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Exhibit 10.7
EXECUTION COPY
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
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TABLE OF CONTENTS
PAGE
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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
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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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
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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.
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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
document in substitution or replacement of any of the foregoing;
(e) unless the context clearly intends to the contrary,
pronouns having a masculine or feminine gender shall be deemed to include the
other; and
(f) any reference to any Person shall include its successors
and assigns.
"ACCOUNT COLLATERAL" means all cash, investments and
securities at any time on deposit in the Disbursement Account, including the
Pledged Securities, and also including all income or gain earned therefrom and
any proceeds thereof.
"CASH EQUIVALENTS" has the meaning assigned to such term in
the Indenture, dated as of the date hereof, between the Company and Wilmington
Trust Company, as trustee, as the same may be amended, supplemented or otherwise
modified from time to time.
"CERTIFICATE OF AUTHORIZATION" has the meaning specified in
Section 3.3(a).
"C&MA" has the meaning assigned to such term in the Security
Agreement.
"COLLATERAL" has the meaning assigned to such term in the
Security Agreement.
"DISBURSEMENT ACCOUNT" has the meaning specified in Section
2.2.
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"DISBURSEMENT AMOUNT" means the aggregate amount of a
requested disbursement from the Disbursement Account under Section 3.3(a).
"DISBURSEMENT DATE" means the date of a requested disbursement
from the Disbursement Account under Section 3.3(a).
"DISBURSEMENT FUNDS" means the funds on deposit from time to
time in the Disbursement Account that may only be utilized as specified in
Section 3.2 of this Agreement.
"FINANCIAL ASSETS" has the meaning specified in Section 3.8.
"INDEMNIFIED DEPOSITARY AGENT PARTY" has the meaning specified
in Section 5.2.
"NETWORK O&M COSTS" has the meaning assigned to such term in
Section 10.1 of the C&MA.
"PHASE II UPGRADE RFS DATE" means the date upon which (a) the
Phase II Upgrade will be available for commercial service and (b) the Company
has Allocated Capacity in excess of one hundred seventy (170) STM-1's.
"PHASE II UPGRADE" means the upgrade of the Network (as
defined in the C&MA) to its Interim Equipped Capacity (as defined in the C&MA as
of the date hereof).
"PLEDGED SECURITIES" means securities (i) issued or directly
and fully guaranteed or insured by the United States government or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than six
months from the date of acquisition, or (ii) interests in money market mutual
funds which invest solely in assets or securities of the type described in
clause (i) above, including Wilmington U.S. Government Portfolio/Service Class
Shares.
"SCHEDULED PHASE II UPGRADE PAYMENTS" has the meaning
specified in Section 3.2(a).
"SECURED PARTY" shall have the meaning set forth in that
certain Pledge and Security Agreement, dated as of the date hereof, among the
Company, as grantor, the Initial Purchaser and the Trustee.
"TERMINATION DATE" has the meaning specified in Section 2.4.
"UCC" has the meaning specified in Section 3.8.
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ARTICLE II.
APPOINTMENT OF DEPOSITARY AGENT; ESTABLISHMENT OF DISBURSEMENT ACCOUNT
SECTION 2.1. ACCEPTANCE OF APPOINTMENT OF DEPOSITARY AGENT.
(a) The Depositary Agent hereby agrees to act as such and to
accept all cash, payments, other amounts and Pledged Securities to be delivered
to or held by the Depositary Agent pursuant to the terms of this Depositary
Agreement. The Depositary Agent shall hold and safeguard the Disbursement
Account during the term of this Depositary Agreement and shall treat the cash,
instruments and securities deposited in the Disbursement Account as monies,
instruments and securities pledged by the Company to the Trustee for the benefit
of the Holders to be held in the custody of the Depositary Agent, as agent for
the Trustee. In performing its functions and duties under this Depositary
Agreement, the Depositary Agent shall act as agent for the Trustee and, except
in such capacity, does not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for the Company.
(b) The Company shall not have any rights against or to monies
held in the Disbursement Account, as third party beneficiary or otherwise,
except (i) the right to receive or make requisitions of monies held in the
Disbursement Account, as permitted by this Depositary Agreement, and (ii) the
right to request the manner of the investment of monies held in the Disbursement
Account as provided for in Section 3.5 hereof.
SECTION 2.2. ESTABLISHMENT OF DISBURSEMENT ACCOUNT. The
Company hereby establishes the following securities account with the Depositary
Agent, as Securities Intermediary at its offices at Rodney Square North, 1100
North Market Street, Wilmington, DE 19890 (the "DISBURSEMENT ACCOUNT"), which
shall be subject to the terms hereof and maintained at all times until the
termination of this Depositary Agreement:
Disbursement Account, Account No. 56113-0.
All amounts from time to time held in the Disbursement Account
(which for purposes of this Agreement shall include all sub-accounts thereof)
shall be held in the name of the Company. All such amounts shall be held by the
Depositary Agent for the purposes and on the terms set forth in this Depositary
Agreement, shall constitute a part of the Collateral and shall not constitute
payment of the Obligations until applied as hereinafter provided.
SECTION 2.3. SECURITY INTEREST.
(a) DISBURSEMENT ACCOUNT. As collateral security for the
prompt payment and performance when due of the Obligations, the Company has,
pursuant to the Security Agreement, granted to the Trustee, for the benefit of
the Holders, a security interest in the Collateral, including the Disbursement
Account and all Account Collateral at any time on deposit in the Disbursement
Account and all sub-accounts thereof.
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(b) CONTROL. The Depositary Agent and the Company agree that
the Depositary Agent shall accept instructions originated by the Trustee
directing disposition of the Account Collateral on deposit in the Disbursement
Account without further consent of the Company.
SECTION 2.4. TERMINATION. This Depositary Agreement shall
remain in full force and effect until the earlier of (x) after the Phase II
Upgrade RFS Date, the date upon which there is no Account Collateral in the
Disbursement Account and (y) the date upon which all Obligations have been paid
in full (the "TERMINATION DATE"). Upon the occurrence of the Termination Date,
after notice to the Depositary Agent by the Trustee, the Disbursement Funds, if
any, shall be made available to the Company. Upon delivery of such notice to the
Depositary Agent, this Depositary Agreement shall automatically terminate and,
except as expressly provided herein, be of no further force and effect.
ARTICLE III.
THE DISBURSEMENT FUNDS
SECTION 3.1. ADDITIONS TO DISBURSEMENT ACCOUNT. On the Issue
Date or shortly thereafter, the Company shall deposit into the Disbursement
Account an amount equal to the aggregate principal amount of the Notes, which
amount shall be invested as provided for in Section 3.5 hereof. After the Issue
Date, the Company shall deposit into the Disbursement Account amounts from time
to time as required by Section 5.24 of the Indenture.
SECTION 3.2. USE OF PROCEEDS. The Disbursement Funds shall
only be used as follows: (a) until such time as the Phase II Upgrade RFS Date
has occurred and reasonably satisfactory evidence of same has been provided to
the Trustee and the Initial Purchaser, the Disbursement Funds shall be used to
pay the monetary obligations due under the C&MA in connection with the Phase II
Upgrade, including to the extent specifically set forth on Schedule I attached
hereto (the "SCHEDULED PHASE II UPGRADE PAYMENTS") or to pay Network O&M Costs,
and (b) after the occurrence of the Phase II Upgrade RFS Date, the Disbursement
Funds shall be used to pay Network O&M Costs or to finance all or part of the
cost of the engineering, construction, installation, acquisition, lease,
development or improvement of any, Telecommunications Assets in accordance with
Section 5.23 of the Indenture and Section 2.3 of the Note Purchase Agreement.
SECTION 3.3. REQUESTED DISBURSEMENTS FROM DISBURSEMENT
ACCOUNT.
(a) DISBURSEMENT REQUEST. If the Company desires to request a
disbursement from the Disbursement Account, then on the date three Business Days
prior to the date of the requested disbursement, the Company shall deliver to
the Depositary Agent, the Initial Purchaser and the Trustee a duly completed
certificate, in the form of the attached EXHIBIT A (each such certificate, a
"CERTIFICATE OF AUTHORIZATION").
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(b) CONDITIONS TO DISBURSEMENT: The Depositary Agent shall not
disburse the funds requested by the Company in its Certificate of Authorization
until the following conditions precedent are satisfied, as determined by the
Trustee, as reasonably and promptly in good faith directed by the Initial
Purchaser:
(i) the use of the proceeds of the requested disbursement
complies with the terms of Section 3.2;
(ii) no Event of Default under Sections 7.01(f) or 7.01(g) of
the Indenture has occurred or is in existence or will occur after
giving effect to the requested disbursement; and
(iii) the Trustee and the Initial Purchaser shall have
received reasonably acceptable evidence of amounts due in connection
with the requested disbursement if such disbursement is being requested
to make a payment in connection with the Phase II Upgrade, but such
payment is not a Scheduled Phase II Upgrade Payment; and
(iv) all representations and warranties contained in the
Security Documents shall be true and correct as of the Disbursement
Date with the same effect as though made on and as of the Disbursement
Date.
(c) AFFIRMATION. Any request for a disbursement hereunder
shall constitute a representation and warranty that (x) all representations and
warranties contained in the Security Documents are true and correct as of the
Disbursement Date with the same effect as though made on and as of the
Disbursement Date, (y) no Event of Default under Sections 7.01(f) or 7.01(g) of
the Indenture has occurred or is in existence or will occur after giving effect
to the requested disbursement and (z) the use of the proceeds of the requested
disbursement complies with the terms of Section 3.2.
(d) DISBURSEMENT. Upon satisfaction of the conditions set
forth in clause (b) above for a requested disbursement, on the Disbursement Date
for such requested disbursement, the Depositary Agent shall, in accordance with
the Certificate of Authorization and at the direction of the Trustee, disburse
the Disbursement Amount to the Company.
SECTION 3.4. MAXIMUM AMOUNT OF DISBURSEMENT. Notwithstanding
anything to the contrary contained in this Article III, if as of any
Disbursement Date, the aggregate amount of the disbursement under Section 3.3(d)
to be made on such Disbursement Date is greater than the amount of funds in the
Disbursement Account, then the amount of such disbursement shall be reduced to
the amount of funds in the Disbursement Account.
SECTION 3.5. INVESTMENT OF DISBURSEMENT FUNDS. Monies held in
the Disbursement Account created by and held under this Depositary Agreement
shall be invested and reinvested in Pledged Securities at the written request
(which may be in the form of a standing instruction) of the Company, which
request has been consented to in writing by the Trustee. If at any time cash in
an aggregate amount greater than $100,000
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is held in the Disbursement Account, the Depositary Agent shall invest, without
further instruction, such cash in the Wilmington U.S. Government
Portfolio/Service Class Shares, or if such fund is no longer in existence, Cash
Equivalents and Pledged Securities, as directed in writing by the Company. The
Depositary Agent shall at any time and from time to time liquidate any or all of
such investments prior to the maturity as needed in order to effect the
transfers and withdrawals contemplated by this Depositary Agreement. In the
event any such investments are redeemed prior to the maturity thereof, the
Depositary Agent shall not be liable for any loss or penalties relating thereto
in the absence of gross negligence or willful misconduct. Any income or gain
realized from such investments with respect to the Account Collateral shall be
deposited into the Disbursement Account. Any loss with respect to the Account
Collateral shall be charged to the Disbursement Account. The Depositary Agent
shall not be liable for any such loss other than by reason of its willful
misconduct or gross negligence. For purposes of any income tax payable on
account of any income or gain on an investment, such income or gain shall be for
the account of the Company.
SECTION 3.6. ACCOUNT BALANCE STATEMENTS. The Depositary Agent
shall, on a monthly basis and at such other times as the Trustee, the Initial
Purchaser or the Company may from time to time reasonably request, provide fund
balance statements to (i) the Trustee, (ii) the Initial Purchaser and (iii) the
Company. Such balance statements shall also include deposits, withdrawals and
transfers to and from the Disbursement Account.
SECTION 3.7. EVENTS OF DEFAULT. On and after any date on which
the Depositary Agent receives written notice from the Trustee or the Initial
Purchaser that any Event of Default has occurred and is continuing, the
Depositary Agent shall render an accounting of all monies in the Disbursement
Account as of the date of delivery of such notice to the Trustee, the Initial
Purchaser and the Company and shall thereafter, upon instruction by the Trustee
or the Initial Purchaser, distribute all Disbursement Funds then held in the
Disbursement Account to the Trustee.
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SECTION 3.8. SECURITIES INTERMEDIARY. The Securities
Intermediary hereby agrees and confirms that it has established the Disbursement
Account as set forth and defined in the Depositary Agreement. The Securities
Intermediary agrees that (i) the Disbursement Account established by the
Securities Intermediary is and will be maintained as a "securities account"
(within the meaning of Section 8-501 of the Uniform Commercial Code as adopted
and in effect in the State of New York (the "UCC")); (ii) the Company is an
"entitlement holder" (within the meaning of Section 8-102(a)(7) of the UCC) in
respect of the "financial assets" (within the meaning of Section 8-102(a)(9) of
the UCC, the "FINANCIAL ASSETS") credited to the Disbursement Account; (iii) all
Financial Assets in registered form or payable to or to the order of and
credited to the Disbursement Account shall be registered in the name of, payable
to or to the order of, or specially endorsed to, the Securities Intermediary or
in blank, or credited to another securities account maintained in the name of
the Securities Intermediary, and in no case will any Financial Asset credited to
the Disbursement Account be registered in the name of, payable to or to the
order of, or endorsed to the Company, except to the extent the foregoing have
been subsequently endorsed by the Company to the Securities Intermediary or in
blank. Each item of property (including a security, security entitlement,
investment property, instrument or obligation, share, participation, interest or
other property whatsoever) credited to the Disbursement Account shall be treated
as a Financial Asset. Until this Depositary Agreement shall terminate in
accordance with the terms hereof, the Trustee shall have "control" (within the
meaning of Section 8-106(d)(2) of the UCC) of each of the Company's "security
entitlements" (within the meaning of Section 8-102(a)(17) of the UCC) with
respect to the Financial Assets credited to the Disbursement Account. All
property delivered to the Securities Intermediary pursuant to this Depositary
Agreement will be promptly credited to the Disbursement Account if allocated for
payment on the Obligations.
SECTION 3.9. SECURITIES ACCOUNT. As long as the Disbursement
Account and the Account Collateral are pledged to the Trustee: (i) the
Securities Intermediary will not invade the Account Collateral to cover margin
debits or calls in any other accounts of the Company and (ii) the Securities
Intermediary agrees that, except for Liens resulting from customary commissions,
fees, or charges based upon transactions in the Disbursement Account, it
subordinates in favor of the Trustee any security interest, lien or right of
setoff the Securities Intermediary may have. The Securities Intermediary
acknowledges that it has not received notice of any other security interest in
the Disbursement Account or the Account Collateral. In the event any such notice
is received, the Securities Intermediary will promptly notify the Trustee and
the Initial Purchaser.
ARTICLE IV.
DEPOSITARY AGENT
SECTION 4.1. APPOINTMENT OF DEPOSITARY AGENT, POWERS AND
IMMUNITIES. The Trustee on behalf of the holders of the Notes hereby appoints
the Depositary Agent to act as its agent hereunder, with such powers as are
expressly delegated to the Depositary Agent by the terms of this Depositary
Agreement together
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with such other powers as are reasonably incidental thereto. The Depositary
Agent shall not have any duties or responsibilities except those expressly set
forth in this Depositary Agreement. Without limiting the generality of the
foregoing, the Depositary Agent shall take all actions as the Trustee or the
Initial Purchaser shall direct it to perform in accordance with the provisions
of this Depositary Agreement. Notwithstanding anything to the contrary contained
herein, the Depositary Agent shall not be required to take any action which is
contrary to this Depositary Agreement or applicable law. Neither the Depositary
Agent nor any of its Affiliates shall be responsible to the Trustee or the
Holders for any recitals, statements, representations or warranties made by the
Company contained in this Depositary Agreement or any certificate or other
document referred to or provided for in, or received by the Depositary Agent or
the Trustee, as applicable, under this Depositary Agreement or the Indenture,
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Depositary Agreement or any other document referred to or
provided for herein or therein or for any failure by the Company to perform its
obligations hereunder or thereunder. The Depositary Agent shall not be required
to ascertain or inquire as to the performance by the Company of any of its
obligations under the Indenture, this Depositary Agreement or any other document
or agreement contemplated hereby or thereby. Except as otherwise provided under
this Depositary Agreement, the Depositary Agent shall take action under this
Depositary Agreement only as it shall be directed in writing by the Trustee.
Whenever in the administration of this Depositary Agreement the Depositary Agent
shall deem it necessary or desirable that a factual matter be proved or
established in connection with the Depositary Agent taking, suffering or
omitting to take any action hereunder, such matter (unless other evidence in
respect thereof is herein specifically prescribed) may be deemed to be
conclusively proved or established by a Certificate of Authorization of the
Company or a Trustee's certificate, if appropriate. The Depositary Agent shall
have the right at any time to seek instructions concerning the administration of
this Depositary Agreement from the Trustee or any court of competent
jurisdiction. The Depositary Agent shall have no obligation to expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder.
SECTION 4.2. RELIANCE BY DEPOSITARY AGENT. The Depositary
Agent shall be entitled to rely upon and shall not be bound to make any
investigation into the facts or matters stated in any Certificate of
Authorization of the Company, Trustee's certificate or any other certificate,
notice or other document (including any cable, telegram, telecopy or telex)
reasonably believed by it to be genuine and to have been signed or sent by or on
behalf of the proper Person or Persons, and upon advice and statement of legal
counsel, independent accountants and other experts selected by the Depositary
Agent and shall have no liability for its actions taken thereupon, unless due to
the Depositary Agent's willful misconduct or gross negligence. Without limiting
the foregoing, the Depositary Agent shall be required to make disbursements only
as set forth herein. The Depositary Agent shall be fully justified in failing or
refusing to take any action under this Depositary Agreement (i) if such action
would, in the reasonable opinion of the Depositary Agent, be contrary to
applicable law or the terms of this Depositary Agreement, (ii) if such action is
not specifically provided for in this Depositary Agreement, and it shall not
have received any such advice or concurrence of the Trustee or the Company, as
applicable, as it deems appropriate or (iii) if, in
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connection with the taking of any such action that would constitute an exercise
of remedies under this Depositary Agreement (whether such action is or is
intended to be an action of the Depositary Agent or the Trustee), it shall not
first be indemnified to its satisfaction by the holders of the Notes (other than
the Trustee (in its individual capacity)), as applicable, against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Depositary Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Depositary
Agreement in accordance with a request of the Trustee (to the extent that the
Trustee is expressly authorized to direct the Depositary Agent to take or
refrain from taking such action), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the holders of the
Notes.
SECTION 4.3. COURT ORDERS. The Depositary Agent is hereby
authorized, in its exclusive discretion, to obey and comply with all writs,
orders, judgments or decrees issued by any court or administrative agency
affecting any money, documents or things held by the Depositary Agent. The
Depositary Agent shall not be liable to any of the parties hereto, the holders
of the Notes, their successors, heirs or personal representatives by reason of
the Depositary Agent's compliance with such writs, orders, judgments or decrees,
notwithstanding that such writ, order, judgment or decree is later reversed,
modified, set aside or vacated.
SECTION 4.4. RESIGNATION OR REMOVAL. Subject to the
appointment and acceptance of a successor Depositary Agent as provided below,
the Depositary Agent may resign at any time by giving thirty (30) days' written
notice thereof to each of the Trustee and the Company; PROVIDED that in the
event the Depositary Agent is also the Trustee, it must at the same time resign
as Trustee. The Depositary Agent may be removed at any time with cause by the
Trustee. The Company shall have the right to remove the Depositary Agent upon
thirty (30) days' notice to the Trustee and the Initial Purchaser with or
without cause, effective upon the appointment of a successor Depositary Agent
under this Section 4.4, which is reasonably acceptable to the Trustee and the
Initial Purchaser. In the event that the Depositary Agent shall decline to take
any action without first receiving adequate indemnity from any of the Company or
Trustee, as the case may be and, having received an indemnity, shall continue to
decline to take such action, the Trustee shall be deemed to have sufficient
cause to remove the Depositary Agent. Upon any such resignation or removal, the
Trustee shall have the right to appoint a successor Depositary Agent, which
Depositary Agent shall be reasonably acceptable to the Company. If no successor
Depositary Agent shall have been appointed by the Trustee and shall have
accepted such appointment within thirty (30) days after the retiring Depositary
Agent's giving of notice of resignation or the removal of the retiring
Depositary Agent, then the retiring Depositary Agent may appoint a successor
Depositary Agent, which shall be a bank or trust company reasonably acceptable
to each of the Trustee and the Company. Upon the acceptance of any appointment
as Depositary Agent hereunder by the successor Depositary Agent, (a) such
successor Depositary Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Depositary Agent, and
the retiring Depositary Agent shall be discharged from its duties and
obligations hereunder and (b) the retiring Depositary Agent shall promptly
transfer the Disbursement Account within its possession or control to the
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possession or control of the successor Depositary Agent and shall execute and
deliver such notices, instructions and assignments as may be necessary or
desirable to transfer the rights of the Depositary Agent with respect to the
Disbursement Account to the successor Depositary Agent. After the retiring
Depositary Agent's resignation or removal hereunder as Depositary Agent, the
provisions of this Article IV and of Article V shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Depositary Agent.
ARTICLE V.
EXPENSES; INDEMNIFICATION; FEES
SECTION 5.1. EXPENSES. The Company agrees to pay or reimburse
all out-of-pocket expenses of the Depositary Agent (including, without
limitation, reasonable fees and expenses for legal services) in respect of, or
incident to, the administration or enforcement of any of the provisions of this
Depositary Agreement or in connection with any amendment, waiver or consent
relating to this Depositary Agreement.
SECTION 5.2. INDEMNIFICATION. The Company agrees to indemnify
the Depositary Agent in its capacity as such, and, in their capacity as such,
its officers, directors, shareholders, controlling persons, employees, agents
and servants (each an "INDEMNIFIED DEPOSITARY AGENT PARTY") from and against any
and all claims, losses, liabilities and expenses (including the reasonable fees
and expenses of counsel) growing out of or resulting from this Depositary
Agreement (including, without limitation, performance under or enforcement of
this Depositary Agreement, but excluding any such claims, losses or liabilities
resulting from the Indemnified Depositary Agent Party's gross negligence or
willful misconduct). This indemnity shall survive the termination of this
Depositary Agreement, and the resignation or removal of the Depositary Agent.
SECTION 5.3. FEES. On the Issue Date, and on each anniversary
of the Issue Date to and including the Termination Date, the Company shall pay
the Depositary Agent an annual fee in an amount mutually agreed on by the
Company and the Depositary Agent.
SECTION 5.4. SURVIVAL. The provisions of Section 5.1 and 5.2
of this Agreement shall survive the termination of this Agreement.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.1. AMENDMENTS; ETC. No amendment or waiver of any
provision of this Depositary Agreement nor consent to any departure by the
Company herefrom shall in any event be effective unless the same shall be in
writing and signed by each of the Trustee, the Depositary Agent and the Company.
Any such amendment,
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waiver or consent shall be effective only in the specific instance and for the
specified purpose for which given.
SECTION 6.2. ADDRESSES FOR NOTICES. All notices, requests and
other communications provided for hereunder shall be in writing and, except as
otherwise required by the provisions of this Depositary Agreement, shall be
sufficiently given and shall be deemed given when delivered or mailed by
registered or certified mail, postage prepaid, or sent by overnight delivery,
telecopy, telegram or telex, addressed to the parties as follows:
COMPANY: Metromedia Fiber Network, Inc.
c/o Metromedia Company
One Meadowlands Plaza
East Rutherford, New Jersey 07073-2137
Attn: David Persing, Esq.
Telecopy Number: (201) 531-2803
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attn: Douglas A. Cifu, Esq.
Telecopy Number: (212) 757-3990
TRUSTEE: Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attn: Corporate Trust Division/Metromedia Fiber
Telecopy Number: (302) 651-8882
with a copy to
Winston & Strawn
200 Park Avenue
New York, New York 10166-4193
Attn: Jeffrey H. Elkin, Esq.
Telecopy Number: (212) 294-4700
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INITIAL PURCHASER: Verizon Investments Inc.
3900 Washington Street, 2nd Floor
Wilmington, Delaware 19802
Attn: President
Telecopy Number: (302) 761-4228
with a copy to
Verizon Communications Inc.
1095 Avenue of the Americas
New York, New York 10036
Attn: Associate General Counsel-
Strategic Transactions
Telecopy Number: (212) 764-2739
and
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: Frederick S. Green, Esq.
Telecopy Number: (212) 310-8007
DEPOSITARY AGENT: Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attn: Corporate Trust Division/ Metromedia Fiber
Telecopy Number: (302) 651-8882
with a copy to
Winston & Strawn
200 Park Avenue
New York, New York 10166-4193
Attn: Jeffrey H. Elkin, Esq.
Telecopy Number: (212) 294-4700
Any and all notices to the Trustee or Depository Agent shall only be
effective upon receipt.
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SECTION 6.3. GOVERNING LAW; TERMS.
(a) THIS DEPOSITARY AGREEMENT AND THE DISBURSEMENT ACCOUNT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, AND ANY DISPUTE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE COMPANY, THE DEPOSITARY
AGENT, THE TRUSTEE, THE INITIAL PURCHASER AND THE OTHER HOLDERS IN CONNECTION
WITH THIS DEPOSITARY AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY OR
OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. REGARDLESS OF ANY PROVISION IN ANY OTHER AGREEMENT, FOR PURPOSES OF THE
UCC SHALL BE DEEMED TO BE THE SECURITIES INTERMEDIARY'S JURISDICTION AS DEFINED
IN SECTIONS 9-305(e) AND 8-110(e) OF THE UCC AND THE DISBURSEMENT ACCOUNT (AS
WELL AS ANY SECURITIES ENTITLEMENTS RELATED THERETO) SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
(b) EACH OF THE PARTIES HERETO SUBMITS TO THE JURISDICTION OF
ANY NEW YORK COURT AND TO THE COURTS OF ITS CORPORATE DOMICILE WITH RESPECT TO
ANY ACTIONS BROUGHT AGAINST IT AS DEFENDANT IN ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THE COMPANY, THE DEPOSITARY AGENT, THE TRUSTEE, THE INITIAL
PURCHASER AND THE OTHER HOLDERS OF THE NOTES IN CONNECTION WITH THIS DEPOSITARY
AGREEMENT, AND EACH OF THE PARTIES HERETO WAIVES ANY OBJECTION THAT IT MAY HAVE
TO THE LAYING OF VENUE, INCLUDING ANY PLEADING OF FORUM NON CONVENIENS, WITH
RESPECT TO ANY SUCH ACTION AND WAIVES ANY RIGHT TO WHICH IT MAY BE ENTITLED ON
ACCOUNT OF PLACE OF RESIDENCE OR DOMICILE.
SECTION 6.4. HEADINGS. Headings used in this Depositary
Agreement are for convenience of reference only and do not constitute part of
this Depositary Agreement for any purpose.
SECTION 6.5. NO THIRD PARTY BENEFICIARIES. The agreements of
the parties hereto are solely for the benefit of the Company, the Trustee, the
Initial Purchaser, the Depositary Agent and the other Holders and their
respective successors and assigns and no other Person shall have any rights
hereunder.
SECTION 6.6. ENTIRE AGREEMENT. This Agreement together with
the Indenture and the other Security Documents represents the entire agreement
of the parties and supersedes all prior agreements and understandings relating
to the subject matter hereof.
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SECTION 6.7. NO WAIVER. No failure on the part of the
Depositary Agent, the Trustee, the Initial Purchaser or the other Holders or any
of their nominees or representatives to exercise, and no course of dealing with
respect to, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise by
the Depositary Agent, the Trustee, the Initial Purchaser or the other Holders or
any of their nominees or representatives of any right, power or remedy.
SECTION 6.8. SEVERABILITY. If any provision of this Depositary
Agreement or the application thereof shall be invalid or unenforceable to any
extent, (a) the remainder of this Depositary Agreement and the application of
such remaining provisions shall not be affected thereby and (b) each such
remaining provision shall be enforced to the greatest extent permitted by law.
SECTION 6.9. SUCCESSORS AND ASSIGNS. All covenants,
agreements, representations and warranties in this Depositary Agreement by
the Depositary Agent, the Initial Purchaser, the Trustee and the Company
shall bind and, to the extent permitted hereby, shall inure to the benefit of
and be enforceable by their respective successors and assigns, whether so
expressed or not.
SECTION 6.10. CERTAIN RIGHTS OF INITIAL PURCHASER. At such
time as the Initial Purchaser holds less than twenty-five percent (25%) of
the aggregate principal amount outstanding under the Notes, all obligations
of the Company and the Depositary Agent to the Initial Purchaser
(individually and not as a Secured Party in general) and all rights of the
Initial Purchaser (individually and not as a Secured Party in general)
hereunder shall automatically terminate.
SECTION 6.11. EXECUTION IN COUNTERPARTS. This Depositary
Agreement may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 6.12. CONSEQUENTIAL DAMAGES. In no event (other than
with respect to its own gross negligence or willful misconduct) shall the
Depositary Agent be liable for special, indirect or consequential loss or damage
of any kind whatsoever (including but not limited to lost profits), even if the
Depositary Agent has been advised of the likelihood of such loss or damage and
regardless of the form of action.
SECTION 6.13. INSTRUCTIONS. Any instructions given by the
Trustee to the Depositary Agent hereunder shall be in compliance with and for
the purposes expressly provided for in this Depositary Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this
Depositary Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first above written.
METROMEDIA FIBER NETWORK, INC.
a Delaware corporation
By: /s/ Nick Tanzi
-----------------------------------
Name: Nick Tanzi
-----------------------------------
Title: President & CEO
----------------------------------
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ James D. Nesci
-----------------------------------
Name: James D. Nesci
-----------------------------------
Title: Authorized Signer
----------------------------------
WILMINGTON TRUST COMPANY,
as Depositary Agent
By: /s/ James D. Nesci
-----------------------------------
Name: James D. Nesci
-----------------------------------
Title: Authorized Signer
----------------------------------
VERIZON INVESTMENTS INC.,
as Initial Purchaser
By: /s/ Phil Seskin
-----------------------------------
Name: Phil Seskin
-----------------------------------
Title: Senior Vice President
----------------------------------
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SCHEDULE I
[PAYMENT SCHEDULE FOR PHASE II UPGRADE]
S-1
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EXHIBIT A
FORM OF CERTIFICATE OF AUTHORIZATION
Wilmington Trust Company, as Depositary Agent
Rodney Square North
1100 North Market Street
Wilmington, DE 19890
Attn: Corporate Trust Division/Metromedia Fiber
Wilmington Trust Company, as Trustee
Rodney Square North
1100 North Market Street
Wilmington, DE 19890
Attn: Corporate Trust Division/Metromedia Fiber
Verizon Investments Inc., as Initial Purchaser
3900 Washington Street, 2nd Floor
Wilmington, Delaware 19802
Ladies and Gentlemen:
The undersigned, Metromedia Fiber Network, Inc. (the
"COMPANY"), refers to the Depositary Agreement, dated as of October 1, 2001,
among the Company, Wilmington Trust Company, as Trustee for the Holders, Verizon
Investments Inc., as Initial Purchaser and Wilmington Trust Company, as
Depositary Agent (the "DEPOSITARY AGREEMENT," the terms defined therein being
used herein as therein defined), hereby gives you irrevocable notice that the
undersigned hereby requests that a disbursement under Section 3.3(b) of the
Depositary Agreement be made, and in that connection sets forth below the
information relating to such disbursement as required by Section 3.3 of the
Depositary Agreement.
(i) The Disbursement Date is ______, 20__;
(ii) The Disbursement Amount is $_______; and
(iii) All of the conditions set forth in Section 3.3 of the
Depositary Agreement to the requested disbursement have been satisfied.
A-1
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Very truly yours,
Metromedia Fiber Network, Inc.
a Delaware corporation
By:
----------------------------
Name:
Title:
A-2