exv10w2



 





Exhibit 10.2




      




XO Communications, LLC




$145,000,000 Senior Notes due April 15, 2009




 






Note Purchase Agreement




 






Dated as of March 13, 2008




      




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	SECTION 1. AUTHORIZATION OF NOTES
	 	 	1	 
	Section 1.1. Authorization of Notes
	 	 	1	 
	Section 1.2. Provisions Relating to the Notes
	 	 	1	 
	SECTION 2. SALE AND PURCHASE OF NOTES; GUARANTY AGREEMENT
	 	 	2	 
	Section 2.1. Sale and Purchase of Notes
	 	 	2	 
	Section 2.2. Guaranty Agreement
	 	 	2	 
	SECTION 3. CLOSING
	 	 	2	 
	SECTION 4. PURCHASER’S CONDITIONS TO CLOSING
	 	 	3	 
	Section 4.1. Representations and Warranties
	 	 	3	 
	Section 4.2. Performance; No Default
	 	 	3	 
	Section 4.3. Compliance Certificates
	 	 	3	 
	Section 4.4. Guaranty Agreement
	 	 	3	 
	Section 4.5. Opinions of Counsel
	 	 	3	 
	Section 4.6. Purchase Permitted by Applicable Law, Etc.
	 	 	4	 
	Section 4.7. Waiver
	 	 	4	 
	Section 4.8. Funding Instructions
	 	 	4	 
	Section 4.9. Proceedings and Documents
	 	 	4	 
	SECTION 5. COMPANY’S CONDITIONS TO CLOSING
	 	 	4	 
	Section 5.1. Related Transactions
	 	 	4	 
	Section 5.2. Fairness Opinion
	 	 	4	 
	SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
	 	 	4	 
	Section 6.1. Organization; Requisite Power and Authority; Qualification
	 	 	4	 
	Section 6.2. Capital Stock and Ownership
	 	 	5	 
	Section 6.3. Due Authorization
	 	 	5	 
	Section 6.4. No Conflict
	 	 	5	 
	Section 6.5. Governmental Consents
	 	 	5	 
	Section 6.6. Binding Obligation
	 	 	5	 
	Section 6.7. Financial Statements
	 	 	6	 
	Section 6.8. No Material Adverse Change
	 	 	6	 
	Section 6.9. Adverse Proceedings, etc.
	 	 	6	 
	Section 6.10. Payment of Taxes
	 	 	6	 






 









 






TABLE OF CONTENTS

(Continued)




	 	 	 	 	 
	 	 	Page
	Section 6.11. No Defaults
	 	 	6	 
	Section 6.12. Material Contracts
	 	 	6	 
	Section 6.13. Governmental Regulation
	 	 	7	 
	Section 6.14. Margin Stock
	 	 	7	 
	Section 6.15. Certain Fees
	 	 	7	 
	Section 6.16. Compliance with Statutes, etc.
	 	 	7	 
	Section 6.17. Fairness Opinion
	 	 	7	 
	SECTION 7. REPRESENTATIONS OF THE PURCHASERS
	 	 	7	 
	Section 7.1. Purchase for Investment
	 	 	7	 
	Section 7.2. No Registration under the Securities Act
	 	 	7	 
	Section 7.3. Accredited Investor
	 	 	8	 
	SECTION 8. PAYMENT OF THE NOTES
	 	 	8	 
	Section 8.1. Required Prepayments
	 	 	8	 
	Section 8.2. Optional Prepayments
	 	 	8	 
	Section 8.3. Allocation of Partial Prepayments
	 	 	8	 
	Section 8.4. Maturity; Surrender, Etc.
	 	 	8	 
	SECTION 9. AFFIRMATIVE COVENANTS
	 	 	8	 
	Section 9.1. Financial Statements and Other Reports
	 	 	8	 
	Section 9.2. Existence
	 	 	9	 
	Section 9.3. Payment of Taxes and Claims
	 	 	9	 
	Section 9.5. Insurance
	 	 	9	 
	Section 9.6. Compliance with Laws
	 	 	9	 
	Section 9.6. Subsequent Guarantors
	 	 	9	 
	SECTION 10. EVENTS OF DEFAULT
	 	 	9	 
	SECTION 11. REMEDIES ON DEFAULT, ETC
	 	 	11	 
	Section 11.1. Acceleration
	 	 	11	 
	Section 11.2. Other Remedies
	 	 	11	 
	Section 11.3. Rescission
	 	 	11	 
	Section 11.4. No Waivers or Election of Remedies, Expenses, Etc.
	 	 	12	 
	SECTION 12. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES
	 	 	12	 






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TABLE OF CONTENTS

(Continued)




	 	 	 	 	 
	 	 	Page
	Section 12.1. Registration of Notes
	 	 	12	 
	Section 12.2. Transfer and Exchange of Notes
	 	 	12	 
	Section 12.3. Replacement of Notes
	 	 	13	 
	SECTION 13.  PAYMENTS ON NOTES
	 	 	13	 
	Section 13.1. Home Office Payment
	 	 	13	 
	SECTION 14.  SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT
	 	 	13	 
	SECTION 15.  AMENDMENT AND WAIVER
	 	 	13	 
	Section 15.1. Requirements
	 	 	13	 
	Section 15.2. Solicitation of Holders of Notes
	 	 	14	 
	Section 15.3. Binding Effect, Etc.
	 	 	14	 
	SECTION 16.  NOTICES
	 	 	15	 
	SECTION 17.  REPRODUCTION OF DOCUMENTS
	 	 	15	 
	SECTION 18.  CONFIDENTIAL INFORMATION
	 	 	15	 
	SECTION 19.  SUBSTITUTION OF PURCHASER
	 	 	16	 
	SECTION 20.  SUBMISSION TO JURISDICTION
	 	 	17	 
	SECTION 21.  MISCELLANEOUS
	 	 	17	 
	Section 21.1.  Successors and Assigns
	 	 	17	 
	Section 21.2. Payments Due on Non-Business Days
	 	 	17	 
	Section 21.3. Severability
	 	 	17	 
	Section 21.4. Construction
	 	 	18	 
	Section 21.5. Counterparts
	 	 	18	 
	Section 21.6. Governing Law
	 	 	18	 






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XO Communications, LLC

13865 Sunrise Valley Drive

Herndon, VA 20171




Senior Notes due April 15, 2009




Dated as of March 13, 2008




To the Purchasers listed in

    the attached Schedule A:




Ladies and Gentlemen:




     XO Communications, LLC, a Delaware limited liability company (the “Company”), agrees with each
of the purchasers listed in the attached Schedule A (the “Purchasers”) as follows:



SECTION 1. Authorization of Notes.





     Section 1.1. Authorization of Notes. The Company shall authorize the issue and sale of up to
$145,000,000 aggregate principal amount of its Senior Notes due April 15, 2009 (the “Notes”). As
used herein, the term “Notes” shall mean all notes originally delivered pursuant to this Agreement
and any such notes issued in substitution therefor pursuant to Section 12 of this Agreement. The
Notes shall be substantially in the forms set out in Exhibit 1 with such changes therefrom, if
any, as may be approved by the Purchasers and the Company. Certain capitalized terms used in this
Agreement are defined in Schedule B; references to a “Schedule” or an “Exhibit” are, unless
otherwise specified, to a Schedule or an Exhibit attached to this Agreement.




     Section 1.2. Provisions Relating to the Notes. Unless interest is paid in cash as provided
below, the unpaid principal amount of the Notes shall bear interest at the rate of 11.5% per
annum, which amounts shall be capitalized and added to the principal
amount of the Notes on April 15, 2008 and quarterly
thereafter on July 15, 2008, October 15, 2008, January 15, 2009 and April 15, 2009 without further action on
the part of the Company or any Purchaser (the “PIK Amount”). At the election of the Company and
following approval by a majority of Holdings’ disinterested independent directors, interest on the
unpaid principal amount of the Notes may be paid on a cash basis, in which case such interest
shall accrue from the preceding interest payment date, at the rate of 9.5% per annum, and shall be
payable on April 15, 2008 and quarterly in arrears thereafter on July 15, 2008, October 15, 2008, January 15, 2009 and April 15,
2009. All computations of interest shall be made on the basis of a 360-day year
consisting of twelve 30-day months. To the extent permitted by law, any overdue payment
(including any overdue prepayment) of principal and any overdue payment of interest shall bear
cash interest at the Default Rate.




 









 







SECTION 2. Sale and Purchase of Notes; Guaranty Agreement.





     Section 2.1. Sale and Purchase of Notes. Subject to the terms and conditions of this
Agreement, the Company shall issue and sell to each Purchaser and each Purchaser shall purchase
from the Company, at the Closing provided for in Section 3, Notes in the principal amount
specified opposite such Purchaser’s name in Schedule A at the purchase price of 100% of the
principal amount thereof. Each Purchaser’s obligations hereunder are several and not joint, and
no Purchaser shall have any obligation or liability to any Person for the performance or
nonperformance by any other Purchaser hereunder.




     Section 2.2. Guaranty Agreement. The obligations of the Company hereunder and under the
Notes are jointly and severally absolutely, unconditionally and irrevocably guaranteed by the
Guarantors, pursuant to a Guaranty Agreement dated as of March 13, 2008 (as the same may be
amended, supplemented, restated or otherwise modified from time to time, the “Guaranty Agreement”)
substantially in the form of Exhibit 2.



SECTION 3. Closing.




     The sale and purchase of the Notes to be purchased by the Purchasers shall occur at the
offices of Pillsbury Winthrop Shaw Pittman LLP, 1540 Broadway, New York, New York 10036, at 10:00
a.m., New York, New York time, at a closing (the “Closing”) on March 13, 2008 or on such other
Business Day thereafter as may be agreed upon by the Company and the Purchasers. At the Closing,
the Company shall deliver to each Purchaser a single Note dated the date of the Closing and
registered in such Purchaser’s name (or in the name of its nominee), against delivery by wire
transfer by such Purchaser of immediately available funds in the amount of the purchase price of
such Note for the account of the Company. If at the Closing the Company shall fail to tender such
Notes to any Purchaser as provided above in this Section 3, or any of the conditions specified in
Section 4 shall not have been fulfilled to any Purchaser’s satisfaction, such Purchaser shall, at
its election, be relieved of all further obligations under this Agreement, without thereby waiving
any rights such Purchaser may have by reason of such failure or such nonfulfillment. If at the
Closing any of the conditions specified in Section 5 shall not have been fulfilled to the Company’s
satisfaction, the Company shall, at its election, be relieved of all further obligations under this
Agreement. Subject to the satisfaction of the conditions set forth in this Agreement, the closing
of any additional sale of the Notes (the “Subsequent Closing”) shall take place on or prior to
April 15, 2008 and at such time and/or location(s) or by such other means, including transmission
of signature pages by telecopy, as may be agreed upon by the additional purchasers of such Notes;
provided that the representations and warranties to be delivered to any additional purchasers and
the covenants to which such additional purchasers shall benefit shall be identical as those
provided at the Closing.



SECTION 4. Purchaser’s Conditions to Closing.




     Each Purchaser’s obligation to purchase and pay for the Notes to be sold to such Purchaser at
the Closing is subject to the fulfillment to such Purchaser’s reasonable satisfaction, prior to or
at the Closing or Subsequent Closing, of the following conditions:



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     Section 4.1. Representations and Warranties. The representations and warranties of the
Company in this Agreement shall be true and correct in all material respects when made and at the
time of the Closing or Subsequent Closing, as appropriate.




     Section 4.2. Performance; No Default. The Company and each Guarantor shall have performed
and complied with all agreements and conditions contained in this Agreement and the Guaranty
Agreement required to be performed or complied with by it prior to or at the Closing and, after
giving effect to the issue and sale of the Notes, no Default or Event of Default shall have
occurred and be continuing.




     Section 4.3. Compliance Certificates.




     (a) Officer’s Certificate. (1) The Company shall have delivered to such Purchaser an
Officer’s Certificate, dated the date of the Closing or Subsequent Closing, as appropriate,
in substantially the form attached as Exhibit 4.3(a)(1) hereto.




     (2) Each Guarantor shall have delivered to such Purchaser an Officer’s Certificate,
dated the date of the Closing or Subsequent Closing, as appropriate, in substantially the
form attached as Exhibit 4.3(a)(2) hereto.




     (b) Secretary’s Certificate. (1) The Company shall have delivered to such Purchaser a
certificate certifying as to the resolutions attached thereto and other corporate
proceedings relating to the authorization, execution and delivery of the Notes and this
Agreement in substantially the form attached as Exhibit 4.3(b)(1) hereto.




     (2) Each Guarantor shall have delivered to such Purchaser a certificate certifying as
to the resolutions attached thereto and other corporate or similar proceedings relating to
the authorization, execution and delivery of the Guaranty Agreement in substantially the
form attached as Exhibit 4.3(b)(2) hereto.




     Section 4.4. Guaranty Agreement. The Guaranty Agreement shall have been duly authorized,
executed and delivered by each Guarantor and shall be in full force and effect and such Purchaser
shall have received a duly executed copy thereof.




     Section 4.5. Opinions of Counsel. Such Purchaser shall have received opinions in form and
substance reasonably satisfactory
to such Purchaser, dated the date of the Closing or Subsequent Closing, as appropriate, one
or more counsel to the Company and the Guarantors covering the matters set forth in Exhibit 4.5
and covering such other matters incident to the transactions contemplated hereby as such Purchaser
may reasonably request (and the Company hereby instructs its counsel to deliver such opinion to
such Purchaser).




     Section 4.6. Purchase Permitted by Applicable Law, Etc. On the date of the Closing or
Subsequent Closing, as appropriate, such Purchaser’s purchase of Notes shall (a) be permitted by
the laws and regulations of each jurisdiction to which such Purchaser is subject and (b) not
violate any applicable law or regulation (including, without limitation, Regulation T, U or X of
the Board of Governors of the Federal Reserve System).



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     Section 4.7. Waiver. The Company shall have received all requisite waivers under the Senior
Secured Facility.




     Section 4.8. Funding Instructions. At least two Business Days prior to the date of any
Closing or any Subsequent Closing, such Purchaser shall have received written instructions
executed by an authorized financial officer of the Company directing the manner of the payment of
funds and setting forth relevant payment details.




     Section 4.9. Proceedings and Documents. All corporate and other proceedings in connection
with the transactions contemplated by this Agreement and all documents and instruments incident to
such transactions shall be reasonably satisfactory to such Purchaser, and such Purchaser shall
have received all such counterpart originals or certified or other copies of such documents as
such Purchaser may reasonably request.



SECTION 5. Company’s Conditions to Closing





The Company’s obligations to sell the Notes to each Purchaser at the Closing is subject to the
fulfillment to the Company’s reasonable satisfaction, prior to or at the Closing, of the following
conditions:




     Section 5.1. Related Transactions. The Company shall have consummated the sale of
$75,000,000 of the Notes scheduled to be sold pursuant to this Agreement in order to effect the
Closing.




     Section 5.2. Fairness Opinion. The Special Committee of Independent Directors of Holdings,
on behalf of Holdings, shall have received the written opinion (or oral opinion to be confirmed in
writing) of the fairness to Holdings, from a financial point of view, of the consideration
received from the sale of the Notes, based on the principal economic terms of the Notes, from its
independent financial advisor, Cowen and Company, LLC, in such form as acceptable to the Special
Committee of Independent Directors of Holdings.



SECTION 6. Representations and Warranties of the Company.




     In order to induce the Purchasers to enter into this Agreement, the Company represents and
warrants to each Purchaser, on the Closing or Subsequent Closing, as appropriate, that, except as
set forth on the Schedules hereto (whether or not a particular Schedule is described below), the
following statements are true and correct:




     Section 6.1. Organization; Requisite Power and Authority; Qualification. Each of the Company
and its Subsidiaries (i) is validly existing and (to the extent applicable) in good standing under
the laws of its jurisdiction of organization, (ii) has all requisite power and authority to own
and operate its properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into this Agreement and the Guaranty Agreement, as appropriate, and (iii) is
qualified to do business and (to the extent applicable) in good standing in every jurisdiction
where its assets are located and wherever necessary to carry out its business and operations,
except in jurisdictions where the failure to be so qualified or in good standing has not had, and
would not be reasonably expected to have, a Material Adverse Effect.


-4-









 








     Section 6.2. Capital Stock and Ownership. The Capital Stock of the Company has been duly
authorized and validly issued and is fully paid and non-assessable.




     Section 6.3. Due Authorization. The execution, delivery and performance of this Agreement and
the Guaranty Agreement have been duly authorized by all necessary action on the part of each party
thereto (other than the Purchasers), including unanimous approval by the Special Committee of
Independent Directors of Holdings.




     Section 6.4. No Conflict. Subject to Schedule 6.4, the execution, delivery and performance by
the Company of this Agreement and the execution, delivery and performance by the Guarantors of the
Guaranty Agreement and the consummation of the transactions contemplated thereunder do not and
will not (a) violate any provision of any law or any governmental rule or regulation applicable to
the Company or any of its Subsidiaries, any of the Organizational Documents of the Company or any
of its Subsidiaries, or any order, judgment or decree of any court or other agency of government
binding on the Company or any of its Subsidiaries, except to the extent such violation would not
have a Material Adverse Effect; (b) breach or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of the Company or any of its Subsidiaries, except
to the extent such breach or default would not have a Material Adverse Effect; (c) result in or
require the creation or imposition of any Lien upon any of the properties or assets of the Company
or any of its Subsidiaries, except to the extent such creation or imposition would not have a
Material Adverse Effect; or (d) require any approval of stockholders or any approval or consent of
any Person under any Contractual Obligation of the Company or any of its Subsidiaries, which, in
either case, has not been obtained, except to the extent such approval would not reasonably be
expected to have a Material Adverse Effect.




     Section 6.5. Governmental Consents. Subject to Schedule 6.5, the execution, delivery and
performance by each of the Company and the Guarantors of this Agreement and the Guaranty
Agreement, as appropriate, to which it is a party and the consummation of the transactions
contemplated hereunder do not and will not require any registration with, consent or approval of,
or notice to, or other action to, with or by, any Governmental Authority, except (a) for such of
the foregoing that will have been made or obtained on or before the Closing or (b) where failure
to do so would not reasonably be expected to result in a Material Adverse Effect.




     Section 6.6. Binding Obligation. Each of this Agreement and the Guaranty Agreement has been
duly executed and delivered by the Company and each of the Guarantors party thereto and is the
legally valid and binding obligation of such entity, enforceable against such entity in accordance
with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws relating to or limiting creditors’ rights
generally or by equitable principles relating to enforceability.




     Section 6.7. Financial Statements. Holdings has filed all financial statements required to be
filed with the Securities and Exchange Commission.



-5-









 






     Section 6.8. No Material Adverse Change. Except as set forth on Schedule 6.8, since December
31, 2007, no event or change has occurred that has caused or evidences, either in any case or in
the aggregate, a Material Adverse Effect.




     Section 6.9. Adverse Proceedings, etc. Except as set forth on Schedule 6.9 or as previously
disclosed in a filing with the Securities and Exchange Commission, there are no Adverse
Proceedings, individually or in the aggregate, that would reasonably be expected to have a
Material Adverse Effect. Neither the Company nor any of its Subsidiaries is subject to or in
default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of
any court or any federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect. No judgment, order, injunction or
other restraint prohibiting or imposing materially adverse conditions upon this Agreement, the
Guaranty Agreement or any of the transactions contemplated hereby or thereby shall exist.




     Section 6.10. Payment of Taxes. All material tax returns and reports of the Company and its
Subsidiaries required to be filed by any of them have been timely filed or caused to be filed, and
all taxes shown on such tax returns to be due and payable, and all material assessments, fees and
other governmental charges upon the Company and its Subsidiaries and upon their respective
properties, assets, income, businesses and franchises which are due and payable have been paid or
caused to be paid when due and payable, except such taxes the amount, applicability or validity of
which are being contested in good faith by appropriate proceedings and with respect to which
reserves or
other appropriate provisions, if any, as shall be required in conformity with GAAP shall have
been made or provided therefor. The Company knows of no proposed material tax assessment against
the Company or any of its Subsidiaries that is not being actively contested by the Company or such
Subsidiary in good faith and by appropriate proceedings; provided, such reserves or other
appropriate provisions, if any, as shall be required in conformity with GAAP shall have been made
or provided therefor.




     Section 6.11. No Defaults. Neither the Company nor any of its Subsidiaries is in default in
the performance, observance or fulfillment of any of the obligations, covenants or conditions
contained in any of its Contractual Obligations in effect on the Closing, and no condition exists
which, with the giving of notice or the lapse of time or both, would constitute such a default,
except where the consequences, direct or indirect, of such default or defaults, if any, would not
reasonably be expected to have a Material Adverse Effect.




     Section 6.12. Material Contracts. All contracts required to be filed by Holdings under Item
601 of Regulation S-K of the Securities and Exchange Commission have been filed with the
Securities and Exchange Commission. All such material contracts are in full force and effect to
the extent not terminated in accordance with their respective terms.




     Section 6.13. Governmental Regulation. Subject to Schedule 6.13, neither the Company nor any
of the Guarantors is subject to regulation under any other federal or state statute or regulation
which may render all or any portion of the Notes unenforceable. Neither the Company nor any of its
Subsidiaries is required to register as an investment company under the Investment Company Act.



-6-









 





     Section 6.14. Margin Stock. Neither the Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock. No part of the proceeds of the Notes shall be
used, whether directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry Margin Stock and the making of the Notes does not and will not violate
Regulation T, U or X of the Board of Governors of the Federal Reserve System.




     Section 6.15. Certain Fees. No broker’s or finder’s fee or commission shall be payable with
respect hereto other than the fees, if any, paid to the financial and other advisors of Holdings
and the Company and the financial and other advisors of the Special Committee of Independent
Directors of Holdings.




     Section 6.16. Compliance with Statutes, etc. Each of the Company and its Subsidiaries is in
compliance with all applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business
and the ownership of its property, except such non-compliance that, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse Effect.




     Section 6.17. Fairness Opinion. The Special Committee of Independent Directors of Holdings,
on behalf of Holdings, has received the written opinion (or oral opinion to be confirmed in
writing) of the fairness to Holdings, from a financial point of view, of the consideration
received from the sale of the Notes, based on the principal economic terms of the Notes, from its
independent financial advisor, Cowen and Company, LLC, in such form as acceptable to the Special
Committee of Independent Directors of Holdings.



SECTION 7. Representations of the Purchasers.





     Section 7.1. Purchase for Investment. Each Purchaser severally represents that it is
purchasing the Notes for its own account or for one or more separate accounts maintained by such
Purchaser and not with a view to the distribution thereof. Each Purchaser severally represents
that it has not and will not enter into any contractual relationship with any distributor with
respect to the distribution of the Notes, except with its Affiliates or with the prior written
consent of the Company, that would cause Purchaser to be deemed an underwriter, as defined in
Section 2(11) of the Securities Act.




     Section 7.2. No Registration under the Securities Act. Each Purchaser understands that the
Notes have not been registered under the Securities Act and may be resold only if registered
pursuant to the provisions of the Securities Act or if an exemption from registration is
available, except under circumstances where neither such registration nor such an exemption is
required by law, and that the Company is not required to register the Notes.




     Section 7.3. Accredited Investor. Each Purchaser severally represents and warrants that it
is an “accredited investor” as defined in Regulation D under the Securities Act and is knowledgeable, sophisticated and experienced in business and financial matters, and it fully
understands the limitations on ownership, sale, transfer or other disposition of the Notes.




-7-









 







SECTION 8. Payment of the Notes.





     Section 8.1. Required Prepayments. The Notes shall not be subject to any required prepayment
and the entire unpaid principal amount of the Notes plus accrued and unpaid interest thereon shall
be due and payable on the stated maturity thereof.




     Section 8.2. Optional Prepayments.




     (a) Optional Prepayments of Notes. The Company may, at its option, upon notice as
provided below, prepay at any time all or part of the Notes in an amount not less than $5
million in aggregate principal amount and integral multiples of $1 million in excess of that
amount of the Notes then outstanding in the case of a partial prepayment, at 100% of the
principal amount so prepaid, plus accrued and unpaid interest thereon.




     (b) Notice of Optional Prepayments. The Company shall give each holder of Notes to be
prepaid under this Section 8.2 (with a copy to each other holder of Notes) written notice of
each optional prepayment of Notes under this Section 8.2 not less than five business days
prior to the date fixed for such prepayment. Each such notice shall specify such date, the
aggregate principal amount of the Notes to be prepaid on such date, the principal amount of
each Note held by such holder to be prepaid (determined in accordance with Section 8.3), and
the interest to be paid on the prepayment date with respect to such principal amount being
prepaid.




     Section 8.3. Allocation of Partial Prepayments. In the case of each partial prepayment of
the Notes, the principal amount of the Notes to be prepaid shall be allocated among all of the
Notes outstanding in proportion, as nearly as practicable, to the respective unpaid principal
amounts thereof.




     Section 8.4. Maturity; Surrender, Etc. In the case of each prepayment of Notes pursuant to
this Section 8, the principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such principal amount
accrued to such date. Any Note paid or prepaid in full shall be surrendered to the Company and
cancelled and shall not be reissued, and no Note shall be issued in lieu of any prepaid principal
amount of any Note.



SECTION 9. Affirmative Covenants.





     The Company covenants and agrees that until payment in full of all Notes, it shall perform,
and shall cause each of its Subsidiaries to perform, all covenants in this Section 9.  




     Section 9.1. Financial Statements and Other Reports. Holdings shall make all filings
required to be made with the Securities and Exchange Commission.



-8-









 






     Section 9.2. Existence. Except as otherwise permitted under this Agreement, the Company
shall, and shall cause each of its Subsidiaries to, at all times preserve and keep in full force
and effect its existence and all rights and franchises, licenses and permits material to its
business; provided, neither the Company nor any of its Subsidiaries shall be required to preserve
any such existence, right or franchise, license or permit if the Company’s or such Person’s board
of directors (or similar governing body) shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company or such Person.




     Section 9.3. Payment of Taxes and Claims. The Company shall, and shall cause each of its
Subsidiaries to, pay all Taxes imposed upon it or any of its properties or assets or in respect of
any of its income, businesses or franchises before any penalty or fine accrues thereon, and all
claims (including claims for labor, services, materials and supplies) for sums that have become
due and payable and that by law have or may become a Lien upon any of its properties or assets,
prior to the time when any
penalty or fine shall be incurred with respect thereto, except for such non-compliance that
could not reasonably be expected to result in a Material Adverse Effect, and provided, no such Tax
or claim need be paid if it is being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted, so long as adequate reserves or other appropriate provision,
as shall be required in conformity with GAAP shall have been made therefor.




     Section 9.4. Insurance. The Company shall maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third party property
damage insurance, business interruption insurance and casualty insurance with respect to
liabilities, losses or damage in respect of the assets, properties and businesses of the Company
and its Subsidiaries as may customarily be carried or maintained under similar circumstances by
Persons of established reputation engaged in similar businesses, in each case in such amounts
(giving effect to self-insurance), with such deductibles, covering such risks and otherwise on
such terms and conditions as shall be customary for such Persons, except for such non-compliance
that could not reasonably be expected to result in a Material Adverse Effect.




     Section 9.5. Compliance with Laws. The Company shall comply, and shall cause each of its
Subsidiaries to comply, with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, noncompliance with which could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.




     Section 9.6. Subsequent Guarantors. The Company shall use its commercially reasonable
efforts to cause XO Communications Services, Inc. to execute promptly a joinder agreement to the
Guaranty Agreement as soon as practicable following receipt of all necessary state regulatory
approvals related to the granting of such Guaranty. Once such entity executes such joinder
agreement to the Guaranty Agreement, it shall become a Guarantor for all purposes of this
Agreement.



SECTION 10. Events of Default.




     An “Event of Default” shall exist if any of the following conditions or events shall occur and
be continuing:



-9-









 






     (a) the Company defaults in the payment of any principal on any Note when the same
becomes due and payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise;




     (b) the Company defaults in the payment of any interest on any Note for more than 10
Business Days after the same becomes due and payable;




     (c) the Company defaults in the performance of or compliance with any term contained
herein (other than those referred to in paragraphs (a) and (b) of this Section 10) and such
default is not remedied within 30 days after the earlier of (1) a Responsible Officer
obtaining actual knowledge of such default and (2) the Company receiving written notice of
such default from any holder of a Note (any such written notice to be
identified as a “notice of default” and to refer specifically to this paragraph (c) of
Section 10);




     (d) the Company or any Significant Subsidiary is in default in the performance of or
compliance with any term of any evidence of any Indebtedness in an aggregate outstanding
principal amount of at least $50,000,000 or of any mortgage, indenture or other agreement
relating thereto or any other condition exists (which default or condition has not been
cured or waived prior to any action being taken hereunder or under the Notes with respect to
such default), and as a consequence of such default or condition such Indebtedness has
become due and payable before its stated maturity or before its regularly scheduled dates of
payment;




     (e) the Company or any Significant Subsidiary (1) is generally not paying, or admits in
writing its inability to pay, its debts as they become due, (2) files, or consents by answer
or otherwise to the filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction,
(3) makes an assignment for the benefit of its creditors, (4) consents to the appointment of
a custodian, receiver, trustee or other officer with similar powers with respect to it or
with respect to any substantial part of its property, (5) is adjudicated as insolvent or to
be liquidated or (6) takes corporate or other action for the purpose of any of the
foregoing; or




     (f) a court or governmental authority of competent jurisdiction enters an order
appointing, without consent by the Company or any of its Significant Subsidiaries, a
custodian, receiver, trustee or other officer with similar powers with respect to it or with
respect to any substantial part of its property, or constituting an order for relief or
approving a petition for relief or reorganization or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or
ordering the dissolution, winding-up or liquidation of the Company or any of its Significant
Subsidiaries, or any such petition shall be filed against the Company or any of its
Significant Subsidiaries and such petition shall not be dismissed within 60 days; or




     (g) any Guarantor that is a Significant Subsidiary defaults in the performance of or
compliance with any term contained in the Guaranty Agreement and such default is not
remedied within the period of grace, if any, allowed with respect thereto or the Guaranty
Agreement shall cease to be in full force and effect for any reason whatsoever, including,
without limitation, a determination by any Governmental Authority or court that such
agreement is invalid, void or unenforceable or any Guarantor that is a Significant
Subsidiary shall contest or deny in writing the validity or enforceability of the Guaranty
Agreement or any of its obligations thereunder.






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SECTION 11.Remedies on Default, Etc.





     Section 11.1. Acceleration.




     (a) If an Event of Default with respect to the Company described in paragraph (e) or
(f) of Section 10 (other than an Event of Default described in clause (1) of paragraph (e)
or described in clause (6) of paragraph (e) by virtue of the fact that such clause
encompasses clause (1) of paragraph (e)) has occurred, all the Notes then outstanding shall
automatically become immediately due and payable.




     (b) If any other Event of Default has occurred and is continuing, the Required Holders
may at any time at its or their option, by notice or notices to the Company, declare all the
Notes then outstanding to be immediately due and payable.




     (c) If any Event of Default described in paragraph (a) or (b) of Section 10 has
occurred and is continuing, any holder or holders of Notes at the time outstanding affected
by such Event of Default may at any time, at its or their option, by notice or notices to
the Company, declare all the Notes held by it or them to be immediately due and payable.




     Upon any Note becoming due and payable under this Section 11.1, whether automatically or by
declaration, such Note shall forthwith mature and the entire unpaid principal amount of such Note,
plus all accrued and unpaid interest thereon shall be immediately due and payable, in each and
every case without presentment, demand, protest or further notice, all of which are hereby waived.




     Section 11.2. Other Remedies. If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or have been declared immediately
due and payable under Section 11.1, the holder of any Note at the time outstanding may proceed to
protect and enforce the rights of such holder by an action at law, suit in equity or other
appropriate proceeding, whether for the specific performance of any agreement contained herein or
in any Note, or for an injunction against a violation of any of the terms hereof or thereof, or in
aid of the exercise of any power granted hereby or thereby or by law or otherwise.




     Section 11.3. Rescission. At any time after any Notes have been declared due and payable
pursuant to clause (b) or (c) of Section 11.1, the Required Holders, by written notice to the
Company, may rescind and annul any such declaration and its consequences if (a) the Company has
paid all overdue cash interest on the Notes at the Default Rate, (b) all Events of Default and
Defaults, other than non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section 15 and (c) no judgment or
decree has been entered for the payment of any monies due pursuant hereto or to the Notes. No
rescission and annulment under this Section 11.3 shall extend to or affect any subsequent Event of
Default or Default or impair any right consequent thereon.




-11-









 








     Section 11.4. No Waivers or Election of Remedies, Expenses, Etc. No course of dealing and no
delay on the part of any holder of any Note in exercising any right, power or remedy shall operate
as a waiver thereof or otherwise prejudice such holder’s rights, powers or remedies. No right,
power or remedy conferred by this Agreement, the Guaranty Agreement or by any Note upon any holder
thereof shall be exclusive of any other right, power or remedy referred to herein or therein or
now or hereafter available at law, in equity, by statute or otherwise. Without limiting the
obligations of the Company under Section 12, the Company shall pay to the holder of each Note on
demand such further amount as shall be sufficient to cover all costs and expenses of such holder
incurred in any enforcement or collection under this Section 11, including, without limitation,
reasonable attorneys’ fees, expenses and disbursements.



SECTION 12. Registration; Exchange; Substitution of Notes.





     Section 12.1. Registration of Notes. The Company shall keep at its principal executive
office a register for the registration and registration of transfers of Notes. The name and
address of each holder of one or more Notes, each transfer thereof and the name and address of
each transferee of one or more Notes shall be registered in such register. Prior to due
presentment for registration of transfer, the Person in whose name any Note shall be registered
shall be deemed and treated as the owner and holder thereof for all purposes hereof, and the
Company shall not be affected by any notice or knowledge to the contrary.




     Section 12.2. Transfer and Exchange of Notes. Upon surrender of any Note at the principal
executive office of the Company for registration of transfer or exchange (and in the case of a
surrender for registration of transfer, duly endorsed or accompanied by a written instrument of
transfer duly executed by the registered holder of such Note or its attorney duly authorized in
writing and accompanied by the address for notices of each transferee of such Note or part
thereof), the Company shall execute and deliver not more than five Business Days following
surrender of such Note, at the Company’s expense (except as provided below), one or more new Notes
(as requested by the holder thereof) in exchange therefor, in an aggregate principal amount equal
to the unpaid principal amount of the surrendered Note. Each such new Note shall be payable to
such Person as such holder may request and shall be substantially in the form of Exhibit 1. Each
such new Note shall be dated and bear interest from the date to which interest shall have been
paid on or capitalized and added to the principal amount of such surrendered Note or dated the
date of the surrendered Note if no interest shall have been paid on or capitalized and added to
the principal amount thereon. The Company may require payment of a sum sufficient to cover any
stamp tax or governmental charge imposed in respect of any such transfer of Notes. Notes shall
not be transferred in denominations of less than $5,000,000. Any transferee, by its acceptance of
a Note registered in its name (or the name of its nominee), shall be deemed to have made the
representations set forth in Section 6.



-12-









 






     Section 12.3. Replacement of Notes. Upon receipt by the Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be notice from such Purchaser of such ownership and such loss, theft,
destruction or mutilation), and




     (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to
it, or




     (b) in the case of mutilation, upon surrender and cancellation thereof,


the Company at its own expense shall execute and deliver not more than five Business Days following
satisfaction of such conditions, in lieu thereof, a new Note, dated and bearing interest from the
date to which interest shall have been paid on or capitalized and added to the principal amount of
such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or
mutilated Note if no interest shall have been paid on or capitalized and added to the principal
amount of such Note.




SECTION 13. Payments on Notes.





     Section 13.1. Home Office Payment. The Company shall pay all sums becoming due on such Note
for principal and interest by the method and at the address specified for such purpose below such
Purchaser’s name in Schedule A, or by such other method or at such other address as such Purchaser
shall have from time to time specified to the Company in writing for such purpose, without the
presentation or surrender of such Note or the making of any notation thereon, except that upon
written request of the Company such Purchaser shall surrender such Note for cancellation,
reasonably promptly after any such request, to the Company at its principal executive office, in
connection with any payment or prepayment in full of any Note. Prior to any sale or other
disposition of any Note held by any Purchaser or its nominee such Purchaser shall, at its
election, either endorse thereon the amount of principal paid thereon and the last date to which
interest has been paid thereon or surrender such Note to the Company in exchange for a new Note
pursuant to Section 12.2.



SECTION 14. Survival of Representations and Warranties; Entire Agreement.




     All representations and warranties contained herein shall survive the execution and delivery
of this Agreement and delivery of and payment for the Notes. All statements contained in any
certificate or other instrument delivered by or on behalf of the Company pursuant to this Agreement
shall be deemed representations and warranties of the Company under this Agreement. Subject to the
preceding sentence, this Agreement and the Notes embody the entire agreement and understanding
between the Purchasers and the Company and supersede all prior agreements and understandings
relating to the subject matter hereof.



SECTION 15. Amendment and Waiver.





     Section 15.1. Requirements. This Agreement and the Notes may be amended, and the observance
of any term hereof or of the Notes may be waived (either retroactively or prospectively), with
(and only with) the written consent of the Company and the Required Holders, except that no such
amendment or waiver may, without the written consent of the holder of each Note at the time
outstanding affected thereby change the amount or time of any prepayment or payment of principal
of, or reduce the rate or change the time of payment or method of computation of interest on, the
Notes, except as otherwise provided in Section 11 hereof.


-13-









 








     Section 15.2. Solicitation of Holders of Notes.




     (a) Solicitation. The Company shall provide each holder of the Notes (irrespective of
the amount of Notes then owned by it) with notice at least five
business days in
advance of which a decision is required with respect to any proposed amendment, waiver or consent in respect of
any of the provisions hereof or of the Notes. The Company shall deliver executed or true
and correct copies of each amendment, waiver or consent effected pursuant to the provisions
of this Section 15 to each holder of outstanding Notes promptly
(but no later than five business days) following the date on which
it is executed and delivered by, or receives the consent or approval of, the requisite
holders of Notes.




     (b) Payment. The Company shall not, directly or indirectly, pay or cause to be paid
any remuneration, whether by way of supplemental or additional interest, fee or otherwise,
or grant any security, to any holder of Notes as consideration for or as an inducement to
the entering into by any holder of Notes of any waiver or amendment of any of the terms and
provisions hereof unless such remuneration is concurrently paid, or security is concurrently
granted, on the same terms, ratably to each holder of Notes then outstanding even if such
holder did not consent to such waiver or amendment.





     (c) Consent in Contemplation of
Transfer. Any consent made pursuant to this Section 15
by a holder of Notes that has transferred or has agreed to transfer its Notes to the Company
or any Affiliate (or Person acting on their behalf) and has provided or has agreed to
provide such written consent as a condition to such transfer shall be void and of no force
or effect except solely as to such holder, and any amendments effected or waivers granted or
to be effected or granted that would not have been or would not be so effected or granted
but for such consent (and the consents of all other holders of Notes that were acquired
under the same or similar conditions) shall be void and of no force or effect except solely
as to such holder.





     Section 15.3. Binding Effect, Etc. Any amendment or waiver consented to as provided in this
Section 15 applies equally to all holders of Notes and is binding upon them and upon each future
holder of any Note and upon the Company without regard to whether such Note has been marked to
indicate such
amendment or waiver. No such amendment or waiver will extend to or affect any obligation,
covenant, agreement, Default or Event of Default not expressly amended or waived or impair any
right consequent thereon. No course of dealing between the Company and the holder of any Note nor
any delay in exercising any rights hereunder, under the Guaranty Agreement or under any Note shall
operate as a waiver of any rights of any holder of such Note. As used herein, the term “this
Agreement” and references thereto shall mean this Agreement as it may from time to time be amended
or supplemented.



-14-









 





SECTION 16. Notices.




     Any notice or communication pursuant or related to this Agreement shall be deemed given if in
writing (i) when delivered in person, (ii) five days after mailing when mailed by first class mail,
(iii) when sent by facsimile transmission, with transmission confirmed or (iv) one day after
sending when transmitted via Federal Express or other overnight courier service. Any such notice
must be sent:




     (1) if to any Purchaser or its nominee, to such Purchaser or its nominee at the address
specified for such communications in Schedule A, or at such other address as such Purchaser
or its nominee shall have specified to the Company in writing,




     (2) if to any other holder of any Note, to such holder at such address as such other
holder shall have specified to the Company in writing, or




     (3) if to the Company, to the Company at its address set forth at the beginning hereof
to the attention of Chief Financial Officer, or at such other address as the Company shall
have specified to the holder of each Note in writing.



SECTION 17. Reproduction of Documents.




     This Agreement and all documents relating hereto, including, without limitation, (a) consents,
waivers and modifications that may hereafter be executed, (b) documents received by the Purchasers
at the Closing (except the Notes themselves) and (c) financial statements, certificates and other
information hereafter furnished to any holder of the Notes, may be reproduced by any holder by any
photographic, photostatic, microfilm, microcard, miniature photographic or other similar process
and such holder may destroy any original document so reproduced. The Company agrees and stipulates
that, to the extent permitted by applicable law, 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 any holder of the Notes
in the regular course of business) and any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence. This Section 18 shall not prohibit the
Company or any other holder of Notes from contesting any such reproduction to the same extent that
it could contest the original, or from introducing evidence to demonstrate the inaccuracy of any
such reproduction.



SECTION 18. Confidential Information.




     For the purposes of this Section 18, “Confidential Information” shall mean information
delivered to any Purchaser by or on behalf of the Company or any Subsidiary in connection with the
transactions contemplated by or otherwise pursuant to this Agreement, provided that such term does
not include information that (a) was publicly known or otherwise known to such Purchaser (other
than disclosures pursuant to a confidentiality or other non-disclosure agreement with Holdings or
the Company) prior to the time of such disclosure, (b) subsequently becomes publicly known through
no act or omission by such Purchaser or any Person acting on such Purchaser’s behalf or
(c) otherwise becomes known to such Purchaser other than through disclosure by the Company or any
Subsidiary.



-15-









 




 Each Purchaser shall maintain the confidentiality of such Confidential Information,
provided that such Purchaser may deliver or disclose Confidential Information to (1) its directors,
officers, trustees, employees, agents, attorneys and affiliates (to the extent such disclosure
reasonably relates to the administration of the investment represented by its Notes) who agree to
hold confidential the Confidential Information substantially in accordance with the terms of this
Section 18, (2) its financial advisors and other professional advisors who agree to hold
confidential the Confidential Information substantially in accordance with the terms of this
Section 18, (3) any other holder of any Note, (4) any Person to whom such Purchaser offers to sell
any Note (if such Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 18), (5) any Federal or state regulatory
authority having jurisdiction over such Purchaser that requires access to such Confidential
Information or (6) any other Person to which such delivery or disclosure may be necessary or
appropriate in the opinion of such Purchaser’s counsel (i) to effect compliance with any law, rule,
regulation or order applicable to such Purchaser (and, if not prohibited by applicable law, such
Purchaser shall use commercially reasonable efforts to give notice to the Company thereof prior to
such disclosure and, in any event, within a reasonable period of time thereafter), (ii) in response
to any subpoena or other legal process (and, if not prohibited by applicable law, such Purchaser
shall use commercially reasonable efforts to give notice to the Company thereof prior to such
disclosure and, in any event, within a reasonable period of time thereafter), (iii) in connection
with any litigation to which such Purchaser is a party (and, subject to clause (iv) below, if not
prohibited by applicable law, such Purchaser shall use commercially reasonable efforts to give
notice to the Company thereof prior to such disclosure and, in any event, within a reasonable
period of time thereafter) or (iv) if an Event of Default has occurred and is continuing, to the
extent such Purchaser may reasonably determine such delivery and disclosure to be necessary or
appropriate in the enforcement or for the protection of the rights and remedies under such
Purchaser’s Notes, this Agreement or the Guaranty Agreement. Each holder of a Note, by its
acceptance of a Note, shall be deemed to have agreed to be bound by and to be entitled to the
benefits of this Section 19 as though it were a party to this Agreement. On reasonable request by
the Company in connection with the delivery to any holder of a Note of information required to be
delivered to such holder under this Agreement or requested by such holder (other than a holder that
is a party to this Agreement or its nominee), such holder shall enter into an agreement with the
Company embodying the provisions of this Section 18. The terms of this Section 18 shall not
supersede, and shall be in addition to, any prior agreement, whether written or oral, between the
Company or Holdings and any Purchaser with respect to the confidentiality of information related to
the Company or Holdings.




SECTION 19. Substitution of Purchaser.




     Each Purchaser shall have the right to substitute any one of its Affiliates as the purchaser
of the Notes that such Purchaser has agreed to purchase hereunder, by written notice to the
Company, which notice shall be signed by both such Purchaser and such Affiliate, shall contain such
Affiliate’s agreement to be bound by this Agreement and shall contain a confirmation by such
Affiliate of the accuracy with respect to it of the representations
set forth in Section 7. Upon
receipt of such notice, wherever the word “Purchaser” is used in this Agreement (other than in this
Section 19), such word shall be deemed to refer to such Affiliate in lieu of such Purchaser. In
the event that such Affiliate is so substituted as a purchaser hereunder and such Affiliate
thereafter transfers to such Purchaser all of the Notes then held by such Affiliate, upon receipt
by the Company of notice of such transfer, wherever the word “Purchaser” is used in this Agreement
(other than in this Section 19), such word shall no longer be deemed to refer to such Affiliate,
but shall refer to such Purchaser, and such Purchaser shall have all the rights of an original
holder of the Notes under this Agreement.


-16-









 






SECTION 20. Submission to Jurisdiction.




     Each of the Company and each Purchaser hereby irrevocably consents and submits to the
jurisdiction of any court located within the State of New York sitting in the Borough of Manhattan
and the United States District Court for the Southern District of New York and irrevocably agrees
that all actions or proceedings relating to this Agreement or the Notes may be litigated in such
courts, and the Company irrevocably waives any objection which it may have based on improper venue
or forum non conveniens to the conduct of any proceeding in any such court. The Company hereby
appoints the Corporation Service Company as the Company’s agent for the purpose of
accepting service of process within the State of New York and agrees to retain the Corporation
Service Company and consents that all such service of process be made by mail or messenger directed
to the Corporation Service Company, at its office located at 1133 Avenue of the Americas, Suite
3100, New York, NY 10036, or at such other address of the Corporation Service Company, located in
the State of New York, as may be designated by the Company by notice to each holder of Notes. Each
Purchaser hereby appoints the entity listed on Schedule A hereto
as the Purchaser’s agent
for the purpose of accepting service of process within the State of New York and agrees to retain
such entity and consents that all such service of process be made by mail or messenger directed to
such entity, at its office noted on Schedule A hereto, or at such other address of such entity,
located in the State of New York, as may be designated by such Purchaser by notice to the Company.
Nothing contained in this Section 20 shall affect the right of any holder of Notes to serve legal
process in any other manner permitted by law or to bring any action or proceeding in the courts of
any jurisdiction against the Company to enforce a judgment obtained in the courts of any other
jurisdiction.



SECTION 21. Miscellaneous.





     Section 21.1. Successors and Assigns. All covenants and other agreements contained in this
Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their respective
successors and assigns (including, without limitation, any subsequent holder of a Note) whether so
expressed or not.




     Section 21.2. Payments Due on Non-Business Days. Anything in this Agreement or the Notes to
the contrary notwithstanding, any payment on any Note that is due on a date other than a Business
Day shall be made on the next succeeding Business Day.




     Section 21.3. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by
law) not invalidate or render unenforceable such provision in any other jurisdiction.



-17-









 






     Section 21.4. Construction.




     (a) Each covenant contained herein shall be construed (absent express provision to the
contrary) as being independent of each other covenant contained herein, so that compliance
with any one covenant shall not (absent such an express contrary provision) be deemed to
excuse compliance with any other covenant. Where any provision herein 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) Where the character or amount of any asset or liability or item of income or
expense is required to be determined or any consolidation or other accounting computation is
required to be made by the Company for the purposes of this Agreement, the same shall be
done by the Company in accordance with GAAP, to the extent applicable, except where such
principles are inconsistent with the requirements of this Agreement.




     (c) This Agreement has been prepared by Dechert LLP, counsel to the Special Committee
of Independent Directors of Holdings, on behalf of Holdings.




     Section 21.5. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute one instrument.
Each counterpart may consist of a number of copies hereof, each signed by less than all, but
together signed by all, of the parties hereto.




     Section 21.6. Governing Law. This Agreement shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the law of the State of New York without
regard to conflict of law principles (except for New York General Obligations Law Section 5-1401).



*     *     *     *     *




-18-









 








     The execution hereof by the Purchasers shall constitute a contract among the Company and the
Purchasers for the uses and purposes hereinabove set forth.



	 	 	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	XO Communications, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	/s/ Carl J. Grivner	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Its	 	Manager	 	 
	 

	 	 	 	 	 	 

	 	 







-19-











 





The foregoing is hereby agreed

to as of the date thereof.




Arnos Corp.




	 	 	 	 	 
	By

	 	  /s/  Keith Cozza	 	 
	 

	 	 	 	 





	 	 	 	 	 
	Its

	 	Authorized Signatory	 	 
	 

	 	 	 	 






-20-









 








Information Relating to Purchasers




	 	 	 	 	 	 	 
	 

	 	Principal Amount of
	 	 
	Name and Address of Purchaser

	 	Notes to Be Purchased
	 	 
	 
	 	 	 	 	 	 
	Arnos Corp.

	 	$	75,000,000	 	 	 
	c/o Icahn Associates Corp.
	 	 	 	 	 	 
	767 Fifth Avenue
	 	 	 	 	 	 
	47th Floor
	 	 	 	 	 	 
	New York, NY 10153
	 	 	 	 	 	 






	 	 	 	 	 	 	 
	(1)

	 	All payments by wire transfer of
immediately available funds to:
	 	To be provided prior to each
relevant payment date.
	 	 
	 
	 	 	 	 	 	 
	 

	 	with sufficient information to identify
the source and application of such
funds.	 	 	 	 
	 
	 	 	 	 	 	 
	(2)

	 	All notices of payments and written
	 	Arnos Corp.	 	 
	 

	 	confirmations of such wire transfers:
	 	c/o Icahn Associates Corp.	 	 
	 

	 	 	 	767 Fifth Avenue	 	 
	 

	 	 	 	47th Floor	 	 
	 

	 	 	 	New York, NY 10153	 	 
	 
	 	 	 	 	 	 
	(3)

	 	All other communications
	 	Arnos Corp.	 	 
	 

	 	 	 	c/o Icahn Associates Corp.	 	 
	 

	 	 	 	767 Fifth Avenue	 	 
	 

	 	 	 	47th Floor	 	 
	 

	 	 	 	New York, NY 10153	 	 
	 
	 	 	 	 	 	 
	(4)

	 	Agent for service of process:
	 	Icahn Associates Corp.	 	 
	 

	 	 	 	767 Fifth Avenue	 	 
	 

	 	 	 	47th Floor	 	 
	 

	 	 	 	New York, NY 10153	 	 






Schedule A

(to Note Purchase Agreement)





 









 








DEFINED TERMS




     As used herein, the following terms have the respective meanings set forth below or set forth
in the Section hereof following such term:



     “Adverse Proceeding” shall mean any action, suit, proceeding (whether administrative, judicial
or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of
the Company or any of its Subsidiaries) at law or in equity, or before or by any Governmental
Authority, domestic or foreign, whether pending or, to the knowledge of any Responsible Officer,
threatened against or affecting Company or any of its Subsidiaries or any property of the Company
or any of its Subsidiaries.



     “Affiliate” shall mean, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 10% or more of the Securities having ordinary voting power for
the election of directors of such Person or (ii) to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities or by contract or
otherwise, provided, however, no Person shall be considered an Affiliate of the Company or its
Subsidiaries if neither the Company nor one of its Subsidiaries owns any equity interest in such
Person.



     “Business Day” shall mean any day other than a Saturday, a Sunday or a day on which commercial
banks in New York, New York are required or authorized to be closed.



     “Capital Stock” shall mean any and all shares, interests, participations or other equivalents
(however designated including, without limitation, phantom stock or stock appreciation rights) of
capital stock of a corporation, any and all equivalent ownership interests in a Person (other than
a corporation), including, without limitation, partnership interests and membership interests, and
any and all warrants, rights or options to purchase or other arrangements or rights to acquire any
of the foregoing.



     “Closing” is defined in Section 3.



     “Company” shall mean XO Communications, LLC, a Delaware limited liability company, or any
successor thereto.



     “Confidential Information” is defined in Section 18.



     “Contractual Obligation” shall mean, as applied to any Person, any provision of any Security
issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking,
agreement or other instrument to which that Person is a party or by which it or any of its
properties is bound or to which it or any of its properties is subject.



     “Default” shall mean an event or condition the occurrence or existence of which would, with
the lapse of time or the giving of notice or both, become an Event of Default.



     “Default Rate” shall mean that rate of cash interest that is 11.5%.



Schedule B

(to Note Purchase Agreement)




 









 








     “Event of Default” is defined in Section 10.



     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



     “Financial Officer Certification” shall mean, with respect to the financial statements for
which such certification is required, the certification of the chief financial officer or treasurer
of the Company that such financial statements fairly present, in all material respects, the
financial condition of the Company and its Subsidiaries as at the dates indicated and the results
of their operations and their cash flows for the periods indicated, subject to changes resulting
from audit and normal year-end adjustments.



     “GAAP” shall mean generally accepted accounting principles as in effect from time to time in
the United States of America.



     “Governmental Authority” shall mean any federal, state, municipal, national or other
government, governmental department, commission, board, bureau, court, agency or instrumentality or
political subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each
case whether associated with a state of the United States, the United States, or a foreign entity
or government.



     “Governmental Authorization” shall mean any permit, license, authorization, plan, directive,
consent order or consent decree of or from any Governmental Authority.



     “Guarantor” shall mean: Holdings; Telecommunications of Nevada, LLC; V&K Holdings, Inc.; XO
International Holdings, Inc.; XO International, Inc.; XO Services, Inc.; and XO Nevada Merger Sub,
Inc. For purposes of this Agreement, the term Guarantor shall also include any entity that becomes
party to the Guaranty Agreement by joinder after the date hereof commencing on the date of
execution of any such joinder.



     “Guaranty Agreement” is defined in Section 2.2.



     “holder” shall mean, with respect to any Note, the Person in whose name such Note is
registered in the register maintained by the Company pursuant to Section 12.1.



     “Holdings” shall mean XO Holdings, Inc., a Delaware corporation.



     “Indebtedness” shall mean, with respect to any Person, any indebtedness of such Person
(excluding accrued expenses and trade payables), whether or not contingent (1) in respect of
borrowed money, (2) evidenced by bonds, notes, debentures or similar instruments or letters of
credit (for reimbursement agreements in respect thereof) or (3) in respect of banker’s acceptances.



     “Investment Company Act” shall mean the Investment Company Act of 1940, as amended.



     “Lien” shall mean (i) any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale
or other title retention agreement or any lease in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing and (ii) in
the case of Securities, any purchase option, call or similar right of a third party with respect to
such Securities.


B-2









 






     “Margin Stock” as defined in Regulation U of the Board of Governors of the Federal Reserve
System, as in effect from time to time.



     “Material Adverse Effect” shall mean a material adverse effect on (a) the business,
operations, affairs, financial condition, assets or properties of the Company and its Significant
Subsidiaries, taken as a whole, (b) the ability of the Company to perform its material obligations
under this Agreement and the Notes or (c) the validity or enforceability of this Agreement, the
Guaranty Agreement or the Notes.



     “Notes” is defined in Section 1.1.



     “Officer’s Certificate” shall mean a certificate of a Senior Financial Officer or of any other
officer of the Company or a Guarantor, as applicable, whose responsibilities extend to the subject
matter of such certificate.



     “Organizational Documents” shall mean (i) with respect to any corporation, its certificate or
articles of incorporation, as amended, and its by-laws, as amended, (ii) with respect to any
limited partnership, its certificate of limited partnership, as amended, and its partnership
agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as
amended, and (iv) with respect to any limited liability company, its articles of organization, as
amended, and its operating agreement, as amended. In the event any term or condition of this
Agreement or the Guaranty Agreement requires any Organizational Document to be certified by a
secretary of state or similar governmental official, the reference to any such “Organizational
Document” shall only be to a document of a type customarily certified by such governmental
official.



     “Person” shall mean natural persons, corporations, limited partnerships, general partnerships,
limited liability companies, limited liability partnerships, joint stock companies, joint ventures,
associations, companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and Governmental Authorities.



     “PIK Amount” is defined in Section 1.2.



     “Purchasers” is defined in the preamble to this Agreement.



     “Required Holders” shall mean, at any time, the holders of more than 50% in principal amount
of the Notes at the time outstanding.



     “Responsible Officer” shall mean the Chief Executive Officer of Holdings, the Chief Financial
Officer of Holdings, the General Counsel of Holdings.



     “Securities” shall mean any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.




B-3









 






     “Securities Act” shall mean the Securities Act of 1933, as amended.



     “Senior Financial Officer” shall mean the chief financial officer, principal accounting
officer, director of global finance, treasurer or comptroller of the Company.



     “Senior Secured Facility” shall mean the Amended and Restated Credit and Guaranty Agreement,
dated as of January 16, 2003 (as amended, supplemented or otherwise modified through the date
hereof), by and among XO Communications, LLC (as successor by merger to XO Communications, Inc.),
certain affiliates and subsidiaries of XO Communications, LLC, as guarantors, the lenders party
thereto from time to time and Mizuho Corporate Bank, Ltd., as Administrative Agent.



     “Significant Subsidiary” shall mean a Subsidiary, i.e., a “restricted subsidiary”, that is a
“significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X or is otherwise designated a
Significant Subsidiary by the Company; provided that the relevant percentage of consolidated
revenues, consolidated assets and consolidated net income of the Company and its Subsidiaries which
are measured for purposes of this definition shall be 1%, and not as otherwise specified in such
Rule.



     “Subsequent Closing” is defined in Section 3.



     “Subsidiary” shall mean, with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof; provided, in determining the percentage of ownership interests of
any Person controlled by another Person, no ownership interest in the nature of a “qualifying
share” of the former Person shall be deemed to be outstanding. Notwithstanding the foregoing, for
purposes of Sections 6 and 9, Holdings and V&K Holdings, Inc. shall be deemed to be Subsidiaries.



     “Tax” shall mean any present or future tax, levy, impost, duty, assessment, charge, fee,
deduction or withholding of any nature and whatever called, by whomsoever, on whomsoever and
wherever imposed, levied, collected, withheld or assessed.



B-4









 





Form of Note



This note has not been registered under the Securities Act of 1933, as amended (the “Securities
Act”), or any state securities laws. neither this note nor any interest or participation herein
may be reoffered, sold, assigned, transferred, pledged, encumbered or otherwise disposed of in the
absence of such registration unless such transaction is exempt from, or not subject to, the
registration requirements of the Securities Act. 




XO Communications, LLC




Senior Note due April 15, 2009




			
	No.                    
	 	, 2008
	$                                        	 	 






     For Value Received, the undersigned, XO Communications, LLC (herein called
the “Company”), a limited liability company organized and existing under the laws of the State of
Delaware, hereby promises to pay to
                    ,
or registered assigns, the principal sum of
                    
Dollars on April 15, 2009. Unless interest is paid in cash as provided
below, the unpaid principal amount of the Notes shall bear interest at the rate of 11.5% per annum,
which amounts shall be capitalized and added to the principal amount
of the Notes on April 15, 2008 and quarterly thereafter on July
15, 2008, October 15, 2008, January 15, 2009 and April 15, 2009 without further action on the part
of the Company or any Purchaser (the “PIK Amount”). At the election of the Company and following
approval by a majority of Holdings’ disinterested independent directors, interest on the unpaid
principal amount of the Notes may be paid on a cash basis, in which case such interest shall accrue
from the preceding interest payment date, at the rate of 9.5% per annum, and shall be payable
on April 15, 2008 and quarterly in arrears thereafter on July 15, 2008, October 15, 2008, January 15, 2009 and April 15, 2009. All
computations of interest shall be made on the basis of a 360-day year consisting of twelve 30-day
months. To the extent permitted by law, any overdue payment (including any overdue prepayment) of
principal and any overdue payment of interest shall bear cash interest at the Default Rate, as
defined in the Note Purchase Agreement.



     Payments of principal of and interest on this Note are to be made in lawful money of the
United States of America to the holder hereof at the address set forth in the Note Purchase
Agreement referred to below.



     This Note is one of the Senior Notes due April 15, 2009 (herein called the “Notes”) issued
pursuant to that certain Note Purchase Agreement dated as of March 13, 2008 (as from time to time
amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named
therein and is entitled to the benefits thereof. Each holder of this Note shall be deemed, by its
acceptance hereof, (i) to have agreed to the confidentiality provisions set forth in Section 18 of
the Note Purchase Agreement and (ii) to have made the representations set forth in Section 7 of the
Note Purchase Agreement.



Exhibit 1

(to Note Purchase Agreement)




 









 








     This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender
of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of
transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized
in writing, a new Note for a like principal amount (after giving effect to any accrued interest
added to the principal thereof) shall be issued to, and registered in the name of, the transferee.
Prior to due presentment for registration of transfer, the Company may treat the person in whose
name this Note is registered as the owner hereof for the purpose of receiving payment and for all
other purposes, and the Company shall not be affected by any notice to the contrary.



     This Note is subject to optional prepayment, in whole or in part, at the times and on the
terms specified in the Note Purchase Agreement, but not otherwise.



     If an Event of Default, as defined in the Note Purchase Agreement, occurs and is continuing,
the principal of this Note may be declared or otherwise become due and payable in the manner, at
the price and with the effect provided in the Note Purchase Agreement.



     This Note shall be construed and enforced in accordance with, and the rights of the parties
shall be governed by, the laws of the State of New York without regard to conflict of law
principles (except for New York General Obligations Law Section 5-1401).



	 	 	 	 	 	 	 	 	 
	 	 	XO Communications, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Its	 	 	 	 
	 

	 	 	 	 	 	 	 	 





 









 






XO Communications, LLC 




OFFICER’S CERTIFICATE




          The undersigned does hereby certify that pursuant to Section 4.3(a)(1) of the Note Purchase
Agreement, dated as of March 13, 2008, between XO Communications, LLC (the “Company”) and the
purchasers named therein, relating to the issuance and sale of up to $145,000,000 aggregate
principal amount of its Senior Notes due April 15, 2009 (the “Note Purchase Agreement”):




          1. The Company has performed and complied with all covenants and conditions required by the
Note Purchase Agreement that are required to be performed or complied with by it on or prior to the
Closing.




          2. The conditions set forth in Section 4 of the Note Purchase Agreement have been satisfied as
of the Closing.




          3. The representations and warranties of the Company contained in Section 6 of the Note
Purchase Agreement are true and correct in all material respects as of the Closing.




          Capitalized terms used but not defined herein have the respective meanings given to them in
the Note Purchase Agreement.




[Remainder of this page intentionally left blank.]




Exhibit 4.3(a)(1)

(to Note Purchase Agreement)




 









 








     IN WITNESS WHEREOF, the undersigned have executed this Officer’s Certificate as of the date
first set forth above.



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	Carl J. Grivner 	 
	 	 	Title:  	Manager 	 
	 




 









 








[NAME OF GUARANTOR]




OFFICER’S CERTIFICATE




          The undersigned does hereby certify on behalf of [name of Guarantor] (the “Company”), that
pursuant to Section 4.3(a)(2) of the Note Purchase Agreement, dated as of March 13, 2008, between
XO Communications, LLC and the purchasers named therein, relating to the issuance and sale of up to
$145,000,000 aggregate principal amount of XO Communications, LLC Senior Notes due April 15, 2009
(the “Note Purchase Agreement”):




          1. To the extent applicable, the Company has performed and complied with all agreements and
conditions contained in the Note Purchase Agreement and the Guaranty Agreement that are required to
be performed or complied with by it on or prior to the Closing.




          Capitalized terms used but not defined herein have the respective meanings given to them in
the Note Purchase Agreement.




[Remainder of this page intentionally left blank.]




Exhibit 4.3(a)(2)

(to Note Purchase Agreement)




 









 









     IN WITNESS WHEREOF, the undersigned have executed this Officer’s Certificate as of the date
first set forth above.



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 








XO Communications, LLC




SECRETARY’S CERTIFICATE




          The undersigned, Simone Wu, being the Secretary of XO Communications, LLC, (the “Company”)
hereby certifies on behalf the Company that, pursuant to Section 4.3(b)(1) of the Note Purchase
Agreement, dated as of March 13, 2008, between the Company and the purchasers named therein,
relating to the issuance and sale of up to $145,000,000 aggregate principal amount of its Senior
Notes due April 15, 2009 (the “Note Purchase Agreement”):




          1. Attached hereto as Exhibit A is a true and correct copy of the Company’s Certificate of
Formation, as amended to date (the “Certificate”). Such Certificate is in full force and effect as
of the date hereof, and there are no proceedings currently in process or contemplated to amend such
Certificate.




          2. Attached hereto as Exhibit B is a true and correct copy of the Company’s Certificate of
Merger filed February 28, 2006.




          3. Attached hereto as Exhibit C is a true and correct copy of the Company’s Limited Liability
Company Agreement (the “LLC Agreement”). Such LLC Agreement is in full force and effect as of the
date hereof, and there are no proceedings currently in process or contemplated to amend such LLC
Agreement.




          4. Attached hereto as Exhibit D is a true and correct copy of the resolutions adopted by
Written Consent of the Managing Board in Lieu of Special Meeting approving the Note Purchase
Agreement and the transactions contemplated thereby, and no other resolutions have been adopted
relating to the subject matter thereof by the Managing Board or any committee thereof. Said
resolutions have not been altered, modified, rescinded or amended and are in full force and effect,
and there are no proceedings currently in process or contemplated to amend, annul, rescind, repeal,
revoke or supplement such resolutions.




          5. Attached hereto as Exhibit E are the signature and titles of the [managers][officers of the
sole member] of the Company executing the Note Purchase Agreement or any other related agreement to
be executed and delivered by the Company as or the date hereof.




          6. No action is pending in contemplation of merger, consolidation or liquidation, dissolution
or reorganization of the Company or for the sale, lease or other transfer of all or substantially
all of its assets.




          7. Each manager who signed the Note Purchase Agreement was duly elected or appointed.




Exhibit 4.3(b)(1)

(to Note Purchase Agreement)




 









 









     IN WITNESS WHEREOF, I have set my hand hereto as of the date first set forth above.



	 	 	 	 	 
	 

	 	 

Simone Wu
	 	 
	 

	 	Secretary	 	 
	 
	 






     I, Carl J. Grivner, Manager of the Company, hereby certify that [Simone Wu] is the duly
elected, qualified and acting Secretary of the Company, and that the signature appearing above is
[her] genuine signature.



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Carl J. Grivner 	 
	 	 	Manager 	 
	 




 









 








[NAME OF GUARANTOR]




SECRETARY’S CERTIFICATE




          The undersigned, [                    ], being the Secretary of [name of Guarantor], (the “Company”)
hereby certifies on behalf the Company that, pursuant to Section 4.3(b)(2) of the Note Purchase
Agreement, dated as of March 13, 2008, between the XO Communications, LLC and the purchasers named
therein, relating to the issuance and sale of up to $145,000,000 aggregate principal amount of XO
Communications, LLC Senior Notes due April 15, 2009 (the “Note Purchase Agreement”):




          1. Attached hereto as Exhibit A is a true and correct copy of the Company’s Certificate of
[Incorporation][Formation], as amended to date (the “Certificate”). Such Certificate is in full
force and effect as of the date hereof, and there are no proceedings currently in process or
contemplated to amend such Certificate.




          2. Attached hereto as Exhibit B is a true and correct copy of the Company’s [Bylaws][Limited
Liability Company Agreement] (the “[Bylaws][LLC Agreement]”). Such [Bylaws] [LLC Agreement]
[are][is] in full force and effect as of the date hereof, and there are no proceedings currently in
process or contemplated to amend such [Bylaws] [LLC Agreement].




          3. Attached hereto as Exhibit C is a true and correct copy of the resolutions adopted by
Written Consent of the [Managing Board][Board of Directors] in Lieu of Special Meeting approving
the Guaranty Agreement and the transactions contemplated thereby, and no other resolutions have
been adopted relating to the subject matter thereof by the [Managing Board][Board of Directors] or
any committee thereof. Said resolutions have not been altered, modified, rescinded or amended and
are in full force and effect, and there are no proceedings currently in process or contemplated to
amend, annul, rescind, repeal, revoke or supplement such resolutions.




          4. Attached hereto as Exhibit D are the signature and titles of the [managers][officers] of
the Company executing the Guaranty Agreement or any other related agreement to be executed and
delivered by the Company as or the date hereof.




          5. No action is pending in contemplation of merger, consolidation or liquidation, dissolution
or reorganization of the Company or for the sale, lease or other transfer of all or substantially
all of its assets.




          6. Each [manager][officer] who signed the Guaranty Agreement or any related agreements was
duly elected or appointed.




Exhibit 4.3(b)(2)

(to Note Purchase Agreement)




 









 









     IN WITNESS WHEREOF, I have set my hand hereto as of the date first set forth above.



	 	 	 	 	 
	 

	 	 

[                    ]
	 	 
	 

	 	Secretary	 	 
	 
	 






     I, [                    ], [Chief Executive Officer] of the Company, hereby certify that
[                    ] is the duly elected, qualified and acting Secretary of the Company, and
that the signature appearing above is [her][his] genuine signature.



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	[                    ] 	 
	 	 	[Chief Executive Officer] 	 
	 




 









 








FORM OF OPINION OF SPECIAL COUNSEL

TO THE COMPANY AND THE GUARANTORS





     The closing opinion of Pillsbury Winthrop Shaw Pittman LLP, special counsel for the Company
which is called for by Section 4.5 of the Agreement, shall be dated the date of the Closing and
addressed to each Purchaser, shall be reasonably satisfactory in scope and form to each Purchaser
and shall be to the effect that:



          1. The Company is a limited liability company, duly organized, validly existing and in good
standing under the laws of the State of Delaware, has the limited liability company power and
authority to execute and perform the Agreement and to issue each Note and has the full limited
liability company power and authority to conduct the activities in which it is now engaged.




          2. The Agreement has been duly authorized by all necessary limited liability company action on
the part of the Company, has been duly executed and delivered by the Company and constitutes the
legal, valid and binding contract of the Company enforceable in accordance with its terms.




          3. Each Note has been duly authorized by all necessary limited liability company action on the
part of the Company, has been duly executed and delivered by the Company and will, upon
disbursement of the loan evidenced by such Note, constitute the legal, valid and binding obligation
of the Company, in each case enforceable against the Company in accordance with its terms.




          4. The issuance and sale of the Notes and the execution, delivery and performance by the
Company of the Agreement do not conflict with or result in any breach of any of the provisions of
or constitute a default under or result in the creation or imposition of any Lien upon any of the
property of the Company pursuant to (i) the provisions of the organizational documents of the
Company, (ii) the Senior Secured Facility or (iii) generally applicable New York law (as defined in
such opinion letter, but with specific exclusion of federal and state telecommunications laws).




          5. The issuance, sale and delivery of each Note under the circumstances contemplated by the
Agreement does not, under existing law, require the registration of such Note under the Securities
Act or the qualification of an indenture under the Trust Indenture Act of 1939, as amended.




          6. The Company is not an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended.




          7. The issuance of the Notes and the use of the proceeds of the sale of the Notes in
accordance with the provisions of and contemplated by the Agreement do not violate Regulation T, U
or X of the Board of Governors of the Federal Reserve System.




     The closing opinion will contain customary qualifications and assumptions, including, but not
limited to, applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and other
similar laws affecting creditors’ rights generally. Pillsbury Winthrop Shaw Pittman LLP



Exhibit 4.5

(to Note Purchase Agreement)




 









 







will also be relying on the closing opinion of Kelley Drye & Warren LLP, special counsel for
the Company and the Guarantors, to the extent such reliance is required or necessary.




**********




     The closing opinion of Morrison & Foerster LLP, which is called for by Section 4.5 of the
Agreement, shall be dated the date of the Closing and addressed to each Purchaser, shall be
reasonably satisfactory in scope and form to each Purchaser and shall be to the effect that:



          1. Each Corporate Guarantor is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is duly qualified and in good standing in the
states listed opposite its name in the exhibit hereto. The LLC Guarantor is a limited liability
company duly formed, existing and in good standing under the laws of the State of Delaware, and is
in good standing and registered to do business in the states listed opposite its name in the
exhibit hereto.




          2. Each Corporate Guarantor has the corporate power and authority to execute and deliver, and
to perform and observe the provisions of, the Guaranty Agreement. The LLC Guarantor has the
requisite power and authority as a limited liability company to execute and deliver, and to perform
and observe the provisions of, the Guaranty Agreement.




          3. The Guaranty Agreement has been duly authorized by each of the Guarantors, and the Guaranty
Agreement have been duly executed and delivered by each such Guarantor. The Guaranty Agreement
constitutes the valid and binding obligation of each of the Guarantors, enforceable against each
such Guarantors in accordance with its terms.




          4. The execution, delivery and performance of the Guaranty Agreement by the Corporate
Guarantors are not in violation of their respective Certificates of Incorporation and Bylaws. The
execution, delivery and performance of the Guaranty Agreement by the LLC Guarantor is not in
violation of its Certificate of Formation and Limited Liability Company Agreement.




          5. The execution, delivery and performance of the Guaranty Agreement by each of the Guarantors
will not violate or result in a breach of any of the terms of or constitute a default under or
(except as contemplated in the Guaranty Agreement) result in the creation of any lien, charge or
encumbrance on any property or assets of any Guarantor, pursuant to the terms of any indenture,
mortgage, deed of trust or other material agreement or order described in the Officer’s
Certificates.




          6. None of the Guarantors is, as of the date hereof, required to be registered as an
investment company under the Investment Company Act of 1940, as amended.




     The closing opinion will contain customary qualifications and assumptions, including, but not
limited to, applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and other
similar laws affecting creditors’ rights generally. Morrison & Foerster LLP will also be relying
on the closing opinion of Kelley Drye & Warren LLP, special counsel for the Company and the
Guarantors, to the extent such reliance is required or necessary.



**********




 









 








     The closing opinion of Kelley Drye & Warren LLP, which is called for by Section 4.5 of the
Agreement, shall be dated the date of the Closing and Subsequent Closing and addressed to each
Purchaser, shall be reasonably satisfactory in scope and form to each Purchaser and shall be to the
effect that:



          1. The XO Parties hold all necessary authorizations from the FCC to provide the international
and interstate telecommunications services that, to our knowledge, the XO Parties currently are
providing. No approval, consent or withholding of objection on the part of, or filing,
registration or qualification with, the FCC is necessary in connection with the execution, delivery
or performance (a) by the Company of the Note Agreement or the Notes or (b) by any XO Party of the
Guaranty Agreement.




          2. Attachment 1 to Schedule A appended hereto lists all of the states in which, to our
knowledge, any XO Party is authorized to provide intrastate telecommunications services. No
approval, consent or withholding of objection on the part of, or filing, registration or
qualification with, any State Commission is necessary in connection with the execution, delivery or
performance (a) by the Company of the Note Agreement or the Notes or (b) by any XO Party of the
Guaranty Agreement, except for those approvals, consents or filings which, if not obtained, would
not have a material adverse effect on any of the following: (a) the properties, business, results
of operations, conditions (financial or otherwise), stockholders’ equity, properties and prospects
of the XO Parties, taken as a whole, (b) the issuance of Notes as described in the Note Agreement
or (c) the grant of the Guaranty (any of the foregoing, a “Material Adverse Effect”).




          3. The issuance and sale of the Notes and the execution, delivery and performance by the
Company of the Note Agreement do not conflict with any law, rule or regulation of the FCC or any
State Commission, except for those conflicts which would not have a Material Adverse Effect.




          4. The execution, delivery and performance by the XO Parties of the Guaranty Agreement do not
conflict with any law, rule or regulation of the FCC or any State Commission, except for those
conflicts which would not have a Material Adverse Effect.