof; and
(B) in the case of any registration of Registrable Securities on Form S-3
which are intended to be offered on a continuous or delayed basis, such
120-day period shall be extended until all such Registrable Securities
are sold, provided that Rule 415, or any successor rule under the
Securities Act, permits an offering on a continuous or delayed basis, and
provided further that applicable rules under the Securities Act governing
the obligation to file a post-effective amendment permit, in lieu of
filing a post-effective amendment which (y) includes any prospectus
required by Section 10(a) of the Securities Act or (z) reflects facts or
events representing a material or fundamental change in the information
set forth in the registration statement, the incorporation by reference
of information required to be included in (y) and (z) above to be
contained in periodic reports filed pursuant to Section 12 or 15(d) of
the Exchange Act in the registration statement;
	 
	 	        (ii)     furnish such number of prospectuses and other documents
incident thereto as each of the Holders, as applicable, from time to time
may reasonably request;
	 
	 	        (iii)     notify each Holder of Registrable Securities covered by such
registration at any time when a prospectus relating thereto is required
to be delivered under the Securities Act of the happening of any event as
a result of which the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or
omits 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; and
	 
	 	        (iv)     furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold
through underwriters or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to
such securities becomes effective, (1) an opinion, dated as of such date,
of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to
underwriters in an underwritten public offering and reasonably
satisfactory to a majority in interest of the Holders participating



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	 	in such registration, addressed to the underwriters, if any, and to
the Holders participating in such registration and (2) a letter, dated as
of such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in interest of the
Holders participating in such registration, addressed to the
underwriters, if any, and if permitted by applicable accounting
standards, to the Holders participating in such registration.



     (f)       Indemnification.



		
	 	        (i)     The Company will indemnify each of the Holders, as applicable,
each of its officers, directors and partners, and each Person controlling
each of the Holders, with respect to each registration which has been
effected pursuant to this Section 2, and each underwriter, if any, and
each person who controls any underwriter, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material
fact contained in any prospectus, offering circular or other document
(including any related registration statement, notification or the like)
incident to any such registration, qualification or compliance, or based
on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or any violation by the Company of the Securities Act or
the Exchange Act or any rule or regulation thereunder applicable to the
Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance, and
will reimburse each of the Holders, each of its officers, directors and
partners, and each Person controlling each of the Holders, each such
underwriter and each Person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to
the extent that any such claim, loss, damage, liability or expense arises
out of or is based on any untrue statement or omission based upon written
information furnished to the Company by the Holders or underwriter and
stated to be specifically for use therein.
	 
	 	        (ii)     Each of the Holders will, if Registrable Securities held by it
are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company,
each of its directors and officers and each underwriter, if any, of the
Company’s securities covered by such a registration statement, each
person who controls the Company or such underwriter, each Other
Stockholder and each of their officers, directors, and partners, and each
person controlling such Other Stockholder against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering
circular or other document made by such Holder, or any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements by such Holder therein not
misleading, and will reimburse the Company and such Other Stockholders,
directors, officers, partners, persons, underwriters or control persons
for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability
or action, in each case to the extent, but



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	 	only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance
upon and in conformity with written information furnished to the Company
by such Holder and stated to be specifically for use therein; provided,
however, that the obligations of each of the Holders hereunder shall be
limited to an amount equal to the net proceeds to such Holder of
securities sold as contemplated herein.
	 
	 	        (iii)     Each party entitled to indemnification under this Section 2(f)
(the “Indemnified Party”) shall give notice to the party required to
provide indemnification (the “Indemnifying Party”) promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom; provided
that counsel for the Indemnifying Party, who shall conduct the defense of
such claim or any litigation resulting therefrom, shall be approved by
the Indemnified Party (whose approval shall not unreasonably be withheld)
and the Indemnified Party may participate in such defense at such party’s
expense (unless the Indemnified Party shall have reasonably concluded
that there may be a conflict of interest between the Indemnifying Party
and the Indemnified Party in such action, in which case the fees and
expenses of counsel shall be at the expense of the Indemnifying Party),
and provided further that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 2 unless the Indemnifying Party is
materially prejudiced thereby. No Indemnifying Party shall be liable for
any settlement of any action or proceeding effected without its written
consent. No Indemnifying Party, in the defense of any such claim or
litigation shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant
or plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
	 
	 	        (iv)     If the indemnification provided for in this Section 2(f) is
held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such
loss, liability, claim, damage or expense in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on
the one hand and of the Indemnified Party on the other in connection with
the statements or omissions which resulted in such loss, liability,
claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other
things, whether the untrue (or alleged untrue) statement of a material
fact or the omission (or alleged omission) to state a material fact
relates to information supplied by the Indemnifying Party or by the
Indemnified Party and the



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	 	parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
	 
	 	        (v)     Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting
agreement entered into in connection with any underwritten public
offering contemplated by this Agreement are in conflict with the
foregoing provisions, the provisions in such underwriting agreement shall
be controlling.
	 
	 	        (vi)     The foregoing indemnity agreement of the Company and Holders is
subject to the condition that, insofar as they relate to any loss, claim,
liability or damage arising out of a statement made in or omitted from a
preliminary prospectus but eliminated or remedied in the amended
prospectus on file with the Commission at the time the registration
statement in question becomes effective or the amended prospectus filed
with the Commission pursuant to Commission Rule 424(b) (the “Final
Prospectus”), such indemnity or contribution agreement shall not inure to
the benefit of any underwriter or Holder if a copy of the Final
Prospectus was furnished to such underwriter or Holder and was not
furnished to the Person asserting the loss, liability, claim or damage at
or prior to the time such action is required by the Securities Act.



     (g)       Information by the Holders.



		
	 	        (i)     Each of the Holders holding securities included in any
registration shall furnish to the Company such information regarding such
Holder and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to
in this Section 2.
	 
	 	        (ii)     In the event that, either immediately prior to or subsequent to
the effectiveness of any registration statement, any Holder shall
distribute Registrable Securities to its partners, such Holder shall so
advise the Company and provide such information as shall be necessary to
permit an amendment to such registration statement to provide information
with respect to such partners, as selling securityholders. Promptly
following receipt of such information, the Company shall file an
appropriate amendment to such registration statement reflecting the
information so provided. Any incremental expense to the Company
resulting from such amendment shall be borne by such Holder.



     (h)       Rule 144 Reporting.


     With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted
securities to the public without registration, the Company agrees to:



		
	 	        (i)     make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act (“Rule 144”),
at all times from and after ninety (90) days following the effective date
of the first registration under



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	 	the Securities Act filed by the Company for an offering of its
securities to the general public;
	 
	 	        (ii)     use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become
subject to such reporting requirements; and
	 
	 	        (iii)     so long as the Holder owns any Registrable Securities, furnish
to the Holder upon request, a written statement by the Company as to its
compliance with the reporting requirements of Rule 144, and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so
filed as the Holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing the Holder to sell any such
securities without registration.



     (i)       “Market Stand-off” Agreement. Each of the Holders agrees, if
requested by the Company or an underwriter of equity securities of the Company,
not to sell or otherwise transfer or dispose of any Registrable Securities held
by such Holder during the 180-day period following the effective date of a
registration statement of the Company filed under the Securities Act, provided
that all officers and directors of the Company enter into similar agreements.


     If requested by the underwriters, the Holders shall execute a separate
agreement to the foregoing effect. The Company may impose stop-transfer
instructions with respect to the shares (or securities) subject to the
foregoing restriction until the end of said 180-day period. The provisions of
this Section 2(i) shall be binding upon any transferee who acquires Registrable
Securities.


SECTION 3. MISCELLANEOUS



     (a)       Directly or Indirectly. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.


     (b)       Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within such State.


     (c)       Section Headings. The headings of the sections and subsections
of this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.


     (d)       Notices.



		
	 	        (i)     All communications under this Agreement shall be in writing and
shall be delivered by hand or facsimile or mailed by overnight courier or
by registered or certified mail, postage prepaid:



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	 	        (1)     if to the Company, to XO Communications, Inc., 11111
Sunset Hills Road, Reston, VA 20190, Attention: General Counsel
(facsimile: (703) 547-2025, or at such other address as it may have
furnished in writing to the Holders.
	 
	 	        (2)     if to the Holders, at the address or facsimile number
listed on Schedule I hereto, or at such other address or facsimile
number as may have been furnished the Company in writing.




		
	 	        (ii)     Any notice so addressed shall be deemed to be given: if
delivered by hand or facsimile, on the date of such delivery; if mailed
by overnight courier, on the first business day following the date of
such mailing; and if mailed by registered or certified mail, on the third
business day after the date of such mailing.



     (e)       Reproduction of Documents. This Agreement and all documents
relating thereto, including, without limitation, any consents, waivers and
modifications which may hereafter be executed may be reproduced by the Holders
by any photographic, photostatic, microfilm, microcard, miniature photographic
or other similar process and the Holders may destroy any original document so
reproduced. The parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by the Holders in the regular course
of business) and that any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence.


     (f)       Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.


     (g)       Entire Agreement; Amendment and Waiver. This Agreement
constitutes the entire understanding of the parties hereto and supersedes all
prior understanding among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with)
the written consent of the Company and the Holders holding a majority of the
then outstanding Registrable Securities.


     (h)       Severability. In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not affect the
remaining provisions of this Agreement which shall remain in full force and
effect.


     (i)       No Third Party Beneficiaries. The parties hereto acknowledge
and agree that there are no intended third party beneficiaries to this
Agreement and no third parties have any rights under or relating to this
Agreement


     (j)     Counterparts. This Agreement may be executed in two or more
counterparts (including by facsimile), each of which shall be deemed an
original and all of which together shall be considered one and the same
agreement.


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     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first set forth above.



	 
	XO COMMUNICATIONS, INC.

	 
	 
	By: /s/ Gary D. Begeman                         
	    Name:   Gary D. Begeman
	    Title:     Senior Vice President, General Counsel




 






 



HIGH RIVER LIMITED PARTNERSHIP
 



By:      /s/ Edward E. Mattner               

       Name:   Edward E. Mattner

       Title:     Authorized Signatory
 


MEADOW WALK LIMITED PARTNERSHIP
 



By:      /s/ Edward E. Mattner               

       Name:   Edward E. Mattner

       Title:     Authorized Signatory


 






 


Schedule I


Holders


Investor Name and Address


High River Limited Partnership

c/o Icahn Associates Corp.

767 Fifth Avenue

Suite 4700

New York, NY 10153


Meadow Walk Limited Partnership

c/o Icahn Associates Corp.

767 Fifth Avenue

Suite 4700

New York, NY 10153