exv10w1



 






Exhibit 10.1




ASSIGNMENT AND ASSUMPTION AGREEMENT




          ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of February 28, 2006 (this “Agreement”), by and
among XO Communications, Inc., a Delaware corporation (“Assignor”), and XO Holdings, Inc., a
Delaware corporation and a wholly-owned subsidiary of Assignor (“Assignee”).




W I T N E S S E T H:




          WHEREAS, Assignee, Assignor and Elk Associates, LLC, a Delaware limited liability company
(“Buyer”), are parties to that certain Equity Purchase Agreement, dated as of November 4, 2005 (as
amended from time to time, the “Purchase Agreement”), providing for the sale by Assignee to Buyer,
and the purchase by Buyer from Assignee, of all of the issued and outstanding membership interests
(the “Equity Interests”) of XO Communications, LLC, a Delaware limited liability company and
wholly-owned subsidiary of Assignee (“XO LLC”);




          WHEREAS, pursuant to the Purchase Agreement, to facilitate the purchase and sale of the Equity
Interests as contemplated thereby, Assignor, Assignee and XO LLC entered into that certain
Agreement and Plan of Merger, dated as of February 28, 2006 (as amended from time to time, the
“Merger Agreement”), pursuant to which Assignor will merge (the “Merger”) with and into XO LLC,
with XO LLC as the entity surviving such Merger; and




          WHEREAS, pursuant to the Merger Agreement, and as a condition to the consummation of the
Merger, Assignor and Assignee have agreed to enter into this Agreement, which provides for the
assignment and transfer to Assignor, and the assumption and acceptance by Assignee, of the Assumed
Liabilities and the Assumed Assets (as each such term is defined below) as provided herein;




          NOW, THEREFORE, in consideration of the foregoing premises and the covenants and agreements
contained in this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee, each intending to be legally
bound, hereby agree as follows:




     1. Certain Definitions. In addition to the terms defined elsewhere herein, as used in
this Agreement, the following terms shall have the respective meanings below:



          “Assumed Assets” shall mean any and all of Assignor’s right, title and interest in, to or
under the assets and properties set forth on Schedule I attached hereto.




          “Assumed Liabilities” shall mean any and all liabilities and obligations of Assignor arising
from and after the date hereof (i) pursuant to, in connection with, with respect to, under or as
provided in the contracts, agreements and instruments set forth on Schedule II attached
hereto and (ii) in connection with, relating to or with respect to the Assumed Assets.




          “Excluded Assets” shall mean any and all assets and properties of Assignor (other than the
Assumed Assets) and any and all of Assignor’s right, title and interest therein.




 









 








          “Excluded Liabilities” shall mean any and all liabilities and obligations of Assignor (other
than the Assumed Liabilities), which arose prior to or arise from and after the date hereof,
whether by or pursuant to contract, applicable law or otherwise, including, without limitation, any
such liabilities and obligations in connection with, with respect to, under or relating to any
Excluded Assets.




     2. Assignment and Assumption of Assumed Liabilities. Assignor hereby forever assigns,
conveys, transfers and sets over unto Assignee, its successors and assigns the Assumed Liabilities.
Assignee hereby accepts such assignment and assumes and agrees to pay, perform and discharge when
due, and to protect, indemnify, defend and hold Assignor harmless from and against, the Assumed
Liabilities.



     3. No Assignment of Excluded Liabilities. Assignor shall retain and continue to be
liable for, and shall protect, indemnify, defend and hold Assignee harmless from and against, any
and all Excluded Liabilities and, for the avoidance of doubt, Assignee shall not assume (or be
deemed to have assumed) or in any way be liable or responsible hereunder or otherwise for or with
respect to any Excluded Liabilities.



     4. Assignment of Assumed Assets. Assignor hereby forever assigns, conveys, transfers,
sets over and delivers unto Assignee, its successors and assigns the Assumed Assets. Assignee
hereby accepts such assignment.



     5. No Assignment of Excluded Assets. Assignor shall retain any and all of its right,
title and interest in, to and under any and all Excluded Assets and, for the avoidance of doubt,
Assignor shall not assign (or be deemed to have assigned) hereunder or otherwise any of its right,
title or interest in, to or under any Excluded Assets.



     6. Power of Attorney. Assignor hereby constitutes and appoints Assignee, its
successors and assigns, as Assignor’s true and lawful attorney and attorneys, with full power of
substitution, in Assignor’s name and stead, but on behalf and for the benefit of Assignee, its
successors and assigns, to demand and receive any and all of the Assumed Assets, and to give
receipts and releases for and in respect of the same, and any part thereof, and from time to time
to institute and prosecute in Assignor’s name, or otherwise, for the benefit of Assignee, its
successors and assigns, any and all proceedings at law, in equity or otherwise, which Assignee, its
successors and assigns, may deem proper for the collection or reduction to possession of any of the
Assumed Assets or for the collection and enforcement of any claim or right of any kind hereby sold,
conveyed, transferred and assigned, or intended so to be, and to do all acts and things in relation
to the Assumed Assets which Assignee, its successors and assigns shall deem desirable, and Assignor
hereby declares, acknowledges and agrees that the foregoing power of attorney is coupled with an
interest sufficient at law and in equity to support such power of attorney and is and shall be
irrevocable by Assignor, whether by its dissolution or otherwise, for any reason whatsoever.



     7. Further Assurances. From time to time after the date hereof, Assignor shall, at
Assignee’s request and without the payment of any additional consideration to Assignor, do,
execute, acknowledge and deliver, or shall cause to be done, executed, acknowledged and delivered,
any, all and every such further acts, deeds, conveyances, transfers, assignments,



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powers of attorney and assurances as reasonably may be required to more effectively assign,
convey, transfer, set over and deliver unto, and vest in, Assignee, and to put Assignee in
possession of, any of the Assumed Assets.




     8. Subject to Agreement. Except as otherwise provided herein, nothing contained in
this Agreement shall itself (i) change, amend, extend or alter (nor shall it be deemed or construed
as changing, amending, extending or altering) the terms or conditions of the Merger Agreement or
the Purchase Agreement in any manner whatsoever, or (ii) create or establish liabilities or
obligations not otherwise created or existing under or pursuant to the Merger Agreement and/or the
Purchase Agreement. In the event of any conflict or other difference between the Merger Agreement
or the Purchase Agreement, on the one hand, and this Agreement, on the other hand, the provisions
of the Merger Agreement or the Purchase Agreement (as applicable) shall govern and control.



     9. Governing Law. This Agreement shall be governed by and construed under the laws of
the State of New York, without regard to the principles of conflicts of laws thereof.



     10. Counterparts. This Agreement may be executed in one or more counterparts, each of
which when executed shall be deemed to be an original, but all of which together shall constitute
one and the same agreement.



     11. Entire Agreement; Amendment. This Agreement, including the Schedules attached
hereto, the Merger Agreement and the Purchase Agreement constitute the entire agreement, and
supersede all prior agreements and undertakings, both written and oral, among the parties hereto,
or any of them, with respect to the subject matter hereof. This Agreement may not be amended or
supplemented except by a written document executed by the parties to this Agreement.



     12. Severability. In the event any provision hereof is determined by a court or other
governmental authority of competent jurisdiction to be invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall remain in full force and effect to the fullest extent
permitted by applicable law.



     13. No Third Party Beneficiaries. Neither anything contained in this Assignment nor
the assumption by Assignee of the Assumed Liabilities is intended by the parties hereto to expand
the rights and remedies of any third party against Assignee as compared to the rights and remedies
which such third party would have had against Assignor had the parties hereto not consummated the
transactions contemplated hereby.



     14. Survival; Successors. This Agreement and the covenants and agreements herein
contained shall survive the consummation of the transactions contemplated by the Merger Agreement
and Purchase Agreement and shall inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns.



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     IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption Agreement to
be duly executed as of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	XO COMMUNICATIONS, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Carl J. Grivner	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Carl J. Grivner	 	 
	 

	 	 	 	Title:
	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	XO HOLDINGS, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ William Garrahan	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	William Garrahan	 	 
	 

	 	 	 	Title:
	 	Acting Chief Financial Officer and

Senior Vice President