exv10w3






EXECUTION VERSION




Exhibit 10.3




TAX ALLOCATION AGREEMENT




     Agreement as of July 25, 2008 by and among Starfire Holding Corporation (“Parent”), a Delaware
corporation, having offices at 767 Fifth Avenue, New York and XO Holdings, Inc., a Delaware
corporation (“XO”), having offices at 13865 Sunrise Valley Drive, Herndon Virginia, 20171 and the
XO Subsidiaries (as defined below).



     WHEREAS, Parent is the common parent of an affiliated group (as such term is defined in the
Internal Revenue Code of 1986, as amended, or any succeeding law (the “Code”)) of corporations for
federal income tax purposes:



     WHEREAS, Parent and its subsidiaries have been filing consolidated federal income tax returns
(“Consolidated Federal Returns”) and will continue to file Consolidated Federal Returns;



     WHEREAS, XO and its subsidiaries joined the Consolidated Group (as defined below) in filing
Consolidated Federal Returns for the Prior Consolidation Period (as defined below);



     WHEREAS, during the Prior Benefit Period (as defined below), the Consolidated Group utilized a
Prior Consolidation Tax Benefit (as defined below);



     WHEREAS, it is contemplated that the XO Group will continue to file separate state or local
income or franchise tax returns unless Parent elects, or is required by law, to file such returns
on a consolidated or combined basis with the XO Group (“Consolidated State Returns”);



     WHEREAS, XO has minority shareholders and third-party lenders; and



     WHEREAS, Parent and XO believe it is desirable to provide for the allocation and payment of
federal and state income tax liabilities and certain related matters.



     NOW, THEREFORE, in consideration of the foregoing and of the covenants set forth below, the
parties hereto have agreed as follows:



1. Definitions.




     (i) “XO Group” means XO together with the XO Subsidiaries. “XO Subsidiaries” means all direct
and indirect subsidiaries of XO that are eligible to be included in a Consolidated Return (as
defined below) with XO.



     (ii) “Consolidated Returns” mean all Consolidated Federal Returns and Consolidated State
Returns.



     (iii) “Federal Income Taxes” means any income tax imposed under the Code including, without
limitation, the corporate income tax, the minimum tax imposed on corporations, and the personal
holding company tax.



     (iv) “State Income Taxes” means any income or franchise tax imposed under the tax law of any
state (or political subdivision thereof) including, without limitation, corporate income taxes and
minimum taxes.



 









 





     (v) “Net Operating Loss” means the amount of any net operating loss as defined in the Code or
under the tax law of any state.



     (vi) “Net Capital Loss” means the amount of any net capital loss as defined in the Code or
under the tax law of any state.



     (vii) “Credit” means the amount of any tax credit allowed under the Code or under the tax law
of any state including, without limitation, investment tax credits ad foreign tax credits.



     (viii) The “Regulations” means the federal income tax regulations and proposed federal income
tax regulations issued by the Secretary of the Treasury interpreting the Code and state and local
income tax regulations and rules issued by applicable state and local administrative authorities.



     (ix) The “Consolidated Group” means the affiliated group (as defined in the Code) of which
Parent (or its successor) is the common parent, for so long as such affiliated group files a
Consolidated Return.



     (x) “Tax Benefits” as to any entity (or group of entities) means the Net Operating Losses, Net
Capital Losses, and Credits generated by or available to such entity (or group of entities) and any
carryforwards thereof.



     (xi) “Final Determination” shall mean the final resolution of liability for any Tax for a
taxable period, (i) by IRS Form 870 or 870-AD (or any successor form thereto), on the date of the
final acceptance by or on behalf of a party thereto and XO’s approval (which shall not be
unreasonably withheld) in the case of a challenge of any XO Tax Benefit, or by a comparable form
under the laws of another jurisdiction; except that a Form 870 or 870-AD or comparable form that
reserves (whether by its terms or by operation of law) the right of the taxpayer to file a claim
for refund and/or the right of taxing authority to assert a further deficiency shall not constitute
a Final Determination; (ii) by a decision, judgment, decree, or other order by a court of competent
jurisdiction, which has become final and unappealable; (iii) by a closing agreement or accepted
offer in compromise under Section 7121 or 7122 of the Code, or comparable agreement under the laws
of another jurisdiction with such agreement or acceptance being approved by XO (which approval
shall not be unreasonably withheld) in the case of any matter relating to an XO Tax Benefit; (iv)
by any allowance of a refund or credit in respect of an overpayment of Tax, but only after the
expiration of all periods during which such refund may be recovered (including by way of offset) by
the Tax imposing jurisdiction; or (v) by any other final disposition, including by reason of the
expiration of the applicable statute of limitations or by mutual agreement of the parties.



     (xii) “Current Consolidation Tax Benefits” means any Tax Benefit for which Parent is obligated
to make a payment to XO under Section 4(d).



     (xiii) “Excess XO Tax Benefits” means any Tax Benefit of the XO Group (determined as if the XO
Group had always filed separate Consolidated Returns with respect to the XO Group) that reduces the
liability of the Consolidated Group for Federal Income Taxes or Consolidated State Income Taxes for
any taxable year ending after the date hereof in excess of



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the Section 4(d) Amount. For avoidance
of doubt, the Excess XO Tax Benefits shall be calculated by not taking into account the Prior
Consolidation Tax Benefit.



     (xiv) “Previously Reimbursed XO Tax Benefit” means any Tax Benefit of the XO Group for which
Parent has previously made a payment to XO under Section 4(d) hereof.



     (xv) “Prior Benefit Period” means the period beginning with the beginning of the Prior
Consolidation Period and ending December 31, 2004.



     (xvi) “Prior Consolidation Period” means the period beginning January 16, 2003 until January
16, 2004.



     (xvii) “Prior Consolidation Tax Benefit” means the Tax Benefit of the XO Group (determined as
if the XO Group had filed a separate Consolidated Return with respect to the XO Group for each year
taxable year during the Prior Consolidation Period) that reduced the tax liability of the
Consolidated Group during the Prior Benefit Period as reflected on the Consolidated Return filed by
the Consolidated Group as adjusted by any Final Determination (but only to the extent that the
utilization of such adjustment resulted in a reduction of the tax liability of the Consolidated
Group).



     (xviii) “Section 4(d) Amount” shall have the meaning set forth in Section 4(d) hereof.



2. Joinder in Consolidated Returns.




     (a) XO hereby agrees and consents (i) to join with the Consolidated Group in the filing of
Consolidated Returns with respect to any fiscal year in which Parent elects to file such returns,
(ii) to use its best efforts to cause each of the XO Subsidiaries to consent to the filing of
Consolidated Returns for such years, (iii) to furnish to Parent all information relating to members
of the XO Group as may be necessary or appropriate for the preparation of Consolidated Returns,
(iv) to execute and deliver to Parent, and use its best efforts to cause the XO Subsidiaries to
execute and deliver to Parent, all consents, directors’ resolutions and other documentation which
Parent may reasonably require to evidence Parent’s authority to file Consolidated Returns, and (v)
to maintain the same fiscal year as Parent and use its best efforts to cause the XO Subsidiaries to
maintain the same fiscal year as Parent for all periods in which Parent and XO are members of an
affiliated group (as defined in the Code); provided, however, the foregoing shall not be
interpreted to prevent XO from issuing additional stock pursuant to strategic transactions,
corporate acquisitions, debt conversions and settlements, warrants, options or rights to subscribe
to its stock, or for other corporate purposes, which would cause the XO Group to not be a part of
the Consolidated Group.



     (b) Parent hereby consents to join with the Consolidated Group in the Filing of Consolidated
Returns; provided, however, that Parent is not precluded from taking any action which would require
Parent to discontinue the filing of Consolidated Returns including, without limitation, a sale or
other disposition of all or a portion of its stock ownership in XO and/or the
filing of an application with the Commissioner of Internal Revenue, or other appropriate
authorities, including tax authorities of any state (or political subdivision thereof) (“Taxing
Authorities”) on behalf of the Consolidated Group, requesting permission to discontinue the filing
of Consolidated Returns.



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     (c) Parent shall prepare and file Consolidated Returns on behalf of the Consolidated Group and
may charge XO and the XO Subsidiaries an appropriate amount for XO’s share of reasonable
out-of-pocket expenses related to the preparation of such returns. Parent shall make all decisions
regarding any elections or other matters relating to the preparation and filing of Consolidated
Returns; provided, however, that in making elections and other decisions with respect to members of
the XO Group, Parent shall consult with the XO Group and in good faith consider their
recommendations regarding the possibility of making such elections in a manner as to maximize the
Tax Benefits that would be available to the XO Group.



     (d) XO will promptly pay to Parent an appropriate amount for all reasonable out-of-pocket
expenses (including legal and accounting expenses) incurred by Parent in connection with any
administrative or judicial proceedings with respect to such Consolidated Returns to the extent that
such proceedings are reasonably allocable to the XO Group; provided however that XO will not be
responsible for the payment of any such expenses to the extent they are allocable to Parent’s
utilization of Prior Consolidation Tax Benefits or other of XO’s Tax Benefits unless Parent has
made a payment to XO for the use of such Tax Benefits under Section 4(d).



3. Payment of Tax and Refunds.




     Subject to the provisions of this Agreement and compliance with the terms hereof, Parent shall
be obligated to and shall make all payments and be entitled to all refunds of Federal Income Taxes
and estimated Federal Income Taxes on behalf of any and all members of the Consolidated Group, and
shall indemnify and hold the members of the XO Group harmless against all such Taxes (including
penalties and interest). Further, subject to the provisions of this Agreement and compliance with
the terms hereof, whenever Parent elects, or is required by law, to file state or local income or
franchise tax returns on a consolidated or combined basis, Parent shall be obligated to and shall
make all payments and be entitled to all refunds of such State Income Taxes and estimated State
Income Taxes (such actual and estimated State Income Taxes are referred to herein as “Consolidated
State Income Taxes”) on behalf of all members of the Consolidated Group, and shall indemnify and
hold the members of the XO Group harmless against all such Taxes (including penalties and
interest). Subject to the provisions of Section 5(a) of this Agreement, (and to the extent not
indemnified pursuant to the two immediately preceding sentences) for all periods on or after the
date hereof, including periods after a Deconsolidation Event, Parent shall indemnify and hold XO
and the other members of the XO Group harmless against all Federal Income Taxes, Consolidated State
Income Taxes, and State Income Taxes and local income taxes payable by or with respect to any
member of the Consolidated Group other than the members of the XO Group, including any interest and
penalties with respect thereto and reasonable out-of-pocket expenses (including legal and
accounting expenses) incurred by the XO Group in connection with an administrative or judicial
proceeding initiated by a governmental authority relating to any such tax.



4. Payments.




     (a) XO shall pay to Parent, for any taxable year ending after the date hereof during which XO
is included in a Consolidated Return with the Consolidated Group, an amount equal to the amount of
Federal Income Taxes and Consolidated State Income Taxes that the XO Group



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would have been required
to pay to the Taxing Authorities if it were never part of the Consolidated Group and if the XO
Group had filed separate Consolidated Returns for federal, state and/or local tax purposes, as the
case may be, with respect to the XO Group (the “XO Group Taxes”). The above calculation shall give
effect to any federal, state or local Net Operating Loss, Net Capital Loss and Credit carryforwards
which would have been available to the XO Group if it had never been included in a Consolidated
Return with the Consolidated Group (including, but not limited to, any Prior Consolidation Tax
Benefit, but excluding any Previously Reimbursed XO Tax Benefit), but such calculation shall be
subject to any Final Determination affecting computation of any item included in such calculation
and any limitations on the utilization of tax attributes (including, without limitation, such
carryforwards and any limitations on the utilization of depreciation, amortization or other similar
deductions) of the XO Group imposed by law.



     (b) XO shall pay to Parent any amount (including amounts in respect of estimated tax) that
would be due on the basis of the foregoing calculations within three business days after Parent
notifies XO of the calculated amount, but in no event earlier than the times such payments are, or
would be required, to be made to the applicable Taxing Authorities. The excess of any amounts paid
to Parent, with respect to estimated tax payments under this Section 4(b) for a taxable year, over
the liability of the XO Group to Parent under this Section 4(b) for such year, shall be refunded by
Parent to XO within three business days after Parent notifies XO of the calculated amount of tax
due for such year. At XO’s election, such refund may be applied as a credit against any future
estimated tax of the XO Group.



     (c) XO shall indemnify and hold Parent harmless against any liability for any interest and
penalties with respect thereto imposed upon Parent by reason of any false or fraudulent information
supplied by any member of the XO Group to Parent in connection with the determination of the
federal, state, or local income tax liability payable by any member of the Consolidated Group.



     (d) If, for any taxable year ending after the date hereof during which XO is included in a
Consolidated Return with the Consolidated Group, (i) the XO Group would have had a Tax Benefit had
it filed separate Consolidated Returns for federal, state and/or local tax purposes, as the case
may be, with respect to the XO Group instead of joining the Consolidated Group (including, without
limitation, any carryover of a Tax Benefit from a year when XO did not join in the filing of a
Consolidated Return), and (ii) such Tax Benefit reduces the liability of the Consolidated Group for
Federal Income Taxes or Consolidated State Income Taxes (with such reduction in liability being
measured as the excess, if any, of (x) such liability computed as though the XO Group had never
been included in a Consolidated Return with the Consolidated Group over (y) such liability), then,
subject to the succeeding sentence, Parent shall pay to XO an amount equal to 30% of the amount of
such reduction within 30 days after the filing of such Consolidated Return; provided that such
calculation shall be subject to any Final Determination affecting computation of any item included
in such calculation and any limitations on the
utilization of tax attributes (including, without limitation, such carryforwards and any
limitations on the utilization of depreciation, amortization or other similar deductions) of the XO
Group imposed by law. Notwithstanding the foregoing, aggregate payments pursuant to the preceding
sentence shall be required only with respect to the first $900,000,000 of Tax Benefits that reduce
the liability of the Consolidated Group for Federal Income Taxes or Consolidated State Income



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Taxes
(the “Section 4(d) Amount”). It is intended that payments under this Section 4(d) shall be
characterized for tax purposes as contributions to capital by Parent to XO, and the parties shall
not take any position inconsistent with such characterization. Notwithstanding the foregoing, this
Section 4(d) shall not obligate Parent to make any payment on account of any Prior Consolidation
Tax Benefit or any Excess XO Tax Benefits; payments on account of Prior Consolidation Tax Benefits
and Excess XO Tax Benefits shall instead be governed by Section 6.



5. Adjustments During Consolidation.




     (a) In the event of a Final Determination with respect to the tax liability of the
Consolidated Group, appropriate adjustments (including, without limitation, adjustments to XO’s
payment obligation under Section 4(a) and to Parent’s payment obligations under Section 4(d))
shall, except as inconsistent with this Agreement, be made hereunder consistent with such Final
Determination. Further, XO shall pay to Parent any interest, penalties and additions to tax imposed
in connection with a Final Determination to the extent that such amounts are attributable to items
of XO or its subsidiaries. Similarly, Parent shall pay XO any interest received from a governmental
authority in connection with a Final Determination that there has been an overpayment, together
with the amount of any refund received, to the extent attributable to items of XO or its
subsidiaries.



     (b) Payments under this Section 5 shall be made promptly after the amounts thereof are
determined. For purposes of this Agreement, any Net Operating Loss, Net Capital Loss, or Credit
shall be carried forward.



6. Adjustments After Deconsolidation For Prior Consolidation Tax Benefits.




     (a) If there is a change in the ownership of the stock of XO or other event (a
“Deconsolidation Event”) and XO ceases to join in the filing of Consolidated Federal Returns and
where applicable, Consolidated State Returns with Parent, and any member of the XO Group would have
been entitled, if XO had never joined in the filing of such Consolidated Returns, to carry forward
to a taxable year (“Post-Consolidation Year”) which is not a taxable year for which XO joined in
the filing of such Consolidated Returns, a Prior Consolidation Tax Benefit or Excess XO Tax Benefit
(“Non-Available XO Carryforward Items”), then no later than April 15 following each
Post-Consolidation Year, Parent shall be obligated to pay to XO an amount equal to the excess of
(i) the XO Group’s actual Federal Income Taxes and, where applicable, actual State Income Taxes for
such Post-Consolidation Year over (ii) such Federal Income Taxes and, where applicable, State
Income Taxes for such Post-Consolidation Year computed as if such Non-Available XO Carryforward
Items were available to the XO Group. The calculation in Section 6(a)(ii) above shall be subject to
any audit adjustments and any limitations on the utilization of the Non-Available XO Carryforward
Items imposed by law (including, without limitation, any such limitation imposed or which would
have been imposed as a result of the Deconsolidation Event). It is intended that payments under
this Section 6(a) shall be
characterized for tax purposes as contributions to capital by Parent to XO, and the parties
shall not take any position inconsistent with such characterization.



     (b) Parent shall not be required to make payments to XO under Section 6(a) to the extent that
such payments would cause cumulative payments made by Parent to XO under



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Section 6(a) to exceed the
cumulative reductions in Federal Income Taxes and, where applicable, Consolidated State Income
Taxes, of the Consolidated Group which resulted from the inclusion of the XO Group in the
Consolidated Group during the Prior Benefit Period or from the Consolidated Group’s use of Excess
XO Tax Benefits. Such cumulative reductions shall be determined (i) by deeming the reduction in
State Income Taxes (if any) to be reduced by any corresponding increase in Federal Income Taxes;
(ii) without any adjustment for an increase or reduction in Federal Income Taxes (and, where
applicable, Consolidated State Income Taxes) resulting from the Deconsolidation Event; and (iii) by
apportioning the reduction in Federal Income Taxes and, where applicable, Consolidated State Income
Taxes, resulting from the use of Tax Benefits of members of the XO Group and non-members in
accordance with the principles of the federal income tax consolidated return regulations (and
similar provisions of applicable state tax law) that determine the Tax Benefits that would be
attributed to a member in the event such member ceases to be a member of the consolidated group.



7. Certain Transactions.




     Notwithstanding anything in this Agreement to the contrary, in the event of the occurrence of
any transaction the result of which is that there are no longer any holders (other than Parent and
its Affiliates or any other single person or “group” as such term is used in Rule 13D under the
Securities Exchange Act of 1934) of equity securities of XO, all of Parent’s payment obligations
under this Agreement shall terminate immediately prior to the transaction and for purposes of
Section 4(a) of this Agreement, the computation of the XO Group Taxes shall not give effect to any
Net Operating Loss, Net Capital Loss or Credits carryforwards referred to in the second sentence
thereof. For the purpose of determining holders of equity securities pursuant to this Section 7,
neither (x) warrantholders who have no right to receive equity securities of XO on exercise thereof
nor (y) the holders of equity securities of the acquiring company, shall be considered holders of
equity securities.



8. Late Filing.




     Notwithstanding any other provisions of this agreement, Parent shall indemnify and hold
harmless the XO Group against any interest or penalties incurred by reason of late filing of any
Consolidated Return for the Consolidated Group, or by reason of late payment of any tax or
estimated tax for the Consolidated Group, unless such late filing or late payment is due to the
fault of XO or any other member of the XO Group.



9. State Taxes.




     XO and each of the XO Subsidiaries shall continue to prepare and file all applicable state tax
returns, at their own expense, and to pay, or cause its subsidiaries to so prepare, file and pay,
all amounts shown to be due thereunder unless Parent elects to have XO and/or members of the XO
Group file state and/or local tax returns on a consolidated or combined basis with Parent.



10. Accounting.




     (a) For the purpose of the computation of assumed tax liabilities herein, all payments made
(i) by Parent to XO and (ii) by XO to Parent, pursuant to the provisions thereof shall not be
considered income to the recipient of the payment or an expense of the payor, but rather shall be



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considered the payment of a tax. Any difference between a Consolidated Group member’s tax liability
under this Agreement and such member’s liability under Treasury Regulation Sections 1.1502-33 and
1.1552-1 shall be treated as a distribution with respect to its stock or as a contribution to its
capital, as the case may be.



     (b) The calculation of the amounts hereunder shall be determined by Parent; provided, however,
that if XO disputes such determination, a mutually acceptable nationally recognized accounting firm
shall determine such amounts.



11. Parties.




     Any corporation which is an XO Subsidiary on the date hereof or which becomes an XO Subsidiary
at any time subsequent to such date shall automatically be subject to the terms and conditions of
this Agreement. If any entity other than Parent shall become the common parent of the affiliated
group of corporations for federal income tax purposes which includes members of the XO, Parent
shall cause such entity to enter into an agreement substantially identical to this Agreement with
XO.



12. Notices.




     All notices, requests, consents and other communications hereunder shall be in writing and
shall be deemed to have been duly and properly given or sent (a) on the date when such notice,
request, consent or other communication is personally delivered with receipt acknowledged, or (b)
if mailed, three days after the date on which the same is deposited in a post office box and sent
by certified or registered mail, return receipt requested, postage prepared and addressed to the
party for whom intended at its address set forth below or to such other address or addresses as any
of the parties hereto shall theretofore designated by notice hereunder.


If to Parent, at:

Starfire Holding Corporation

767 Fifth Avenue

New York, New York 10153



If to XO or the XO Subsidiaries, at:

XO Holdings, Inc.

13865 Sunrise Valley Drive,

Herndon, Virginia 20171




13. Entire Agreement.




     This agreement (a) contains the entire understanding of the parties hereto with respect to the
subject matter hereof, (b) shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and performed therein, and (c) shall be
binding upon and inure to the benefit of the parties hereto and their respective successors
and assigns.



     This agreement supersedes all other agreements, whether or not written, in respect of any tax
between or among any member or members of the Consolidated Group, on the one hand, and



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any member
or members of the XO Group, on the other hand. All such other agreements, including, but not
limited to, that certain Tax Allocation Agreement by and among Parent and XO Communications, Inc.,
dated January 16, 2003, are hereby canceled and any rights or obligations existing thereunder are
hereby fully and finally settled by entry into this Agreement without any payment by any party
thereto.



14. Amendments.




     This Agreement may not be modified, changed or amended except by a writing signed by all
parties hereto.



15. Further Assurances.




     Each of the parties hereto agrees to execute, acknowledge, deliver, file, record and publish
such further certificates, instruments, agreements and other documents, and to take all such
further actions as may be required by law or deemed necessary or useful in furtherance of the
objectives and intentions underlying this Agreement and not inconsistent with the terms hereof.



16. Captions.




     Captions are inserted for convenience only and shall not be given any legal effect.



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     IN WITNESS WHEREOF, the parties have executed this Agreement as of July 25, 2008.



	 	 	 	 	 
	 	STARFIRE HOLDING CORPORATION

 	 
	 	By:  	/s/ Keith Cozza
 	 
	 	 	Name:  	Keith Cozza 	 
	 	 	Title:  	Treasurer 	 
	 



	 	 	 	 	 
	 	XO HOLDINGS, INC.

 	 
	 	By:  	/s/ Carl J. Grivner
 	 
	 	 	Name:  	Carl J. Grivner 	 
	 	 	Title:  	Chief Executive Officer 	 
	 




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