[FROM OF PAYING AGENT AGREEMENT]
This PAYING AGENT AGREEMENT dated as of this [ ] day of
November, 1999 by and between The Bank of New York, a New York banking
corporation (the "PAYING AGENT"), and DECS Trust VI (such trust and the trustees
thereof acting in their capacity as such being referred to herein as the
"TRUST"), a statutory business trust organized under the Business Trust Act of
the State of Delaware pursuant to a Declaration of Trust dated as of October 22,
1999, as amended and restated as of November 9, 1999 (the "TRUST AGREEMENT").
WITNESSETH
WHEREAS the Trust is a non-diversified, closed-end management
investment company, as defined in the Investment Company Act of 1940 (the
"INVESTMENT COMPANY ACT"), formed to purchase and hold the U.S. treasury
securities (the "TREASURY SECURITIES"), to enter into and hold forward purchase
contracts with one or more existing shareholders of Metromedia Fiber Network,
Inc. (individually, a "CONTRACT" and collectively, the "CONTRACTS") and to issue
DECS to the public in accordance with the terms and conditions of the Trust
Agreement;
WHEREAS the Trustees desire to engage the services of the
Paying Agent to assume certain responsibilities and to perform certain duties as
the transfer agent, registrar and paying agent with respect to the DECS upon the
terms and conditions of this Agreement; and
WHEREAS the Paying Agent is qualified and willing to assume
such responsibilities and to perform such duties, subject to the supervision of
the Trustees, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. Capitalized terms not otherwise defined
herein shall have the respective meanings specified in the Trust Agreement.
ARTICLE II
PAYING AGENT
2.1 APPOINTMENT OF PAYING AGENT AND ACCEPTANCE. The Trust
Agreement provides that The Bank of New York shall act as the initial Paying
Agent. The Bank of New York hereby accepts such appointment and agrees to act in
accordance with its standard procedures and the provisions of the Trust
Agreement and the provisions set forth in this Article II as Paying Agent with
respect to the DECS. Without limiting the generality of the foregoing, The Bank
of New York, as Paying Agent, agrees that it shall establish and maintain the
Trust Account, subject to the provisions of Section 2.3 hereof.
2.2 CERTIFICATES AND NOTICES. The Trustees shall deliver to
the Paying Agent the certificates and notices required to be delivered to the
Paying Agent pursuant to the Trust Agreement, and the Paying Agent shall mail or
publish such certificates or notices as required by the Trust Agreement, but the
Paying Agent shall have no responsibility to confirm or verify the accuracy of
certificates or notices of the Trustees so delivered.
2.3 PAYMENTS AND INVESTMENTS. The Paying Agent shall make
payments out of the Trust Account as provided in Section 3.3 of the Trust
Agreement. The Paying Agent on behalf of the Trust shall effect the transactions
set forth in Sections 2.6, 2.7, 2.8, 3.5 and 8.3 of the Trust Agreement upon
instructions to do so from the Administrator (except that with respect to its
obligations under Section 8.3 of the Trust Agreement, the Paying Agent shall act
without instructions from the Administrator) and shall invest moneys on deposit
in the Trust Account in the Temporary Investments in accordance with Section 3.5
of the Trust Agreement. Except as otherwise specifically provided herein or in
the Trust Agreement, the Paying Agent shall not have the power to sell, transfer
or otherwise dispose of any Temporary Investment prior to the maturity thereof,
or to acquire additional Temporary Investments. The Paying Agent shall hold any
Temporary Investments to maturity and shall apply the proceeds thereof paid upon
maturity to the payment of the next succeeding Quarterly Distribution. All such
Temporary Investments shall be selected by the Trustees from time to time or
pursuant to standing instructions from the Trustees, and the Paying Agent shall
have no liability to the Trust or any Holder or any other Person with respect to
any such Temporary Investment.
2.4 INSTRUCTIONS FROM ADMINISTRATOR. The Paying Agent shall
execute all instructions received from an officer of the Administrator, except
to the extent that they conflict with or are contrary to the terms of the Trust
Agreement or this Agreement.
ARTICLE III
TRANSFER AGENT AND REGISTRAR
3.1 ORIGINAL ISSUE OF CERTIFICATES. On the date DECS sold
pursuant to the Underwriting Agreement are originally issued, certificates for
such DECS shall be issued by the Trust, and, at the request of the Trustees,
registered in such names and such denominations as the Underwriters shall have
previously requested of the Trustees, executed manually or in facsimile by the
Managing Trustee and countersigned by the Paying Agent. At no time shall the
aggregate number of DECS represented by such countersigned certificates exceed
the number of then outstanding DECS except as permitted by Section 3.4 hereof.
3.2 REGISTRY OF HOLDERS. The Paying Agent shall maintain a
registry of the Holders of the DECS.
3.3 REGISTRATION OF TRANSFER OF DECS. DECS shall be registered
for transfer or exchange, and new certificates shall be issued, in the name of
the designated transferee or transferees, upon surrender of the old certificates
in form deemed by the Paying Agent properly endorsed for transfer with (a) all
necessary endorsers' signatures guaranteed in such manner and form as the Paying
Agent may require by a guarantor reasonably believed by the Paying Agent to be
responsible, (b) such assurances as the Paying Agent shall deem necessary or
appropriate to
evidence the genuineness and effectiveness of each necessary endorsement and (c)
satisfactory evidence of compliance with all applicable laws relating to the
collection of taxes or funds necessary for the payment of such taxes.
3.4 LOST CERTIFICATES. If there shall be delivered to the
Paying Agent (a) evidence to its satisfaction of the destruction, loss or theft
of any certificate for DECS and (b) such security or indemnity as may be
required by it to hold it and any of its agents harmless, then, in the absence
of notice to the Paying Agent that such certificate has been acquired by a
protected purchaser, the Managing Trustee shall execute and upon its request the
Paying Agent shall countersign and deliver, in lieu of any such destroyed, lost
or stolen certificate, a new certificate of like tenor bearing a number not
contemporaneously outstanding. Any request by the Managing Trustee to the Paying
Agent to issue a replacement or new certificate pursuant to this Section 3.4
shall be deemed to be a representation and warranty by the Trust to the Paying
Agent that such issuance will comply with provisions of law, the Trust Agreement
and the resolutions adopted by the Trustees with respect to lost securities. If,
after the delivery of such new certificate, a protected purchaser of the
original certificate in lieu of which such new certificate was issued presents
for payment such original certificate, the Trust and the Paying Agent shall be
entitled to recover such new certificate from the person to whom it was
delivered or any transferee thereof, except a protected purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expense incurred by the Trust or the Paying
Agent in connection therewith. Upon the issuance of any new certificate under
this Section 3.4, the Trust and the Paying Agent may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Paying Agent) connected therewith.
3.5 TRANSFER BOOKS. The Paying Agent shall maintain the
transfer books listing the Holders of the DECS. In case of any written request
or demand for the inspection of the transfer books of the Trust or any other
books in the possession of the Paying Agent, the Paying Agent will notify the
Trustees and secure instructions as to permitting or refusing such inspection.
The Paying Agent reserves the right, however, to exhibit the transfer books or
other books to any person in case it is advised by its counsel that its failure
to do so would be unlawful.
3.6 DISPOSITION OF CANCELED CERTIFICATES, RECORDS. The Paying
Agent shall retain certificates which have been canceled in transfer or in
exchange and accompanying documentation in accordance with applicable rules and
regulations of the Commission for six calendar years from the date of such
cancellation, and shall make such records available during this period at any
time, or from time to time, for reasonable periodic, special, or other
examinations by representatives of the Commission and the Board of Governors of
the Federal Reserve System. Thereafter such records shall not be destroyed by
the Paying Agent but will be safely stored for possible future reference. In
case of any request or demand for the inspection of the register of the Trust or
any other books in the possession of the Paying Agent, the Paying Agent will
notify the Trustees and secure instructions as to permitting or refusing such
inspection. The Paying Agent reserves the right, however, to exhibit the
register or other records to any person in case it is advised by its counsel
that its failure to do so would (i) be unlawful, or
(ii) expose it to liability, unless the Trustees shall have offered
indemnification satisfactory to the Paying Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to the Paying Agent that:
(a) the Trust is a validly existing trust under the laws of
the State of Delaware and the Trustees have full power
under the Trust Agreement to execute and deliver this
Agreement and to authorize, create and issue the DECS;
(b) this Agreement has been duly and validly authorized,
executed and delivered by the Trust and constitutes the
valid and binding agreement of the Trust, enforceable
against the Trust in accordance with its terms, subject as
to such enforceability to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equitable principles;
(c) the form of the certificate evidencing the DECS complies
with all applicable laws of the State of Delaware and the
State of New York;
(d) the DECS have been duly and validly authorized, executed
and delivered by the Trust and are validly issued;
(e) the DECS have been registered under the Securities Act
of 1933, the Trust has been registered under the
Investment Company Act, and no further action by or before
any governmental body or authority of the United States or
of any state thereof is required in connection with the
execution and delivery of this Agreement or the issuance
of the DECS;
(f) the execution and delivery of this Agreement and the
issuance and delivery of the DECS do not and will not
conflict with, violate, or result in a breach of, the
terms, conditions or provisions of, or constitute a
default under, the Trust Agreement, any law or regulation,
any order or decree of any court or public authority
having jurisdiction over the Trust, or any mortgage,
indenture, contract, agreement or undertaking to which the
Trust is a party or by which it is bound; and
(g) no taxes are payable upon or in respect of the execution
of this Agreement or the issuance of the DECS.
ARTICLE V
DUTIES AND RIGHTS
5.1 DUTIES.
(a) The Paying Agent is acting solely as agent for the Trust
hereunder and owes no fiduciary duties to any other Person
by reason of this Agreement.
(b) In the absence of bad faith, gross negligence or willful
misfeasance on its part in the performance of its duties
hereunder or its reckless disregard of its duties and
obligations hereunder, the Paying Agent shall not be
liable for any action taken, suffered, or omitted in the
performance of its duties under this Agreement or in
accordance with any direction or request of the Managing
Trustee not inconsistent with the provisions of this
Agreement. The Paying Agent shall under no circumstances
be liable for any punitive, exemplary, indirect or
consequential damages hereunder.
5.2. RIGHTS.
(a) The Paying Agent may rely and shall be protected in
acting or refraining from acting upon any communication
authorized hereby and upon any written instruction,
notice, request, direction, consent, report, certificate,
share certificate or other instrument, paper or document
reasonably believed by it to be genuine. The Paying Agent
shall not be liable for acting upon any telephone
communication authorized hereby which the Paying Agent
believes in good faith to have been given by the Trustees.
(b) The Paying Agent may consult with legal counsel and the
advice of such counsel shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The Paying Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents
or attorneys appointed with due care by it hereunder.
5.3 DISCLAIMER. The Paying Agent makes no representations as
to (a) the first two recitals of this Agreement or (b) the validity or adequacy
of the DECS.
5.4 COMPENSATION, EXPENSES AND INDEMNIFICATION.
(a) The Paying Agent shall receive for all services rendered
by it under this Agreement and, upon the prior written
approval of the Trustees, for all expenses, disbursements
and advances incurred or made by the Paying Agent in
accordance with any provision of this Agreement (including
the reasonable compensation and the expenses and
disbursements of its agents and counsel), the compensation
set forth in Section 3.1 of the Administration Agreement.
(b) The Trust shall indemnify the Paying Agent for and hold
it harmless against any loss, liability, claim or expense
(including the costs of investigation, preparation for and
defense of legal and/or administrative
proceedings relating to a claim against it and reasonable
attorneys' fees and disbursements) arising out of or in
connection with the performance of its obligations under
this Agreement, provided such loss, liability or expense
is not the result of gross negligence, willful misfeasance
or bad faith on its part in the performance of its duties
hereunder or its reckless disregard of its duties or
obligations hereunder, including the costs and expenses of
defending itself against any claim or liability in
connection with its exercise or performance of any of its
duties or obligations hereunder and thereunder. The
indemnification provided by this Section 5.4(b) shall
survive the termination of this Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 TERM OF AGREEMENT.
(a) The term of this Agreement is unlimited unless
terminated as provided in this Section 6.1 or unless the
Trust is terminated, in which case this Agreement shall
terminate ten days after the date of termination of the
Trust. This Agreement may be terminated by either party
hereto without penalty upon 60 days' prior written notice
to the other party hereto; provided that neither party
hereto may terminate this Agreement pursuant to this
Section 6.1(a) unless a successor Paying Agent shall have
been appointed and shall have accepted the duties of the
Paying Agent. The termination of the Administration
Agreement or the resignation or removal of the Custodian
shall cause the termination of this Agreement
simultaneously therewith. If, within 30 days after notice
by the Paying Agent of termination of this Agreement, no
successor Paying Agent shall have been selected and
accepted the duties of the Paying Agent, the Paying Agent
may apply to a court of competent jurisdiction for the
appointment of a successor Paying Agent.
(b) Except as otherwise provided in this paragraph (b), the
respective rights and duties of the Trust and the Paying
Agent under this Agreement shall cease upon termination of
this Agreement. The Trust's representations, warranties,
covenants and obligations to the Paying Agent under
Sections 4 and 5.4 hereof shall survive the termination
hereof. Upon termination of the Agreement, the Paying
Agent shall, at the Trust's request, promptly deliver to
the Trust or to any successor Paying Agent as requested by
the Trust (i) copies of all books and records maintained
by it and (ii) any funds deposited with the Paying Agent
by the Trust.
6.2 COMMUNICATIONS. Except for communications authorized to be
made by telephone pursuant to this Agreement, all notices, requests and other
communications to any party hereunder shall be in writing (including telecopy or
similar writing) and given to such person at its address or telecopy number set
forth below:
DECS Trust VI
c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
If to the Trust, Telephone: 000-000-0000
addressed: Telecopier: 000-000-0000
with a copy to the Administrator if the duties of the Administrator are being
performed by a Person other than the Person performing the obligations of the
Paying Agent.
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx
If to the Paying Agent, Telephone: 000-000-0000
addressed: Telecopier: 000-000-0000
or such other address or telecopy number as such party may hereafter specify for
such purposes by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Trust by the Trustees (or by the
Administrator, provided that the Trust shall not have delivered to the Paying
Agent an instrument in writing revoking the authorization of the Administrator
to act for it pursuant hereto) and on behalf of the Paying Agent by a Senior
Vice President or Vice President of the Paying Agent assigned to its Corporate
Trust Department.
6.3 ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof, and there
are no other representations, endorsements, promises, agreements or
understandings, oral, written or inferred, between the parties relating to the
subject matter hereof.
6.4 NO THIRD PARTY BENEFICIARIES. Nothing herein, express or
implied, shall give to any Person, other than the Trustees, the Paying Agent and
their respective successors and assigns, any benefit of any legal or equitable
right, remedy or claim hereunder.
6.5 AMENDMENT; WAIVER.
(a) This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole
or in part, except by a written instrument signed by a
duly authorized representative of the party to be charged.
The Trust shall notify the Paying Agent of any change in
the Trust Agreement prior to the effective date of any
such change.
(b) Failure of either party hereto to exercise any right or
remedy hereunder in the event of a breach hereof by the
other party shall not constitute a waiver of
any such right or remedy with respect to any subsequent
breach.
6.6 SUCCESSORS AND ASSIGNS. Any corporation into which the
Paying Agent may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Paying Agent shall be a party, shall be the successor Paying Agent under the
Trust Agreement without the execution or filing of any paper, instrument or
further act to be done on the part of the parties hereto, provided that such
corporation meets the requirements set forth in the Trust Agreement and provided
further that the Trust has given its prior written consent to the Paying Agent
with respect to any such merger, conversion or consolidation. This Agreement
shall be binding upon, inure to the benefit of, and be enforceable by, the
respective successors of each of the Trust and the Paying Agent. This Agreement
shall not be assignable by either the Trust or the Paying Agent without the
prior written consent of the other party.
6.7 SEVERABILITY. If any clause, provision or section hereof
shall be ruled invalid or unenforceable by any court of competent jurisdiction,
the invalidity or unenforceability of such clause, provision or section shall
not affect any of the remaining clauses, provisions or sections hereof.
6.8 EXECUTION IN COUNTERPARTS. This Agreement may be executed
in several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
6.9 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the date first above written.
DECS TRUST VI
By:
Xxxxxx X. Xxxxxxx, as Managing Trustee
THE BANK OF NEW YORK
By:
Name:
Title:
