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Title: |
Depositary Agreement |
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Entities: |
AboveNet, Inc.; Verizon Communications Inc.; Paul, Weiss, Rifkind, Wharton & Garrison; Weil, Gotshal & Manges LLP; Winston & Strawn |
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Date: |
2001 |
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Size: |
Preview shows 10KB of 54KB total |
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Price: |
$37 |
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ID: |
#340475 |
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DEPOSITARY AGREEMENT
AMONG
METROMEDIA FIBER NETWORK, INC.,
WILMINGTON TRUST COMPANY,
AS TRUSTEE
ACTING ON BEHALF OF THE HOLDERS OF THE NOTES,
VERIZON INVESTMENTS INC.,
AND
WILMINGTON TRUST COMPANY,
AS DEPOSITARY AGENT
DATED AS OF OCTOBER 1, 2001
{Page}
TABLE OF CONTENTS
PAGE
----
ARTICLE I. Definitions.............................................1
SECTION 1.1. Capitalized Terms..............................1
SECTION 1.2. Definitions; Construction......................2
ARTICLE II. Appointment of Depositary Agent;
Establishment of Disbursement Account...................3
SECTION 2.1. Acceptance of Appointment of Depositary Agent..3
SECTION 2.2. Establishment of Disbursement Account..........4
SECTION 2.3. Security Interest..............................4
SECTION 2.4. Termination....................................4
ARTICLE III. The Disbursement Funds..................................5
SECTION 3.1. Additions to Disbursement Account..............5
SECTION 3.2. Use of Proceeds................................5
SECTION 3.3. Requested Disbursements From
Disbursement Account...........................5
SECTION 3.5. Investment of Disbursement Funds...............6
SECTION 3.6. Account Balance Statements.....................7
SECTION 3.7. Events of Default..............................7
SECTION 3.8. Securities Intermediary........................7
SECTION 3.9. Securities Account.............................8
ARTICLE IV. Depositary Agent........................................8
SECTION 4.1. Appointment of Depositary Agent, Powers and
Immunities.....................................8
SECTION 4.2. Reliance by Depositary Agent...................9
SECTION 4.3. Court Orders...................................9
SECTION 4.4. Resignation or Removal.........................9
ARTICLE V. Expenses; Indemnification; Fees........................10
SECTION 5.1. Expenses......................................10
SECTION 5.2. Indemnification...............................10
SECTION 5.3. Fees..........................................11
SECTION 5.4. Survival......................................11
ARTICLE VI. Miscellaneous..........................................11
SECTION 6.1. Amendments; Etc...............................11
i
{Page}
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
SECTION 6.2. Addresses for Notices.........................11
SECTION 6.3. Governing Law; Terms..........................13
SECTION 6.4. Headings......................................14
SECTION 6.5. No Third Party Beneficiaries..................14
SECTION 6.6. Entire Agreement..............................14
SECTION 6.7. No Waiver.....................................14
SECTION 6.8. Severability..................................14
SECTION 6.9. Successors and Assigns........................14
SECTION 6.10. Certain Rights of Initial Purchaser...........14
SECTION 6.11. Execution in Counterparts.....................14
SECTION 6.12. Consequential Damages.........................15
SECTION 6.13. Instructions..................................15
ii
{Page}
DEPOSITARY AGREEMENT
This DEPOSITARY AGREEMENT (this "DEPOSITARY AGREEMENT") dated
as of October 1, 2001 among Metromedia Fiber Network, Inc., a Delaware
corporation (the "COMPANY"), Wilmington Trust Company, solely in its capacity as
trustee (together with its successors and permitted assigns in such capacity,
the "TRUSTEE") for the benefit of the holders of the Notes (as defined below)
under the Indenture (as defined below), Verizon Investments Inc., a Delaware
corporation (the "INITIAL PURCHASER"), and Wilmington Trust Company, solely in
its capacity as depositary agent (together with its successors and permitted
assigns in such capacity, the "DEPOSITARY AGENT") and for purposes of Section
3.8 as securities intermediary (the "SECURITIES INTERMEDIARY") for the benefit
of the Holders.
RECITALS
A. Pursuant to that certain Indenture, dated as of the date
hereof (as it may be amended, modified and supplemented from time to time, the
"INDENTURE"), between the Company and the Trustee, the Company has agreed to
issue $50,000,000 in aggregate principal amount of its 8.5% Convertible Senior
Notes due 2011 (as amended, restated, modified, supplemented, replaced or
renewed from time to time, the "Notes").
B. The Trustee and the Company desire to appoint the
Depositary Agent as depositary agent to hold and administer money deposited in
the Disbursement Account (as defined below) established pursuant to this
Depositary Agreement and funded in an amount equal to the aggregate principal
amount of the Notes.
C. As security for its obligations under the Notes, the
Company desires to execute and deliver to the Trustee this Depositary Agreement,
in order to grant to the Trustee a perfected first priority security interest in
the Disbursement Account and the Account Collateral (as defined below), which
Account Collateral may only be used for the purposes set forth in Section 3.2.
below.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and in order
to induce the Holders of the Notes to purchase the Notes, and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. CAPITALIZED TERMS. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to them in the
Indenture.
{Page}
SECTION 1.2. DEFINITIONS; CONSTRUCTION. For all purposes of
this Depositary Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
(a) all terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all references in this Depositary Agreement to designated
"Articles," "Sections," "Exhibits" and other subdivisions are to the designated
Articles, Sections, Exhibits and other subdivisions of this Depositary
Agreement;
(c) the words "herein," "hereof' and "hereunder" and other
words of similar import refer to this Depositary Agreement as a whole and not to
any particular Article, Section or other subdivision;
(d) unless otherwise expressly specified, any agreement,
contract or document defined or referred to herein shall mean such agreement,
contract or document as in effect as of the date hereof, as the same may
thereafter be amended, restated, supplemented or otherwise modified from time to
time in accordance with the terms thereof including any agreement, contract or
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