Attached files
| file | filename |
|---|---|
| 8-K - XO HOLDINGS INC | v198684_8k.htm |
| EX-99.1 - XO HOLDINGS INC | v198684_ex99-1.htm |
EXECUTION
VERSION
GUARANTY
For good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the undersigned (the “Guarantors”) jointly,
severally and unconditionally guarantee, in accordance with the terms hereof and
without any prior written notice, the full and punctual payment and performance
of all of the Liabilities (as defined herein) when due (the “Guaranty”), whether
required by acceleration or otherwise of XO COMMUNICATIONS, LLC, a Delaware
limited liability company (the “Company”), to the
Lender (as defined herein) pursuant to that certain US$50,000,000 Revolving
Promissory Note issued by the Company in favor of the Lender as of October 8,
2010 (the “Note”). This
Guaranty is an absolute, unconditional and continuing guaranty of the full and
punctual payment as well as performance of all of the Liabilities whether now
outstanding or arising in the future. Should the Company default in
the payment or performance of any of the Liabilities, the obligations of the
Guarantors hereunder with respect to the Liabilities in default shall, upon
demand by the Lender, become immediately due and payable, without further demand
or notice of any nature from the Lender, all of which are expressly waived by
the Guarantors. Payments by the Guarantors hereunder may be required
by the Lender on any number of occasions. Capitalized terms used
herein but not defined shall have the same meanings ascribed to them in the
Note.
The
Guarantors have agreed to execute and deliver each provision of this Guaranty
jointly and severally in order to induce the Lender on the date hereof to
countersign the Note and thereby agree to advance funds to the Company from time
to time pursuant thereto. Borrowings by the Company under the Note
confers a substantial direct benefit on the Guarantors. The
Guarantors hereby acknowledge and agree that the foregoing constitutes full and
fair consideration and reasonably equivalent value for the obligations,
covenants and agreements of the Guarantors hereunder.
“Lender” shall have
the meaning assigned to such term in the Note.
“Liabilities” shall
mean all payments due under the Note, including without limitation in respect of
the indemnification obligations under Section 10 of the Note, the Costs of
Company Collection and the Costs of Guarantors Collection.
“Costs of Company
Collection” shall mean all costs and expenses of the Lender incurred in
connection with enforcement or collection under the Note in accordance with
Section 10 thereof, including, without limitation, reasonable attorneys’ fees,
expenses and disbursements.
“Costs of Guarantors
Collection” shall mean all costs and expenses of the Lender incurred in
connection with enforcement or collection under this Guaranty, including,
without limitation, reasonable attorneys’ fees, expenses and
disbursements.
The
Guarantors will pay on demand interest on all amounts due to the Lender under
this Guaranty from the time the Lender first demands payment of this Guaranty,
at a rate equal to the highest rate chargeable to the Company under the Note as
of such time.
The
obligations of the Guarantors hereunder shall not be affected by any fraudulent,
illegal, or improper act by the Company, nor by any release, discharge, or
invalidation, by operation of law or otherwise, of the Liabilities, or by the
legal incapacity of the Company, or any other person or entity liable or
obligated to the Lender for or on the Liabilities. Interest and Costs
of Company Collection shall continue to accrue and shall continue to be
guarantied hereby notwithstanding any stay to the enforcement thereof against
the Company or disallowance of any claim therefor against the
Company. If for any reason the Company has no legal existence or is
under no legal obligation to discharge any of the Liabilities, or if any of the
Liabilities have become irrecoverable from the Company by reason of the
Company’s insolvency, bankruptcy, reorganization or by other operation of law or
for any other reason, this Guaranty shall nevertheless be binding on the
Guarantors as if the Guarantors had at all times been the principal obligor on
the Liabilities. The obligations of the Guarantors hereunder shall
remain in effect in the event that acceleration of the time for payment of any
of the Liabilities is stayed upon the insolvency, bankruptcy or reorganization
of the Company, or for any other reason, and all such amounts otherwise subject
to acceleration under the terms of any agreement or instrument evidencing or
otherwise executed in connection with the Liabilities shall be immediately due
and payable by the Guarantors. The amount payable by any Guarantor
under this Guaranty shall not exceed the maximum amount that could then be
claimed under this Guaranty without rendering such claim voidable or avoidable
under Section 548 of Chapter 11 of the United States Bankruptcy Code (11 U.S.C.
§ 101 et. seq.) or under any applicable state Uniform Fraudulent Transfer Act,
Uniform Fraudulent Conveyance Act or similar statute or common law.
This
Guaranty incorporates all discussions and negotiations between the Guarantors
and the Lender concerning the guaranty provided by the Guarantors
hereby. No such discussions or negotiations shall limit, modify, or
otherwise affect the provisions hereof. No provision hereof may be
altered, amended, waived, cancelled or modified, except by a written instrument
executed by the Lender and each Guarantor.
The
Guarantors waive promptness, diligences, presentment, demand, notice (other than
pursuant to the first paragraph hereof) and protest with respect to the
Liabilities or this Guaranty, and further waive any delay on the part of the
Lender, and further waive notice of acceptance of this Guaranty, notice of any
Liabilities incurred and all other notices of any kind, all defenses which may
be available by virtue of any valuation, stay, moratorium law or similar law now
or hereafter in effect, any right to require the marshalling of assets of the
Company or any other entity or person primarily or secondarily liable with
respect to any of the Liabilities, and all suretyship defenses
generally. Without limiting the generality of the foregoing, the
Guarantors agree to the provisions of any instrument evidencing or otherwise
executed in connection with any Liability and agree that the obligations of the
Guarantors hereunder shall not be released or discharged, in whole or in part,
or otherwise affected by (i) the failure of the Lender to assert any claim or
demand or to enforce any right or remedy against the Company or any other entity
or other person primarily or secondarily liable with respect to any of the
Liabilities; (ii) any extensions, compromise, refinancing, consolidation or
renewals of any Liability; (iii) any change in the time, place or manner of
payment of any of the Liabilities or any rescissions, waivers, compromise,
refinancing, consolidation or other amendments or modifications of the Note or
any other agreement, instrument or note evidencing or otherwise executed in
connection with any of the Liabilities; (iv) the addition, substitution or
release of any entity or other person primarily or secondarily liable for any
Liability; or (v) any other act or omission which might in any manner or to any
extent vary the risk of the Guarantors or otherwise operate as a release or
discharge of the Guarantors, all of which may be done without notice to the
Guarantors.
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The
obligations of the Guarantors hereunder are primary, with no recourse necessary
by the Lender against the Company prior to proceeding against the Guarantors
hereunder. The Guarantors agree that the Liabilities will be paid and
performed strictly in accordance with their respective terms, regardless of any
law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Lender with respect
thereto. The Guarantors assent to any indulgence or waiver which the
Lender may grant or give the Company and/or any other person liable or obligated
to the Lender for or on the Liabilities, without notice to, or consent from the
Guarantors. No compromise, settlement, or release by the Lender of
the Liabilities or of the obligations of any such other person (whether or not
jointly liable with the Guarantors) shall affect the obligations of the
Guarantors hereunder. No action by the Lender which has been assented
to herein shall affect the obligations of the Guarantors to the Lender
hereunder.
This
instrument shall inure to the benefit of the Lender, its successors and assigns,
shall be binding upon the heirs, successors, representatives, and assigns of the
Guarantors, and shall apply to all Liabilities of the Company and any successor
to the Company, including any successor by operation of law.
This
instrument and all documents which have been or may be hereinafter furnished by
the Guarantors to the Lender may be reproduced by the Lender by any
photographic, photostatic, microfilm, microcard, miniature photographic,
xerographic, or similar process, and the Lender may destroy the original from
which such document was so reproduced. 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 in the regular course of business).
This
instrument shall be governed, construed, and interpreted in accordance with 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). The
Guarantors submits to the jurisdiction of any federal, state or local court
located in the State of New York for all matters in connection with this
Guaranty or any amendment or supplement hereto or to any transaction in
connection herewith.
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It is the
intention of the Guarantors that the provisions of the within Guaranty be
liberally construed to the end that the Lender may be put in as good a position
as if the Company had promptly, punctually, and faithfully performed all
Liabilities and the Guarantors had promptly, punctually and faithfully performed
hereunder.
Any
determination that any provision herein is invalid, illegal, or unenforceable in
any respect in any instance shall not affect the validity, legality, or
enforceability of such provision in any other instance and shall not affect the
validity, legality, or enforceability of any other provision contained
herein.
Any
notice from the Lender to the Guarantors in connection with this Guaranty shall
be sent to the Guarantors at 13865 Sunrise Valley Drive, Herndon, VA
20171. Any notice or communication pursuant or related to this
Guaranty 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.
This
document may be executed in counterparts, each of which shall be an original but
all of which together shall constitute one instrument.
EACH
GUARANTOR AGREES THAT NEITHER IT NOR ANY ASSIGNEE OR SUCCESSOR SHALL (A) SEEK A
JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER ACTION BASED
UPON OR ARISING OUT OF, THIS AGREEMENT OR THE DEALINGS OR THE RELATIONSHIP
BETWEEN THE GUARANTORS AND THE LENDER, OR (B) SEEK TO CONSOLIDATE ANY SUCH
ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED.
[Signature
page follows]
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IN
WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly executed by
an authorized representative as of the 8th day of
October 2010.
XO
HOLDINGS, INC.
TELECOMMUNICATIONS
OF NEVADA, LLC
V&K
HOLDINGS, INC.
XO
INTERNATIONAL HOLDINGS, INC.
XO
INTERNATIONAL, INC.
XO NEVADA
MERGER SUB, INC.
|
By:
|
/s/ Laura W. Thomas | |||
| Name: | Laura W. Thomas | |||
| Title: | Senior Vice President & Chief Financial Officer | |||
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