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EXHIBIT 4.3
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Agreement"), dated as of June 24,
1997, among First Trust National Association, as escrow agent (in such
capacity, the "Escrow Agent"), First Trust National Association, as Trustee (in
such capacity, the "Trustee") under the Indenture (as defined herein), and
Verio Inc., a Delaware corporation (the "Company").
R E C I T A L S :
A. Pursuant to the Indenture, dated as of June 24, 1997
(the "Indenture"), between the Company and the Trustee, the Company is issuing
$150,000,000 aggregate principal amount of its 13 1/2% Senior Notes Due 2004
(the "Series A Securities") and authorizing the issuance of 13 1/2% Senior
Notes Due 2004, Series B (the "Series B" Securities," and together with the
Series A Securities, the "Securities").
B. As security for its obligations under the Securities
and the Indenture, the Company hereby grants to the Trustee, for the benefit of
the Trustee, any predecessor Trustee under the Indenture and the holders of the
Securities, a security interest in and lien upon the Escrow Account (as defined
herein).
C. The parties have entered into this Agreement in order
to set forth the conditions upon which, and the manner in which, funds will be
disbursed from the Escrow Account and released from the security interest and
lien described above.
A G R E E M E N T :
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINED TERMS. All capitalized terms used but not
defined herein shall have the meanings ascribed to them in the Indenture. In
addition to any other defined terms used herein, the following terms shall
constitute defined terms for purposes of this Agreement and shall have the
meanings set forth below:
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"AFFILIATE" of any specified person means any other person
which, directly or indirectly, controls, is controlled by or is under common
control with such specified person. For the purposes of this definition,
"control" when used with respect to any person means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing.
"APPLIED" means that disbursed funds have been applied (i) to
the payment of interest on the Securities, (ii) pursuant to Section 3(c) or
(iii) pursuant to Section 6(b)(iii).
"AVAILABLE FUNDS" means (A) the sum of (i) the Initial Escrow
Amount and (ii) interest earned or dividends paid on the funds in the Escrow
Account (including holdings of U.S. Government Securities), less (B) the
aggregate disbursements previously made pursuant to this Agreement.
"COLLATERAL" shall have the meaning given in Section 6(a)
hereof.
"ESCROW ACCOUNT" shall mean the escrow account established
pursuant to Section 2.
"ESCROW ACCOUNT STATEMENT" shall have the meaning given in
Section 2(f).
"INITIAL ESCROW AMOUNT" shall mean $46,582,824.49.
"INTEREST PAYMENT DATE" means June 15 and December 15 of each
year, commencing on December 15, 1997 until the Securities are paid in full.
"ISSUE DATE" has the meaning set forth in the Indenture.
"PAYMENT NOTICE AND DISBURSEMENT REQUEST" means a notice sent
by the Trustee to the Escrow Agent requesting a disbursement of funds from the
Escrow Account, in substantially the form of Exhibit A hereto. Each Payment
Notice and Disbursement Request shall be signed by an officer of the Trustee.
"U.S. GOVERNMENT SECURITIES" means securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged.
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2. ESCROW ACCOUNT; ESCROW AGENT.
(a) Appointment of Escrow Agent. The Company and the
Trustee hereby appoint the Escrow Agent, and the Escrow Agent hereby accepts
appointment, as escrow agent, under the terms and conditions of this Agreement.
(b) Establishment of Escrow Account.
(i) On the Issue Date, the Escrow Agent shall establish an
escrow account entitled the "Escrow Account pledged by Verio Inc. to First
Trust National Association, as Trustee" (the "Escrow Account") at its office
located at 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000. All funds
accepted by the Escrow Agent pursuant to this Agreement shall be held for the
exclusive benefit of the Trustee, any predecessor Trustee under the Indenture
and holders of the Securities, as secured parties hereunder (collectively, the
"Beneficiaries"). All such funds shall be held in the Escrow Account until
disbursed or paid in accordance with the terms hereof. The Escrow Account, the
funds held therein and any U.S. Government Securities held by the Escrow Agent
shall be under the sole dominion and control of the Escrow Agent for the
benefit of the Beneficiaries. On the Issue Date, the Company shall deliver the
Initial Escrow Amount to the Escrow Agent for deposit into the Escrow Account
against the Escrow Agent's written acknowledgment and receipt of the Initial
Escrow Amount.
(ii) Establishment of Securities Account. The Escrow
Agent hereby confirms that (A) the Escrow Agent has established an account for
the benefit of the Beneficiaries (such account and any successor account, the
"Securities Account") containing the Escrow Account and (B) the Securities
Account is a "securities account" as such term is defined in Section 8-501(a)
of the 1994 Official Text of Article 8 of the Uniform Commercial Code with
conforming amendments to Article 9 (the "Revised UCC").
(c) Escrow Agent Compensation. The Company shall pay to
the Escrow Agent such compensation for services to be performed by it under
this Agreement as the Company and the Escrow Agent may agree in writing from
time to time. The Escrow Agent shall be paid any compensation owed to it
directly by the Company and shall not disburse from the Escrow Account any such
amounts.
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The Company shall reimburse the Escrow Agent upon request for
all reasonable expenses, disbursements, and advances incurred or made by the
Escrow Agent in implementing any of the provisions of this Agreement, including
compensation and the reasonable expenses and disbursements of its counsel. The
Escrow Agent shall be paid any such expenses owed to it directly by the Company
and shall not disburse from the Escrow Account any such amounts.
(d) Investment of Funds in Escrow Account. Funds
deposited in the Escrow Account shall be invested and reinvested only upon the
following terms and conditions:
(i) Acceptable Investments. All funds deposited or held
in the Escrow Account at any time shall be invested by the Escrow
Agent in U.S. Government Securities in accordance with the Initial
Instructions annexed hereto as Schedule A and thereafter, if
necessary, the Company's written instructions from time to time to the
Escrow Agent; provided, however, that the Company shall only designate
investment of funds in U.S. Government Securities maturing in an
amount sufficient to and/or generating interest income sufficient to,
when added to the balance of funds held in the Escrow Account, provide
for the payment of interest on the outstanding Securities on each
Interest Payment Date beginning on and including December 15, 1997 and
through and including the Interest Payment Date on December 15, 1999;
provided, further, however, that any such written instruction shall
specify the particular investment to be made, shall state that such
investment is authorized to be made hereby and in particular satisfies
the requirements of the preceding proviso and Section 2(d)(v), shall
contain the certification referred to in Section 2(d)(ii), if
required, and shall be executed by an Officer of the Company. All
U.S. Government Securities shall be assigned to and held in the
possession of, or, in the case of U.S. Government Securities
maintained in book entry form with the Federal Reserve Bank (i.e.,
TRADES), transferred to a book entry account in the name of, the
Escrow Agent, for the benefit of the Beneficiaries, with such
guarantees as are customary, except that U.S. Government Securities
maintained in book entry form with the Federal Reserve Bank shall be
transferred to a book entry account in the name of the Escrow Agent at
the Federal Reserve Bank that includes only U.S. Government Securities
held by the Escrow Agent for its customers and segregated by separate
recordation in the books and records of the Escrow Agent. The Escrow
Agent shall not be liable for
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losses on any investments made by it pursuant to and in compliance
with such instructions. In the absence of qualifying instructions
from the Company that meet the requirements of this Section 2(d)(i),
the Escrow Agent shall have no obligation to invest funds held in the
Escrow Account.
(ii) Security Interest in Investments. No investment of
funds in the Escrow Account shall be made unless the Company has
certified to the Escrow Agent and the Trustee that, upon such
investment, the Trustee will have a first priority perfected security
interest in the applicable investment. If a certificate as to a class
of investments has been provided to the Escrow Agent, a certificate
need not be issued with respect to individual investments in
securities in that class if the certificate applicable to the class
remains accurate with respect to such individual investments, which
continued accuracy the Escrow Agent may conclusively assume. On the
Issue Date, and on each anniversary of the Issue Date thereafter until
the date upon which the balance of the Available Funds shall have been
reduced to zero, each of the Trustee and the Escrow Agent shall
receive an Opinion of Counsel to the Company, dated each such date as
applicable, which opinion shall meet the requirements of Section
314(b) of the Trust Indenture Act of 1939, as amended (the "TIA") and
shall comply with Section 13.02 of the Indenture.
(iii) Interest and Dividends. All interest earned and
dividends paid on funds invested in U.S. Government Securities shall
be deposited in the Escrow Account as additional Collateral for the
exclusive benefit of the Beneficiaries and, if not required to be
disbursed in accordance with the terms hereof, subject to subsections
6(b)(iii), 6(e) and 6(f) hereof, shall be reinvested in accordance
with the terms hereof at the Company's written instruction unless a
Default or Event of Default has occurred or the Trustee has notified
the Escrow Agent that it should only take direction from the Trustee
or should no longer take direction from the Company.
(iv) Limitation on Escrow Agent's Responsibilities. The
Escrow Agent's sole responsibilities under this Section 2 shall be (A)
to retain possession of certificated U.S. Government Securities
(except, however, that the Escrow Agent may surrender possession to
the issuer of any such U.S. Government Security for the purposes of
effecting assignment, crediting interest, or reinvesting such security
or reducing such
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security to cash) and to be the registered or designated owner of U.S.
Government Securities which are not certificated, (B) to follow the
Company's written instructions given in accordance with Section
2(d)(i), (C) to invest and reinvest funds pursuant to this Section
2(d) and (D) to use reasonable efforts to reduce to cash such U.S.
Government Securities as may be required to fund any disbursement or
payment in accordance with Section 3. In connection with clause (A)
above, the Escrow Agent will maintain continuous possession in the
jurisdiction of its principal place of business of certificated U.S.
Government Securities and cash included in the Collateral and will
cause uncertificated U.S. Government Securities to be registered in
the book-entry system of, and transferred to an account of the Escrow
Agent or a sub-agent of the Escrow Agent at, any Federal Reserve Bank.
Except as provided in Section 6, the Escrow Agent shall have no other
responsibilities with respect to perfecting or maintaining the
perfection of the Trustee's security interest in the Collateral and
shall not be required to file any instrument, document or notice in
any public office at any time or times. In connection with clause (D)
above and subject to the following sentence, the Escrow Agent shall
not be required to reduce to cash any U.S. Government Securities to
fund any disbursement or payment in accordance with Section 3 in the
absence of written instructions signed by an Officer of the Company
specifying the particular investment to liquidate. If no such written
instructions are received, the Escrow Agent may liquidate those U.S.
Government Securities having the lowest interest rate per annum or if
none such exist, those having the nearest maturity.
(v) Manner of Investment. Funds deposited in the Escrow
Account shall initially be invested in accordance with the Initial
Instructions (attached hereto as Schedule A), which is in a manner
such that there will be sufficient funds available without any further
investment by the Company to cover all interest due on the outstanding
Securities, as such interest becomes due, for each Interest Payment
Date occurring from the Issue Date and ending on (and including)
December 15, 1999, provided that such investments shall have such
maturities and/or interest payment dates such that funds will be
available with respect to each such Interest Payment Date no later
than the time the Escrow Agent is required to disburse such funds to
the Trustee pursuant to Section 3(a). The Escrow Agent shall have no
responsibility for determining whether funds held in the Escrow
Account shall have been invested in such a manner so as to comply with
the requirements of this clause (v).
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(e) Substitution of Escrow Agent. The Escrow Agent may
resign by giving no less than 20 Business Days prior written notice to the
Company and the Trustee. Such resignation shall take effect upon the later to
occur of (i) delivery of all funds and U.S. Government Securities maintained by
the Escrow Agent hereunder and copies of all books, records, plans and other
documents in the Escrow Agent's possession relating to such funds or U.S.
Government Securities or this Agreement to a successor escrow agent mutually
approved by the Company and the Trustee (which approvals shall not be
unreasonably withheld or delayed) and (ii) the Company, the Trustee and such
successor escrow agent entering into this Agreement or any written successor
agreement no less favorable to the interests of the holders of the Securities
and the Trustee than this Agreement; and the Escrow Agent shall thereupon be
discharged of all obligations under this Agreement and shall have no further
duties, obligations or responsibilities in connection herewith, except as set
forth in Section 4. If a successor escrow agent has not been appointed or has
not accepted such appointment within 20 Business Days after notice of
resignation is given to the Company, the Escrow Agent may apply to a court of
competent jurisdiction for the appointment of a successor escrow agent.
(f) Escrow Account Statement. At least 30 days prior to
each Interest Payment Date, the Escrow Agent shall deliver to the Company and
the Trustee a statement setting forth with reasonable particularity the balance
of funds then in the Escrow Account and the manner in which such funds are
invested ("Escrow Account Statement"). The parties hereto irrevocably instruct
the Escrow Agent that on the first date upon which the balance in the Escrow
Account (including the holdings of all U.S. Government Securities) is reduced
to zero, the Escrow Agent shall deliver to the Company and to the Trustee a
notice that the balance in the Escrow Account has been reduced to zero.
3. DISBURSEMENTS.
(a) Payment Notice and Disbursement Request;
Disbursements. The Trustee shall, at least five business days prior to an
Interest Payment Date, submit to the Escrow Agent a completed Payment Notice
and Disbursement Request substantially in the form of Exhibit A hereto.
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The Escrow Agent's disbursement pursuant to any Payment Notice
and Disbursement Request shall be subject to the satisfaction of the applicable
conditions set forth in Section 3(b). Provided such Payment Notice and
Disbursement Request is not rejected by it, the Escrow Agent, as soon as
reasonably practicable on the Interest Payment Date, but in no event later than
12:00 Noon (New York City time) on the Interest Payment Date, shall disburse
the funds requested in such Payment Notice and Disbursement Request by wire or
book-entry transfer of immediately available funds to the account of the
Trustee for the benefit of the Beneficiaries. The Escrow Agent shall notify
the Trustee as soon as reasonably possible (but not later than two (2) business
days from the date of receipt of the Payment Notice and Disbursement Request)
if any Payment Notice and Disbursement Request is rejected and the reason(s)
therefor. In the event such rejection is based upon nonsatisfaction of the
condition in Section 3(b)(I) below, the Trustee shall thereupon resubmit the
Payment Notice and Disbursement Request with appropriate changes.
(b) Conditions Precedent to Disbursement. The Escrow
Agent's payment of any disbursement shall be made only if: (I) the Trustee
shall have submitted, in accordance with the provisions of Section 3(a) herein,
a completed Payment Notice and Disbursement Request to the Escrow Agent
substantially in the form of Exhibit A with blanks appropriately filled in and
(II) the Escrow Agent shall not have received any notice from the Trustee that
as a result of an Event of Default the indebtedness represented by the
Securities has been accelerated and has become due and payable (in which event
the Escrow Agent shall apply all Available Funds as required by Section
6(b)(iii)).
(c) Retired Securities. In the event a portion of the
Securities has been retired by the Company and submitted to the Trustee for
cancellation and there is no Default or Event of Default under the Indenture,
funds representing the lesser of (A) any funds remaining in the Escrow Account
that are in excess of the amount sufficient to pay interest through and
including December 15, 1999 on the Securities not so retired and (B) the
interest payments which have not previously been made on such retired
Securities for each Interest Payment Date through the Interest Payment Date to
occur on December 15, 1999 shall, upon the written request of the Company to
the Escrow Agent and the Trustee, be paid to the Company upon compliance with
the release of collateral provisions of the TIA and upon receipt by the Escrow
Agent of a notice relating thereto from the Trustee.
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4. ESCROW AGENT.
(a) Limitation of the Escrow Agent's Liability;
Responsibilities of the Escrow Agent. The Escrow Agent's responsibility and
liability under this Agreement shall be limited as follows: (i) the Escrow
Agent does not represent, warrant or guaranty to the holders of the Securities
from time to time the performance of the Company; (ii) the Escrow Agent shall
have no responsibility to the Company or the holders of the Securities or the
Trustee from time to time as a consequence of performance or non-performance by
the Escrow Agent hereunder, except for any gross negligence or willful
misconduct of the Escrow Agent; (iii) the Company shall remain solely
responsible for all aspects of the Company's business and conduct; and (iv) the
Escrow Agent is not obligated to supervise, inspect or inform the Company or
any third party of any matter referred to above.
No implied covenants or obligations shall be inferred from
this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by
the provisions of any agreement beyond the specific terms hereof. Specifically
and without limiting the foregoing, the Escrow Agent shall in no event have any
liability in connection with its investment, reinvestment or liquidation, in
good faith and in accordance with the terms hereof, of any funds or U.S.
Government Securities held by it hereunder, including without limitation any
liability for any delay not resulting from gross negligence or willful
misconduct in such investment, reinvestment or liquidation, or for any loss of
principal or income incident to any such delay.
The Escrow Agent shall be entitled to rely upon any judicial
order or judgment, upon any written opinion of counsel or upon any
certification, instruction, notice, or other writing delivered to it by the
Company or the Trustee in compliance with the provisions of this Agreement
without being required to determine the authenticity or the correctness of any
fact stated therein or the propriety or validity of service thereof. The
Escrow Agent may act in reliance upon any instrument comporting with the
provisions of this Agreement or signature believed by it to be genuine and may
assume that any person purporting to give notice or receipt or advice or make
any statement or execute any document in connection with the provisions hereof
has been duly authorized to do so.
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At any time the Escrow Agent may request in writing an
instruction in writing from the Company, and may at its own option include in
such request the course of action it proposes to take and the date on which it
proposes to act, regarding any matter arising in connection with its duties and
obligations hereunder; provided, however, that the Escrow Agent shall state in
such request that it believes in good faith that such proposed course of action
is consistent with another identified provision of this Agreement. The Escrow
Agent shall not be liable to the Company for acting without the Company's
consent in accordance with such a proposal on or after the date specified
therein if (i) the specified date is at least four Business Days after the
Company receives the Escrow Agent's request for instructions and its proposed
course of action, and (ii) prior to so acting, the Escrow Agent has not
received the written instructions requested from the Company.
The Escrow Agent may act pursuant to the written advice of
counsel chosen by it with respect to any matter relating to this Agreement and
(subject to clause (ii) of the first paragraph of this Section 4(a)) shall not
be liable for any action taken or omitted in accordance with such advice.
The Escrow Agent shall not be called upon to advise any party
as to selling or retaining, or taking or refraining from taking any action with
respect to, any securities or other property deposited hereunder.
In the event of any ambiguity in the provisions of this
Agreement with respect to any funds or property deposited hereunder, the Escrow
Agent shall be entitled to refuse to comply with any and all claims, demands or
instructions with respect to such funds or property, and the Escrow Agent shall
not be or become liable for its failure or refusal to comply with conflicting
claims, demands or instructions. The Escrow Agent shall be entitled to refuse
to act until either any conflicting or adverse claims or demands shall have
been finally determined by a court of competent jurisdiction or settled by
agreement between the conflicting claimants as evidenced in a writing,
satisfactory to the Escrow Agent, or the Escrow Agent shall have received
security or an indemnity satisfactory to the Escrow Agent sufficient to save
the Escrow Agent harmless from and against any and all loss, liability or
expense which the Escrow Agent may incur by reason of its acting. The Escrow
Agent may in addition elect in its sole option to commence an interpleader
action or seek other judicial relief or orders as the Escrow Agent may deem
necessary.
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No provision of this Agreement shall require the Escrow Agent
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder.
5. INDEMNITY. The Company shall indemnify, hold
harmless and defend the Escrow Agent and its directors, officers, agents,
employees and controlling persons, from and against any and all claims,
actions, obligations, liabilities and expenses, including defense costs,
investigative fees and costs, legal fees, and claims for damages, arising from
the Escrow Agent's performance or non-performance, or in connection with its
acceptance or appointment as Escrow Agent, under this Agreement, except to the
extent that such liability, expense or claim is solely and directly
attributable to the gross negligence or willful misconduct of any of the
foregoing persons. The provisions of this Section 5 shall survive any
termination, satisfaction or discharge of this Agreement as well as the
resignation or removal of the Escrow Agent.
6. GRANT OF SECURITY INTEREST;
INSTRUCTIONS TO ESCROW AGENT.
(a) The Company hereby irrevocably grants a first
priority security interest in and lien on, and pledges, assigns and sets over
to the Trustee for the ratable benefit of the Beneficiaries, all of the
Company's right, title and interest in the Escrow Account, and all property now
or hereafter placed or deposited in, or delivered to the Escrow Agent for
placement or deposit in, the Escrow Account, including, without limitation, all
funds held therein, all U.S. Government Securities held by (or otherwise
maintained in the name of) the Escrow Agent pursuant to Section 2, and all
proceeds thereof as well as all rights of the Company under this Agreement
(collectively, the "Collateral"), in order to secure all obligations and
indebtedness of the Company under the Indenture, the Securities and any other
obligation, now or hereafter arising, of every kind and nature, owed by the
Company under the Indenture to the holders of the Securities or to the Trustee
or any predecessor Trustee. The Escrow Agent hereby acknowledges the Trustee's
security interest and lien as set forth above. The Company shall take all
actions necessary on its part to insure the continuance of a first priority
security interest in the Collateral in favor of the Trustee in order to secure
all such obligations and indebtedness.
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(b) The Company and the Trustee hereby irrevocably
instruct the Escrow Agent to, and the Escrow Agent shall: (i) (A) maintain
sole dominion and control over funds and U.S. Government Securities in the
Escrow Account for the benefit of the Trustee to the extent specifically
required herein, (B) maintain, or cause its agent within the jurisdiction of
its principal place of business to maintain, possession of all certificated
U.S. Government Securities purchased hereunder that are physically possessed by
the Escrow Agent in order for the Trustee to enjoy a continuous perfected first
priority security interest therein under the law of the State of Colorado (the
Company hereby agreeing that in the event any certificated U.S. Government
Securities are in the possession of the Company or a third party, the Company
shall use its best efforts to deliver all such certificates to the Escrow
Agent), (C) take all steps specified by the Company pursuant to paragraph (a)
of this Section 6 to cause the Trustee to enjoy a continuous perfected first
priority security interest under any applicable Federal and State of Colorado
law in all U.S. Government Securities purchased hereunder that are not
certificated and (D) maintain the Collateral free and clear of all liens,
security interests, safekeeping or other charges, demands and claims against
the Escrow Agent of any nature now or hereafter existing in favor of anyone
other than the Trustee; (ii) promptly notify the Trustee if the Escrow Agent
receives written notice that any Person other than the Trustee has a lien or
security interest upon any portion of the Collateral; and (iii) in addition to
disbursing amounts held in escrow pursuant to any Payment Notice and
Disbursement Requests given to it by the Trustee pursuant to Section 3, upon
receipt of written notice from the Trustee of the acceleration of the maturity
of the Securities, and direction from the Trustee to disburse all Available
Funds to the Trustee, as promptly as practicable, after following, if it so
chooses, the procedures set forth in the fourth paragraph of Section 4(a),
disburse all funds held in the Escrow Account to the Trustee and transfer title
to all U.S. Government Securities held by the Escrow Agent hereunder to the
Trustee. The lien and security interest provided for by this Section 6 shall
automatically terminate and cease as to, and shall not extend or apply to, and
the Trustee shall have no security interest in, any funds disbursed by the
Escrow Agent to the Company pursuant to this Agreement to the extent not
inconsistent with the terms hereof. Notwithstanding any other provision
contained in this Agreement, the Escrow Agent shall act solely as the Trustee's
agent in connection with its duties under this Section 6 or any other
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duties herein relating to the Escrow Account or any funds or U.S. Government
Securities held thereunder. The Escrow Agent shall not have any right to
receive compensation from the Trustee and shall have no authority to obligate
the Trustee or to compromise or pledge its security interest hereunder.
Accordingly, the Escrow Agent is hereby directed to cooperate with the Trustee
in the exercise of its rights in the Collateral provided for herein.
(c) Any money and U.S. Government Securities collected by
the Trustee pursuant to Section 6(b)(iii) shall be applied as provided in
Section 5.06 of the Indenture. Any surplus of such cash or cash proceeds held
by the Trustee and remaining after indefeasible payment in full of all the
obligations under the Indenture shall be paid over to the Company or to
whomsoever may be lawfully entitled to receive such surplus or as a court of
competent jurisdiction may direct.
(d) Upon demand, the Company will execute and deliver to
the Trustee such instruments and documents as the Trustee may deem necessary or
advisable to confirm or perfect the rights of the Trustee under this Agreement
and the Trustee's interest in the Collateral. The Trustee shall be entitled to
take all necessary action to preserve and protect the security interest created
hereby as a lien and encumbrance upon the Collateral.
(e) The Company hereby appoints the Trustee as its
attorney-in-fact with full power of substitution to do any act which the
Company is obligated hereto to do, and the Trustee may exercise such rights as
the Company might exercise with respect to the Collateral and take any action
in the Company's name to protect the Trustee's security interest hereunder. In
addition to the rights provided under Section 6(b)(iii) hereof, upon an Event
of Default as defined in the Indenture and for so long as such Event of Default
continues, the Trustee may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein or otherwise available to it,
all the rights and remedies of a secured party under the UCC or other
applicable law, and the Trustee may also upon obtaining possession of the
Collateral as set forth herein, without notice to the Company except as
specified below, sell the Collateral or any part thereof in one or more parcels
at public or private sale, at any exchange, broker's board or at any of the
Trustee's offices or elsewhere, for cash, on credit or for future delivery, and
upon such other terms as
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the Trustee may deem commercially reasonable. The Company acknowledges and
agrees that any such private sale may result in prices and other terms less
favorable to the seller than if such sale were a public sale. The Company
agrees that, to the extent notice of sale shall be required by law, at least
ten (10) days' notice to the Company of the time and place of any public sale
or the time after which any private sale is to be made shall constitute
reasonable notification. The Trustee shall not be obligated to make any sale
regardless of notice of sale having been given. The Trustee may adjourn any
public or private sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(f) If at any time the Escrow Agent shall receive an
"entitlement order" (within the meaning of Section 8-102(a)(8) of the Revised
UCC) issued by the Trustee and relating to the Securities Account, the Escrow
Agent shall comply with such entitlement order without further consent by the
Company or any other person.
7. TERMINATION. This Agreement shall terminate
automatically ten (10) days following disbursement of all funds remaining in
the Escrow Account (including U.S. Government Securities), unless sooner
terminated by agreement of the parties hereto (in accordance with the terms
hereof and not in violation of the Indenture; provided, that the Trustee may
not agree to terminate unless it has received the consent of 100% of the
holders of all of the Securities outstanding); provided, however, that the
obligations of the Company under Section 2(c) and Section 5 (and any existing
claims thereunder) shall survive termination of this Agreement and the
resignation of the Escrow Agent; provided, further, however, that until such
tenth day, the Company will cause this Agreement (or any permitted successor
agreement) to remain in effect and will cause there to be an escrow agent
(including any permitted successor thereto) acting hereunder (or under any such
permitted successor agreement).
8. MISCELLANEOUS.
(a) Waiver. Any party hereto may specifically waive any
breach of this Agreement by any other party, but no such waiver shall be deemed
to have been given unless such waiver is in writing, signed by the waiving
party and specifically designating the breach waived, nor shall any such waiver
constitute a continuing waiver of similar or other breaches.
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(b) Invalidity. If for any reason whatsoever any one or
more of the provisions of this Agreement shall be held or deemed to be
inoperative, unenforceable or invalid in a particular case or in all cases,
such circumstances shall not have the effect of rendering any of the other
provisions of this Agreement inoperative, unenforceable or invalid, and the
inoperative, unenforceable or invalid provision shall be construed as if it
were written so as to effectuate, to the maximum extent possible, the parties'
intent.
(c) Assignment. This Agreement is personal to the
parties hereto, and the rights and duties of any party hereunder shall not be
assignable except with the prior written consent of the other parties.
Notwithstanding the foregoing, this Agreement shall inure to and be binding
upon the parties and their successors and permitted assigns.
(d) Benefit. The parties hereto and their successors and
permitted assigns, but no others, shall be bound hereby and entitled to the
benefits hereof; provided, however, that the Beneficiaries (including holders
of the Securities) and their assigns shall be entitled to the benefits hereof
and to enforce this Agreement.
(e) Time. Time is of the essence with respect to each
provision of this Agreement.
(f) Entire Agreement; Amendments. This Agreement and the
Indenture contain the entire agreement among the parties with respect to the
subject matter hereof and supersede any and all prior agreements,
understandings and commitments, whether oral or written. This Agreement may be
amended only in accordance with Article Nine of the Indenture and further by a
writing signed by a duly authorized representative of each party hereto.
(g) Notices. All notices and other communications
required or permitted to be given or made under this Agreement shall be in
writing and shall be deemed to have been duly given and received when actually
received, including: (a) on the day of hand delivery; (b) three business days
following the day sent, when sent by United States certified mail, postage and
certification fee prepaid, return receipt requested, addressed as set forth
below; (c) when
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transmitted by telecopy with verbal confirmation of receipt by the telecopy
operator to the telecopy number set forth below; or (d) one business day
following the day timely delivered to a next-day air courier addressed as set
forth below:
To Escrow Agent:
First Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Department
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Delivery Instructions:
First Bank National Association
Cash Wire: ABA #000-000-000
For Further Credit to:
First Trust National Association
Account #180121167365
Corporate Trust #47300017
Attn: Xxx Xxxxxx
Re: 33-357210 Verio Inc.
To Trustee:
First Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Department
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
To the Company:
Verio Inc.
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
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or at such other address as the specified entity most recently may have
designated in writing in accordance with this Section.
(h) Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
(i) Captions. Captions in this Agreement are for
convenience only and shall not be considered or referred to in resolving
questions of interpretation of this Agreement.
(j) Choice of Law. The existence, validity,
construction, operation and effect of any and all terms and provisions of this
Agreement shall be determined in accordance with and governed by the laws of
the State of Colorado, without regard to principles of conflicts of laws,
except to the extent United States federal law is applicable to the perfection
and priority of security interests in U.S. Government Securities. The parties
to this Agreement hereby agree that jurisdiction over such parties and over the
subject matter of any action or proceeding arising under this Agreement may be
exercised by a competent Court of the State of Colorado, or by a United States
Court, sitting in Colorado. The Company hereby submits to the personal
jurisdiction of such courts, hereby waives personal service of process upon it
and consents that any such service of process may be made by certified or
registered mail, return-receipt requested, directed to the Company at its
address last specified for notices hereunder, and service so made shall be
deemed completed five (5) days after the same shall have been so mailed, and
hereby waives the right to a trial by jury in any action or proceeding with the
Escrow Agent. All actions and proceedings brought by the Company against the
Escrow Agent relating to or arising from, directly or indirectly, this
Agreement shall be litigated only in courts within the State of Colorado.
(k) Representations and Warranties. (i) The Company
hereby represents and warrants that this Agreement has been duly authorized,
executed and delivered on its behalf and constitutes the legal, valid and
binding obligation of the Company. The execution, delivery and performance of
this Agreement by the Company does not violate any applicable law or regulation
to which the Company is subject and does not require the consent of any
governmental or other regulatory body to which the Company is subject, except
for such consents and approvals as have been obtained and are in full force and
effect.
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(ii) Each of the Escrow Agent and the Trustee hereby
represents and warrants that this Agreement has been duly authorized, executed
and delivered on its behalf and constitutes its legal, valid and binding
obligation.
19
IN WITNESS WHEREOF, the parties have executed and delivered
this Escrow Agreement as of the day first above written.
ESCROW AGENT: FIRST TRUST NATIONAL ASSOCIATION,
as Escrow Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Trust Officer
TRUSTEE: FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Trust Officer
COMPANY: VERIO INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxx Xxxxxxxx
Title: Vice President, General
Counsel and Secretary
