Exhibit 99.1
EXCHANGE AGENCY AGREEMENT
This Agreement is entered into as of _____________, 1999 between IBJ
Whitehall Bank & Trust Company, a banking corporation organized under the laws
of the State of New York, as Exchange Agent (the "Agent") and Metromedia Fiber
Network, Inc. a corporation organized under the laws of the State of Delaware
(the "Company").
The Company proposes to exchange (the "Exchange Offer") $650,000,000
aggregate principal amount of its 10% Series B Senior Notes due 2008 (the
"Exchange Notes"), in exchange for an equal aggregate principal amount of its
outstanding 10% Series A Senior Notes due 2008, (the "Initial Notes") pursuant
to the Registration Rights Agreement dated as of November 25, 1998. The terms
and conditions of the Exchange Offer as currently contemplated are set forth in
a prospectus dated ______, 1999 (the "Prospectus"), proposed to be distributed
to all record holders of the Initial Notes. The Initial Notes and the Exchange
Notes are collectively referred to herein as the "Securities."
The Exchange Offer will terminate at 5:00 p.m. New York City Time on
_____________, 1999, unless extended by the Company in its sole discretion (the
"Expiration Date"). The Exchange Notes are to be issued by the Company pursuant
to the terms of an Indenture dated as of November 25, 1998 (the "Indenture")
between the Company and IBJ Whitehall Bank & Trust Company, as trustee (the
"Trustee").
Subject to the provisions hereof, the Company hereby appoints and the
Agent hereby accepts the appointment as Agent for the purposes of receiving,
accepting for delivery and otherwise acting upon tenders of the Initial Notes
(the "Certificates") in accordance with the form of Letter of Transmittal
attached to the Prospectus (the "L/T") and with the terms and conditions set
forth herein and under the caption "The Exchange Offer" in the Prospectus.
The Company expressly reserves the right to extend, amend or terminate
the Exchange Offer, and not to accept for exchange any Initial Notes not
theretofore accepted for exchange, upon the occurrence of any of the conditions
specified in the Prospectus under the caption "The Exchange Offer---Terms of the
Exchange Offer ---Conditions." The Company will give oral (confirmed in
writing) or written notice of any extension, amendment, termination or
nonacceptance to the Agent as promptly as practicable.
The Agent has received the following documents in connection with its
appointment (the "Exchange Offer Documents"):
(1) L/T
(2) a form of Notice of Guaranteed Delivery
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(3) the Prospectus
(4) Tax Guidelines
(5) A cover letter to Clients
(6) A cover letter to DTC Participants
The Agent is authorized and hereby agrees as follows:
(a) to establish an account with respect to the Initial Notes at
the Depository Trust Company ("DTC") for purposes of the Exchange Offer within
two business days after the date of the Prospectus, and any financial
institution that is a participant in DTC's systems shall be able to make
book-entry delivery of Initial Securities by causing DTC to transfer such
Initial Securities into the Agent's account in accordance with DTC's procedure
for such transfer;
(b) that tenders of Initial Notes may be made only as set forth
in the L/T and in the section of the Prospectus captioned "The Exchange
Offer--Terms of the Exchange Offer" and Initial Notes shall be considered
properly tendered to the Agent only when tendered in accordance with the
procedures set forth herein and therein;
(c) to address, and deliver by hand or next day courier, a
complete set of the Exchange Offer Documents to each person who, prior to the
Expiration Date, is or becomes a registered holder of Initial Notes promptly
after such person becomes a registered holder of Initial Notes;
(d) to receive all tenders of Initial Notes made pursuant to the
Exchange Offer and stamp the L/T with the day, month and approximate time of
receipt;
(e) to examine each L/T and Initial Notes received or agent's
message (as defined in the Prospectus) and book-entry transfer, as the case may
be to determine whether: (i) the L/T and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein and book-entry confirmations are in due and proper form and contain the
information required to be set forth therein and (ii) the Initial Notes have
otherwise been properly tendered. In each case where the L/T or any other
document has been improperly completed or executed or book-entry confirmations
are not in due and proper form and do not contain adequate information or any of
the certificates for Initial Notes are not in proper form for transfer or some
other irregularity in connection with the acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need for fulfillment
of all requirements and to take any other action as may be necessary or
advisable to cause such irregularity to be corrected. The Agent shall be
entitled to rely on the electronic messages sent by DTC regarding ATOP delivery
of the Notes to the Agent's account at DTC from the DTC participants listed
on the DTC position listing provided to the Agent;
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(f) to take such actions necessary and appropriate to correct
any irregularity or deficiency associated with any tender not in proper order;
(g) to follow instructions given by the Chief Executive Officer,
the President, the Senior Vice President, any Executive Vice President, or any
Vice President of the Company or any other party designated by such an officer
in writing (the "Designated Officers"), with respect to the waiver of any
irregularities or deficiencies associated with any tender;
(h) to hold all valid tenders subject to further instructions
from any Designated Officer;
(i) to render a report via facsimile, in the form of Exhibit
A attached hereto, on each business day during the Exchange Offer to ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, President and Chief Operating Officer at Metromedia Fiber
Network, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Financial Officer at Metromedia Fiber
Network, ▇▇▇▇▇▇ ▇▇▇▇▇▇, Executive Vice President, General Counsel and
Secretary at Metromedia Fiber Network and Metromedia Company, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Assistant General Counsel at Metromedia Fiber Network and Metromedia Company,
▇▇▇▇▇▇ ▇▇▇▇▇▇, Executive Vice President at Metromedia Fiber Network and
President at ▇▇▇▇▇ & Company, with copies to ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇ at ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ as listed on Exhibit
C;
(j) to follow and act upon any written amendments, modifications
or supplements to these instructions, any of which may be given to the Agent by
any Designated Officer of the Company or such other person or persons as they
shall designate in writing;
(k) to return to the presentors, in accordance with the
provisions of the L/T, any Initial Notes that were not received in proper order
and as to which the irregularities or deficiencies were not cured or waived;
(l) in the event the Exchange Offer is consummated, to deliver
authenticated Exchange Notes to tendering Noteholders, in accordance with the
instructions of such Noteholders specified in the respective L/T's, as soon as
practicable after consummation thereof;
(m) to determine that all endorsements, guarantees, signatures,
authorities, stock transfer taxes (if any) and such other requirements are
fulfilled in connection with any request for issuance of the Exchange Notes in a
name other than that of the registered owner of the Initial Notes;
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(n) to deliver to, or upon the order of, the Company all Initial
Notes received under the Exchange Offer, together with any related assignment
forms and other documents by first class mail, return receipt requested under a
blanket surety bond protecting the Agent and the Company from loss or liability
arising out of the non-receipt or non-delivery of such Initial Notes or
registered mail insured separately for the replacement value of each such
Initial Notes; and
(o) subject to the other terms and conditions set forth in this
Agreement to take all other actions reasonable and necessary in the good faith
judgment of the Agent, to effect the foregoing matters.
The Agent shall:
(a) have no duties or obligations other than those specifically
set forth herein or as may be subsequently agreed to in writing by you and the
Company;
(b) not be required to refer to any documents for the
performance of its obligations hereunder other than this Agreement, the
Prospectus, the L/T and the documents required to be submitted with the L/T;
other than such documents, the Agent will not be responsible or liable for any
terms, directions or information in the Prospectus or any other document or
agreement unless the Agent specifically agrees thereto in writing;
(c) not be required to act on the directions of any person,
including the persons named above, unless the Company provides a corporate
resolution to the Agent or other evidence satisfactory to the Agent of the
authority of such person;
(d) not be required to, and shall make no representations and
have no responsibilities as to, the validity, accuracy, value or genuineness of
(i) the Exchange Offer, (ii) any Certificates, L/Ts or documents prepared by the
Company in connection with the Exchange Offer or (iii) any signatures or
endorsements, other than its own;
(e) not be obligated to take any legal action hereunder that
might, in its judgment, involve any expense or liability, unless it has been
furnished with reasonable indemnity by the Company;
(f) be able to rely on and shall be protected in acting on the
written or oral instructions with respect to any matter relating to its actions
as Agent specifically covered by this Agreement, of any Designated Officer of
the Company;
(g) be able to rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter, telegram or any other document
or
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security delivered to it and believed by it reasonably and in good faith to be
genuine and to have been signed by the proper party or parties;
(h) not be responsible for, or liable in any respect on account
of, the identity, authority or rights of any person executing or delivering or
purporting to execute or deliver any document or property under this Agreement
and shall have no responsibility with respect to the use or application of any
property delivered by it pursuant to the provisions hereof;
(i) be able to consult with counsel satisfactory to it
(including counsel for the Company or staff counsel of the Agent), and the
advice or opinion 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 accordance with advice or opinion of such counsel;
(j) not be called on at any time to advise, and shall not
advise, any person delivering an L/T pursuant to the Exchange Offer as to the
value of the consideration to be received;
(k) not be liable for anything which it may do or refrain from
doing in connection with this Agreement except for its own gross negligence,
willful misconduct or bad faith;
(l) not be bound by any notice or demand, or any waiver or
modification of this Agreement or any of the terms hereof, unless evidenced by a
writing delivered to the Agent signed by the proper authority or authorities
and, if the Agent's duties or rights are affected, unless the Agent shall give
its prior written consent thereto;
(m) have no duty to enforce any obligation of any person to make
delivery, or to direct or cause any delivery to be made, or to enforce any
obligation of any person to perform any other act;
(n) have the right to assume, in the absence of written notice
to the contrary from the proper person or persons, that a fact or an event by
reason of which an action would or might be taken by the Agent does not exist or
has not occurred without incurring liability for any action taken or omitted, or
any action suffered by the Agent to be taken or omitted, in good faith or in the
exercise of the Agent's best judgment, in reliance upon such assumption; and
(o) not be authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
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(p) waive any lien, encumbrance or right of set-off whatsoever
that the Agent may have with respect to funds deposited with the Agent for
the payment of transfer taxes by reason of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or
credit agreement with the Agent or for compensation owed to the Agent
hereunder.
(q) arrange to comply with all requirements under the tax laws of
the United States, including those relating to missing Tax Identification
Numbers, and file any appropriate reports with the Internal Revenue Service.
The Company understands that the Agent is required to deduct 31% on payments
to holders who have not supplied their correct Taxpayer Identification Number
or required certification. Such funds will be turned over to the Internal
Revenue Service in accordance with applicable regulations.
The Agent shall be entitled to compensation as set forth in Exhibit B
attached hereto.
The Company covenants and agrees to reimburse the Agent for, indemnify
it against, and hold it harmless from any and all reasonable costs and expenses
(including reasonable fees and expenses of one firm of counsel and allocated
cost of staff counsel) that may be paid or incurred or suffered by it or to
which it may become subject without gross negligence, willful misconduct or bad
faith on its part by reason of or as a result of its compliance with the
instructions set forth herein or with any additional or supplemental written or
oral instructions delivered to it pursuant hereto, or which may arise out of or
in connection with the administration and performance of its duties under this
Agreement. The Company agrees to promptly notify the Agent of any extension of
the Expiration Date.
This Agreement shall be construed and enforced in accordance with the
laws of the State of New York and shall inure to the benefit of, and the
obligations created hereby shall be binding upon, the successors and assigns of
the parties hereto. The parties agree to submit to the exclusive jurisdiction
of the federal or state courts located in the State of New York, New York
County.
Unless otherwise expressly provided herein, all notices, requests,
demands and other communications hereunder shall be in writing, shall be
delivered by hand, facsimile or by First Class Mail, postage prepaid, shall be
deemed given when received and shall be addressed to the Agent and the Company
at the respective addresses listed below or to such other addresses as they
shall designate from time to time in writing, forwarded in like manner.
If to the Agent, to:
IBJ Whitehall Bank & Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Reorganization Operations Dept.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
IBJ Whitehall Bank & Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Finance Trust Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to:
Metromedia Fiber Network, Inc.
c/o Metromedia Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, the indemnification and compensation provisions of this Agreement
shall survive the termination of this Agreement. Upon any termination of
this Agreement, the Agent shall promptly deliver to the Company any
certificates for Securities, funds or property then held by you as Exchange
Agent under this Agreement.
This Agreement shall be binding and effective as of the date hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on their behalf by their officers thereunto duly authorized, all as
of the day and year first above written.
IBJ Whitehall Bank & Trust Company
By:
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Metromedia Fiber Network, Inc.
By:
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EXHIBIT A
SAMPLE REPORT
Date:______________________________
Report Number:_____________________
As of Date: _______________________
Ladies & Gentlemen:
As Exchange Agent for the Exchange Offer dated ___________, 1999, we
hereby render the following report:
Principal Amount previously received:
-------------
Principal Amount received today:
-------------
Principal Amount received against Guaranteed Deliveries:
-------------
Principal Amount withdrawn today:
-------------
TOTAL PRINCIPAL AMOUNT RECEIVED TO DATE:
=============
Very truly yours,
Reorganization Operations Dept.
EXHIBIT B
COMPENSATION
The Agent for serving as the Exchange Agent pursuant to this
Agreement, shall receive a fee of $2,500, payable upon commencement of the
Exchange Offer, and the Agent's out-of-pocket expenses incurred in connection
with completing its duties pursuant to this Agreement.
EXHIBIT C
METROMEDIA FIBER NETWORK
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
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NAME BUSINESS TELEPHONE NUMBER
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
PRESIDENT & CHIEF OPERATING OFFICER Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
CHIEF FINANCIAL OFFICER Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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METROMEDIA COMPANY
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
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NAME BUSINESS TELEPHONE NUMBER
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
EVP, GENERAL COUNSEL & SECRETARY Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ASSISTANT GENERAL COUNSEL Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇▇▇ & COMPANY
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
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NAME BUSINESS TELEPHONE NUMBER
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▇▇▇▇▇▇ ▇▇▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
PRESIDENT Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇▇, WEISS, RIFKIND, ▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇
1285 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
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NAME BUSINESS TELEPHONE NUMBER
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
PARTNER Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ASSOCIATE Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ASSOCIATE Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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