Attached files
| file | filename |
|---|---|
| 8-K - XO HOLDINGS INC | v198684_8k.htm |
| EX-99.2 - XO HOLDINGS INC | v198684_ex99-2.htm |
EXECUTION
VERSION
REVOLVING PROMISSORY
NOTE
|
New
York, New York
|
|
|
US$50,000,00.00
|
as of October 8,
2010
|
FOR VALUE
RECEIVED, XO Communications, LLC (together with its successors and assigns, the
“Borrower”),
HEREBY UNCONDITIONALLY PROMISES TO PAY to, or to the order of, Arnos Corp.
(together with its successors and assigns, the “Lender”), on the
terms hereinafter set forth, the principal sum of FIFTY MILLION DOLLARS
($50,000,000.00), or such lesser amount as is outstanding from time to time as
set forth on Schedule
1 hereto, together with interest thereon for such periods, on such dates
and at such rates as set forth in Section 1 of this Note.
The
Borrower further promises to pay the Undrawn Amount Fee (as hereinafter
defined), and any other amounts owed hereunder as such Undrawn Amount Fee and
other amounts shall become due and payable pursuant to the terms
hereof.
1. Interest. The
principal amount of each borrowing under this Promissory Note (this “Note”) outstanding
from time to time as set forth on Schedule 1 hereto
shall bear interest at a rate equal to the greater of (x) the LIBOR Rate plus
525 basis points, per annum and (y) 6.75%, per annum, which interest shall
accrue daily and be compounded quarterly and shall be computed on the basis of
the actual number of days elapsed over a 360-day year. Such interest
shall commence to accrue on the date of each applicable borrowing and shall be
due and paid in arrears on or, at the Borrower’s option, before, each of April
8, 2011 (to the extent outstanding on such date) and the Maturity Date (as
defined below) or such earlier date as principal, interest, the Undrawn Amount
Fee and/or other amounts shall become due and payable pursuant to the terms
hereof (provided that if any
such day is not a Business Day (as hereinafter defined), such payment shall be
made on the immediately following Business Day with no additional interest
accruing thereon, if so made). To the extent any payment of interest
is made prior to 12:00 noon (New York City time) on the date of such payment, no
interest shall accrue on such date with respect to such payment. To
the extent any payment of interest is made after 12:00 noon (New York City time)
on the date of such payment, interest shall accrue and be payable on such date
with respect to such payment.
Notwithstanding
the foregoing, during any period in which an Event of Default exists, the
principal amount of each borrowing outstanding under this Note shall bear
interest at a rate equal to the greater of (x) the LIBOR Rate plus 725 basis
points, per annum and (y) 8.75%, per annum (such rate, the “Default Rate”), which
interest shall be compounded quarterly and shall be computed on the basis of the
actual number of days elapsed over a 360-day year. Any amounts
payable hereunder that are not paid when due (whether principal, interest,
Undrawn Amount Fees or other amounts) shall, to the fullest extent permitted by
applicable law, bear interest at the Default Rate. Anything contained
in this Note or any other related document to the contrary notwithstanding, the
Lender does not intend to charge, and the Borrower shall not be required to pay,
whether under this Note or any other related document, any amount to the extent
in excess of the maximum amount permitted under applicable law, and the Lender
shall, at Lender’s discretion, either return any such excess amount or same
shall be credited against the principal or other amounts due
hereunder.
As used
in this Note, the term “Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks in
New York City, New York are authorized or required by law to close.
As used
in this Note, the term “LIBOR Rate” means,
with respect to any borrowing under this Note, the rate appearing on Bloomberg’s
British Banker’s Association rate page (or on any successor or substitute page)
at approximately 11:00 a.m., London time, one Business Day prior to the
disbursement of funds in respect of such borrowing, as the rate for U.S. dollar
deposits for a period equal to six (6) months. In the event that such
rate is not available on such page at such time for any reason, then the “LIBOR
Rate” with respect to such borrowing under this Note shall be determined by
reference to any analogous page of another quotation service providing
quotations comparable to those currently provided on such page for interest
rates applicable to U.S. dollar deposits in the London interbank market, as
reasonably determined by the Lender.
2. Undrawn Amount
Fee. The Borrower shall pay to the Lender a Undrawn Amount Fee
(the “Undrawn Amount
Fee”) for the period from and including the date hereof to but excluding
the Maturity Date equal to 0.75%, per annum, of the average daily unused amount
of the Commitment (as defined below), which fee shall accrue daily and be
computed on the basis of the actual number of days elapsed over a 360-day year
and shall be paid in arrears on each of April 8, 2011 (including interest
accrued on such date) and the Maturity Date.
As used
in this Note, the term “Commitment” means, as
of any date, the Maximum Amount (as defined below) less the aggregate
principal amount outstanding hereunder on such date.
3. Maturity
Date. The outstanding principal amount under this Note,
together with all then accrued but unpaid interest thereon, any unpaid Undrawn
Amount Fees and any other amounts then due and payable hereunder, shall be due
and paid by Borrower on the earliest of (i) October 8, 2011, (ii) the date on
which any financing transaction, whether for debt or equity, is consummated by
Borrower and/or any Guarantor (as defined below) in an amount equal to or
greater than $50,000,000 and (iii) a date selected by Borrower that is prior to
October 8, 2011, provided such date is contained in a written notice delivered
to Lender at least two Business Days prior to such earlier date (the earliest of
such dates, the “Maturity
Date”). No further borrowings shall be permitted after the
Maturity Date.
4. Requests for
Borrowing. From time to time following the date hereof through
the Maturity Date, the Borrower may make a written request to borrow from the
Lender principal amounts under this Note up to a maximum amount not to exceed,
together with the aggregate principal amount then outstanding under this Note,
FIFTY MILLION DOLLARS ($50,000,000.00), in the aggregate (the “Maximum
Amount”). Such borrowings shall be in increments of $1,000,000
each, or whole multiples of $1,000,000 in excess thereof, (or if the then
aggregate amount available for borrowing under this Note is less than
$1,000,000, such aggregate lesser amount). Within two (2) Business
Days following Lender’s receipt of any such borrowing request, the Lender shall
arrange to lend and disburse such monies to the Borrower so long as, and to the
extent, the aggregate principal amount outstanding under this Note, after giving
effect to such borrowing, does not exceed the Maximum Amount.
Simultaneously
with any borrowing hereunder, the Lender shall update Schedule 1 hereto
accurately to reflect any amounts to be so borrowed and the aggregate principal
amount outstanding under this Note after giving effect thereto and, upon
approval thereof by the Borrower, the Lender and the Borrower shall each affix
the initials of their respective authorized representatives to such updated
Schedule 1,
which shall thereafter constitute prima faciae evidence of the
aggregate principal amount due hereunder.
Disbursement
of any monies by the Lender in connection with a borrowing hereunder shall be
made to the Borrower by wire transfer of immediately available funds in
accordance with the instructions that the Borrower specifies to the Lender in
the applicable written request.
5. Payments. The
Borrower may prepay all or any portion of this Note at any time without premium
or penalty; provided that any
partial prepayment hereunder shall be in increments of $1,000,000 each, or whole
multiples of $1,000,000 in excess thereof (or if the then aggregate amount
outstanding under this Note is less than $1,000,000, such lesser aggregate
amount). All payments made on this Note shall be made to the Lender
by wire transfer of immediately available funds in accordance with the
instructions that the Lender may specify to the Borrower in writing from time to
time. All payments to the Lender received from the Borrower hereunder
shall be applied first, to the payment
of any Expenses owed to the Lender that are then due and payable pursuant to the
terms of this Note, second, to the
payment of any accrued Undrawn Amount Fees that are then due and payable
pursuant to the terms of this Note, third, to the payment
of accrued interest that is then due and payable pursuant to the terms of this
Note, and fourth, to reduce the
principal balance hereunder. Any payments of Expenses, Undrawn Amount
Fees, principal or interest shall be made in U.S. dollars and in immediately
available funds and without deduction or reduction of any kind (whether for
set-off, recoupment or otherwise).
Simultaneously
with any prepayment hereunder, the Lender shall update Schedule 1 hereto
accurately to reflect any amounts to be so prepaid and the aggregate principal
amount outstanding under this Note after giving effect thereto and, upon
approval thereof by the Borrower, the Lender and the Borrower shall each affix
the initials of their respective authorized representatives to such updated
Schedule 1,
which shall thereafter constitute prima faciae evidence of the
aggregate principal amount due hereunder.
6. Representations and
Warranties. The Borrower hereby represents and warrants to the
Lender that (a) this Note when executed and delivered by the Borrower shall
constitute a valid and binding obligation of the Borrower, enforceable in
accordance with its terms, subject only to laws of general application relating
to bankruptcy, insolvency and the relief of debtors; (b) the Borrower is not in
violation or default of any mortgage, indenture, agreement, instrument or
contract to which it is a party or by which it is bound, except where such
violation or default would not reasonably be expected to have a material adverse
effect on (x) the ability of the Borrower to perform its obligations hereunder
or (y) the validity or enforceability of this Note; and (c) the execution,
delivery and performance by the Borrower of this Note and the consummation of
the transactions contemplated hereby, will not result in any such violation or
default or an event that results in the creation of any material lien, charge or
encumbrance upon any assets of the Borrower.
7. Event of
Default. This Note shall become immediately due and payable
upon the occurrence of an Event of Default, whereupon the unpaid principal of
this Note and all accrued and unpaid interest, accrued Undrawn Amount Fees and
any other amounts owed hereunder shall become and be immediately due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower. For purposes of
this Note, the occurrence of any of the following shall constitute an “Event of Default”
under this Note:
(a) any
failure by the Borrower to pay to the Lender on the Maturity Date an amount
equal to the then outstanding aggregate principal amount of this Note together
with all accrued but unpaid interest thereon (and any other amounts owed
hereunder);
(b) any
failure by the Borrower to pay to the Lender on or before the applicable due
date thereof (as provided by this Note), any interest payment, Undrawn Amount
Fees, payment of Expenses and any other payment as and when due hereunder, which
failure remains uncured for a period of ten (10) days following the applicable
due date thereof; or
(c) any
material breach by the Borrower of any other terms or provisions of this Note,
which breach remains uncured for a period of ten (10) days following (x) the
date on which the Lender apprises the Borrower in writing of the existence of
such breach or (y) the date on which the Borrower otherwise becomes aware of the
existence of such breach.
8. Assignment; Transfers;
Successors. This Note may not be transferred, assigned,
pledged or encumbered, in whole or in part, by the Borrower and the Borrower may
not assign any rights or delegate any of its obligations under this Note, in
each case without the prior written consent of the Lender. This Note
may, with reasonable prior written notice to the Borrower, be transferred,
assigned, pledged or encumbered, in whole or in part, by the Lender without the
prior written consent of the Borrower. Subject to the foregoing, this
Note shall inure to the benefit of and be binding upon the successors and
permitted assigns of the Borrower and the Lender. There are no third
party beneficiaries of this Note.
9. Amendment; Waiver.
Any amendment hereto or waiver of any provision hereof may be made only with the
written consent of each of the Borrower and the Lender. No failure or delay by
the Lender to insist upon the strict performance of any term or condition of
this Note, or to exercise any right or remedy consequent upon a breach thereof,
shall constitute, or be deemed to constitute, a waiver of any such term or
condition or of any such breach, or preclude the Lender from exercising any such
right or remedy at any later time or times. By accepting payment
after the due date of any amount payable under the terms of this Note, the
Lender shall not be deemed to have waived the right either to require prompt
payment when due of all other amounts payable under the terms of this Note or to
declare an Event of Default for the failure to effect such prompt payment of any
such other amount. No course of dealing or conduct shall be effective
to modify, waive or release any provision of this Note.
10. Costs and Expenses;
Indemnity. The Borrower hereby agrees to pay all of the
Lender’s costs of collection or attempting to collect the same and any other
enforcement of this Note, including without limitation, reasonable attorneys’
fees and disbursements and court costs (including those incurred in connection
with any appeal) (the foregoing costs and expenses being referred to herein as
“Expenses”).
The Borrower shall protect, defend, indemnify and save harmless the Lender and
any of its affiliates and their respective officers, directors, members,
partners, stockholders, controlling persons and employees (each an “Indemnitee”), from
and against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including without limitation reasonable attorneys'
fees and expenses), imposed upon or incurred by or asserted against any
Indemnitee by reason of or in connection with the extension of credit by the
Lender pursuant to this Note or any of the terms thereof. The obligations and
liabilities of the Borrower under the foregoing sentence shall survive any
termination, satisfaction, or assignment of this Note or the indebtedness
covered hereunder.
11. Guaranty. Any
and all amounts owing pursuant to this Note are guaranteed in accordance with
the terms of that certain Guaranty, dated as of the date hereof, executed by the
following affiliates of the Borrower for the benefit of the
Lender: XO Holdings, Inc., Telecommunications of Nevada, LLC, V&K
Holdings, Inc., XO International Holdings, Inc., XO International, Inc., and XO
Nevada Merger Sub, Inc. (collectively, the “Guarantors”).
12. Certain
Waivers. The Borrower hereby waives presentment, demand,
protest, notice of acceptance, notice of dishonor, notice of protest and all
other notices of any kind. Should any indebtedness represented by
this Note be collected at law or in equity or in bankruptcy or other proceedings
after demand therefore has been made, or should this Note be placed in the hands
of attorneys for collection after default.
13. WAIVER OF
JURY TRIAL. EACH OF THE BORROWER AND
THE LENDER, BY ITS ACCEPTANCE OF THIS NOTE, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS NOTE OR ANY CLAIM RELATING THERETO.
14. Notices. All
notices hereunder shall be given in writing and shall be deemed delivered when
received by the party to whom such notice is addressed at the address set forth
below such party’s signature or at such other address as may be specified by
such party from time to time.
15. Governing Law;
Jurisdiction. This Note and the legality, validity and
performance of the terms hereof is made in accordance with and shall be
construed under the laws of the State of New York, without regard to the
conflicts of law principles thereof that would result in the application of any
law other than the law of the State of New York. Each of the Lender
and the Borrower hereby (a) submits to the exclusive jurisdiction of any state
or federal court sitting in New York, New York in any action or proceeding
arising out of or relating to this Note, (b) irrevocably waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding, and (c) agrees that venue therein is
proper and convenient.
16. Counterparts. This
Note may be executed in counterparts, each of which shall be considered an
original but all of which together shall be deemed one instrument.
| BORROWER: | |||
| XO COMMUNICATIONS, LLC | |||
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/s/ Laura W. Thomas | ||
| Name: | Laura W. Thomas | ||
|
Title:
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Senior
Vice President, Chief Financial Officer and Manager
|
||
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Address:
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13865 Sunrise Valley Drive | ||
| Herndon, Virginia 20171 | ||||
| Facsimile: | 703-547-2025 | |||
| Attention: | General Counsel | |||
ACCEPTED
AND AGREED
AS
OF THE DATE FIRST
WRITTEN ABOVE:
LENDER:
ARNOS
CORP.
| /s/ Edward E. Mattner | |||
| Name: | Edward E. Mattner | ||
|
Title:
|
Authorized
Signatory
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||
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Address:
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c/o Icahn Associates Corp. | |||
| 767 Fifth Avenue, 46th Floor | ||||
| New York, New York 10153 | ||||
| Facsimile: | 650-328-6345 | |||
| Attention: | Chief Financial Officer | |||
[PROMISSORY
NOTE, DATED OCTOBER 8, 2010, EVIDENCING REVOLVING LOAN OF $50,000,000.00 FROM
ARNOS CORP. TO XO COMMUNICATIONS, LLC, DUE OCTOBER 8, 2011]
Schedule
1
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Date
of Borrowing/
Prepayment
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Amount
of Borrowing/ Prepayment
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Aggregate
Amount Outstanding after Borrowing/ Prepayment
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Lender’s
Initials
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Borrower’s
Initials
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