exv10w6



 



Exhibit 10.6


ASSIGNMENT AND ASSUMPTION OF OPTION AGREEMENT



     THIS ASSIGNMENT AND ASSUMPTION OF OPTION AGREEMENT (“Agreement”) made this
15th day of January, 2003, by and between XO COMMUNICATIONS, INC., a Delaware
corporation (“Assignor”) and DIXON PROPERTIES LLC, a Delaware limited liability
company (“Assignee”) and shall be effective on January 16, 2003 (“Effective
Date”);


WITNESSETH:


     WHEREAS, on June 17, 2002, XO filed a voluntary petition for relief under
chapter 11 of title 11 of the United States Code, in the United States
Bankruptcy Court for the Southern District of New York (the “Bankruptcy
Court”).


     WHEREAS, by that certain Option Agreement (“Option”) dated as of October
31, 2002, as amended on December 13, 2002, by and between The Lincoln National
Life Insurance Company (“Optionor”) and XO Communications, Inc. (“Optionee”),
Optionor did grant an option for Optionee to purchase that certain building and
real property located at 11111 Sunset Hills Road, Reston, Virginia
(“Building”);


     WHEREAS, by order dated November 15, 2002, the Bankruptcy Court approved
the Option;


     WHEREAS, Assignor has leased a substantial portion of the Building
pursuant to that certain Amended and Restated Deed of Lease (“Deed of Lease”)
dated as of October 30, 2002, between the Optionor and the Optionee;


     WHEREAS, on December 23, 2002, Assignor exercised the Option in accordance
with its terms;


     WHEREAS, Assignee is and shall be deemed to be an “Affiliate” of Assignor
to which the Assignor may assign its rights under the Option pursuant to
Section 7.9 of the Option;


     WHEREAS, Assignor desires to assign to Assignee all of Assignor’s rights
and interests as Optionee under the Option, and Assignee desires to assume all
of Assignor’s obligations as Optionee under the Option upon and subject to the
terms and conditions set forth herein;


     NOW THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:


 






 


     1.     Assignment and Assumption.


             (a)    Assignor hereby assigns to Assignee all of Assignor’s rights and
interest in and to the Option, a true and complete copy of which is attached
hereto as Exhibit A and incorporated herein by reference, subject, however, to
the terms hereof.


             (b)    On and after the Effective Date, Assignee shall assume and hereby
agrees promptly and faithfully to keep, fulfill, observe, perform and discharge
each and every covenant, duty, debt and obligation on Assignor’s part to be
performed that may accrue and become performable, due or owing from and after
the Effective Date under the terms of the Option.


     2.     Restated Lease. As a material inducement to Assignor entering into
this Agreement, Assignor and Assignee shall enter into a lease amendment
relating to the Deed of Lease in accordance with the terms and conditions set
forth on Exhibit B which is attached hereto and made a part hereof.


     3.     Indemnity.


     Assignor represents that to the best of its knowledge the Option is in
full force and effect, and that it is not in breach of the Option. Assignor
further represents that (i) Assignor has validly exercised the Option and that
same is binding upon and enforceable against Optionor and (ii) the Bankruptcy
Approval Conditions (as defined in Section 1.3 of the Option), have been
satisfied and the Purchase Price (as defined in the Option) will be
$31,400,000.


             (a)    Assignor will indemnify and hold Assignee harmless from and defend
Assignee against any and all claims, demands, causes of action, losses, costs
(including, without limitation, court costs and reasonable attorneys’ fees),
liabilities and damages of any kind or nature whatsoever that Assignee may
sustain by reason of Assignor’s breach or nonfulfillment prior to the Effective
Date, of any covenant or obligation under the Option or this Agreement on its
part to be performed.


             (b)    Assignee will indemnify and hold Assignor harmless from and defend
Assignor against any and all claims, demands, causes of action, losses, costs
(including, without limitation, court costs and reasonable attorneys’ fees),
liabilities and damages of any kind or nature whatsoever that Assignor may
sustain by reason of Assignee’s breach or nonfulfillment on and after the
Effective Date, of any covenant or obligation under the Option or this
Agreement on its part to be performed.


     4.     Building Matters. Assignor and Assignee hereby recognize and agree
that Assignee shall be specifically and independently responsible for matters
of due diligence regarding its proposed acquisition of the Building pursuant to
the Option. To the extent Assignor provides or has provided Assignee with due
diligence materials, reports, tests or studies relating to the Building or the
structure, function or status thereof (including, without limitation, any such
materials, reports, tests or studies provided to Assignor by the Optionor),
Assignee hereby


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 releases and holds Assignor harmless from any findings, conclusions,
inaccuracies or contents relating to such due diligence materials, or the like.
Assignee expects to seek reliance letters from persons that provided due
diligence materials, reports, tests or studies relating to the Building or the
structure, function or status thereof and Assignor agrees to use commercially
reasonable efforts to cooperate with Assignee in connection therewith.


     5.     Notices. Any notice to be given pursuant to this Agreement shall be in
writing and shall be served by hand or private express mail carrier, or by
United States certified or registered mail.


             (a)    Notices to Assignee shall be mailed or delivered to Assignee c/o Icahn
Associates Corp., 767 Fifth Avenue, 47th Floor, NY, NY 10153, Attention: Marc
Weitzen, unless otherwise directed in writing by Assignee.


             (b)    Notices to Assignor shall be mailed or delivered to Assignor at XO
Communications, Inc., 11111 Sunset Hills Road, Reston, Virginia 20190,
Attention: Legal Department, with a copy to XO Communications, 1633 Westlake
Avenue North, Suite 200, Seattle, Washington 98109, Attention: Michael
Targett, Esq., unless otherwise directed in writing by Assignor.


             (c)    Any reference to “days” herein refers to calendar days.


     6.     Brokers. Assignee warrants and represents to Assignor that no real
estate agent, broker, finder or other such persons or firms have negotiated or
brought about this transaction.


     7.     Successors and Assigns. This Agreement shall bind and benefit the
parties and their respective successors and permitted assigns. Neither this
Agreement nor the rights or privileges hereunder shall be further assigned by
either party without the express written consent of both parties to this
Agreement. Any consent pursuant to this section may be withheld in the sole
but reasonable discretion of each party.


     8.     Amendments. This Agreement shall not be changed except by written
instrument signed by Assignor and Assignee.


     9.     Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together should constitute one and the same instrument.


     10.     Recitals. The Recitals set forth on the first page of this Agreement
are hereby incorporated herein by reference as if fully set forth at this point
in the text of this Agreement.


     11.    Prevailing Party Legal Fees. In the event any legal proceeding is
commenced related to this Agreement, the prevailing party in such proceeding
shall be entitled to recover its reasonable attorneys’ fees, costs and expenses
of litigation from the non-prevailing party.


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     12.     Time is of the Essence. For purposes of this Agreement, time shall be
considered of the essence.


     13.     Bankruptcy Court Approval. The assignment of the rights and
obligations of the Assignor to Assignee and the effectiveness of this Agreement
are subject to, and conditioned upon, the approval by the Bankruptcy Court of
the parties entering into and performing this Agreement by an order that
becomes final and not subject to appeal.


     14.     Governing Law. This Agreement shall be governed by and construed
under the laws of the Commonwealth of Virginia (excluding any conflict of law
rules which may direct interpretation to the laws of any other state).


     15.     Survival. All of the representations, warranties, covenants,
indemnities and other provisions of this Agreement shall survive the settlement
or closing on the Building and/or subject Property.


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     IN WITNESS WHEREOF, this Agreement has been executed by the duly
authorized representatives of Assignor and Assignee as of the date first above
written.



	 	 	 	 	 
	WITNESS:	 	
ASSIGNOR:	 	 
	 
	 	 	
XO COMMUNICATIONS, INC.,

a Delaware corporation	 	 
	 
	   /s/ Francis J. Kelleher

	 	
By:    /s/ Gary D. Begeman



	 	(SEAL)
	 
	 	 	
Name:       Gary D. Begeman


	 	 
	 
	 	 	
Title:     Senior Vice President


	 	 




	 	 	 	 	 
	WITNESS:	 	
ASSIGNEE:	 	 
	 
	 	 	
DIXON PROPERTIES LLC,

a Delaware limited liability company	 	 
	 
	   /s/ Matt Goldfarb


	 	
By:    /s/ Robert Mitchell



	 	(SEAL)
	 
	 	 	
Name:       Robert Mitchell


	 	 
	 
	 	 	
Title:    Authorized  Signatory


	 	 



List of Exhibits:


Exhibit A — Option Agreement

Exhibit B – Terms of Amendment to Restated Lease


#193636


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EXHIBIT A

OPTION AGREEMENT


(intentionally omitted)



 


 


 


 


 


 


 






 



EXHIBIT B

TERMS OF AMENDMENT TO DEED OF LEASE




	•	 	The Deed of Lease shall be amended or restated to delete any
requirement of a security deposit, and the security deposit held by the
current Landlord shall be returned to Assignor within two (2) days of
Assignee’s receipt of the security deposit from the current Landlord.
	 
	•	 	Notwithstanding anything set forth in the Deed of Lease, Assignee
and Assignor agree that there will not be a remeasuring of the Building
or the Leased Premises (as defined in the Deed of Lease) except as
agreed to by Assignee and Assignor in writing.



[CONTINUED ON NEXT PAGE]



 


 


 


 


 


 


 






 


EXHIBIT B

TERMS OF AMENDMENT TO DEED OF LEASE

(CONTINUED)



The rent schedules set forth in the Deed of Lease Section 3.1(a) and (b), will be modified as follows:


3.1 Base Rent

(a)



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Base Rent Schedule
	
	 	 	 	 	 	 	 	 	 	 	 	 
	Months	 	Per RSF	 	 	Annually	 	 	Monthly
	
	 	 	 	 	 	 	 	 	 	 	 	 
	Building Purchase Date by Assignee through 11/14/03
	 	$	22.50	 	 	$	3,768,637.50	*	 	$	314,053.13	*
	following 12 mos.
	 	$	23.27	 	 	$	3,897,608.60	*	 	$	324,800.72	*
	following 12 mos.
	 	$	24.05	 	 	$	4,028,254.75	 	 	$	335,687.90	 
	following 12 mos.
	 	$	24.86	 	 	$	4,163,925.70	 	 	$	346,993.81	 
	following 12 mos.
	 	$	25.70	 	 	$	4,304,621.50	 	 	$	358,718.46	 



*Subject to subsection (b), below.


(b)



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Building Purchase Date by Assignee through 11/14/03
	 	$	22.50	 	 	$	3,251,902.50	 	 	$	270,991.88	 
	following 12 mos
	 	$	23.27	 	 	$	3,363,189.83	 	 	$	280,265.82	 




 

 


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