EXHIBIT 99.3
EXCHANGE AGENCY AGREEMENT
This Agreement is entered into as of , 1999 between U.S. Bank Trust
National Association, a national banking association, as Exchange Agent (the
"Agent") and Metromedia International Group, Inc. a corporation organized under
the laws of the State of Delaware ("MMG").
MMG and PLD Telekom Inc. ("PLD") have entered into an agreement and plan of
merger, dated as of May 18, 1999 (the "Merger Agreement") pursuant to which a
wholly owned subsidiary of MMG and PLD have agreed to merge (the "Merger"). As a
condition to the Merger, certain PLD noteholders have entered into an Agreement
to Exchange and Consent, dated as of May 18, 1999, with MMG (the "Agreement to
Exchange and Consent") in which certain holders of PLD's outstanding 14% Senior
Discount Notes due 2004 and of PLD's outstanding 9% Convertible Subordinated
Notes due 2006 (collectively, the "PLD Notes") have agreed to exchange their PLD
Notes for Initial Notes (as defined below).
In accordance with the Agreement to Exchange and Consent, MMG proposes to
exchange (the "Exchange Offer") $210,631,376 aggregate principal amount of its
Series B 10 1/2% Senior Discount Notes due 2007 (the "Exchange Notes"), in
exchange for an equal aggregate principal amount of its outstanding Series A
10 1/2% Senior Discount Notes due 2007 (the "Initial Notes"). 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 MMG in its sole discretion (the "Expiration
Date"). The Exchange Notes are to be issued by MMG pursuant to the terms of an
indenture dated as of , 1999 (the "Indenture") between MMG and U.S.
Bank Trust National Association, as trustee (the "Trustee").
Subject to the provisions hereof, MMG 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 (the "L/T")
and with the terms and conditions set forth herein and under the caption "The
Exchange Offer" in the Prospectus.
MMG 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--Conditions to the Exchange
Offer." MMG 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) the L/T,
(2) a form of Notice of Guaranteed Delivery,
(3) the Prospectus,
(4) Tax Guidelines,
(5) A cover letter to clients, and
(6) A cover letter to Depository Trust Company 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 Notes by causing DTC to transfer such
Initial Notes 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" and
that 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, the Agent
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;
(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, any Executive Vice President, any Vice President or any
Assistant Secretary of MMG 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 Xxxxxx
Xxxxxxxxx, President and Chief Executive Officer at MMG, Xxxxxx Xxxxxx,
Executive Vice President and Chief Financial Officer at MMG, Xxxxxx
Xxxxxx, Executive Vice President, General Counsel and Secretary at MMG,
Xxxxxxxx Xxxxx, Assistant General Counsel of MMG, with copies to Xxxxxxx
Xxxx, Xxxxxxx Xxxxxx, and Xxxx Xxxxxx at Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx 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 MMG or such other person or persons as they
shall designate in writing;
(k) to return to the presenters, 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;
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(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;
(n) to deliver to, or upon the order of, MMG 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 MMG 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 MMG;
(b) not be required to refer to any documents for the performance of its
obligations hereunder other than this Agreement, the Exchange Offer
Documents; 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 MMG 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 MMG 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 MMG;
(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 MMG;
(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 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 MMG or staff counsel of the Agent), and the advice or opinion of such
counsel shall be full and complete
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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.
(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 MMG,
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. MMG
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.
MMG 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. MMG
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
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MMG 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:
U.S. Bank Trust National Association
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Corporate Trust Department /
Corporate Finance
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to MMG, to:
Metromedia International Group, Inc.
c/o Metromedia Company
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000-0000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, 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 MMG any certificates for Securities, funds or
property then held by the 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.
U.S. BANK TRUST NATIONAL ASSOCIATION
By:
-----------------------------------------
Name:
Title:
METROMEDIA INTERNATIONAL GROUP, INC.
By:
-----------------------------------------
Name:
Title:
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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,
Corporate Trust 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 INTERNATIONAL GROUP
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000-0000
Tel: (000) 000-0000
NAME BUSINESS TELEPHONE NUMBER
--------------------------------------------------------------------------------------- -------------------------
Xxxxxx Xxxxxxxxx....................................................................... Tel: (000) 000-0000
PRESIDENT & CHIEF EXECUTIVE OFFICER Fax: (000) 000-0000
Xxxxxx Xxxxxx.......................................................................... Tel: (000) 000-0000
CHIEF FINANCIAL OFFICER Fax: (000) 000-0000
Xxxxxx X. Xxxxxx....................................................................... Tel: (000) 000-0000
EVP, GENERAL COUNSEL & SECRETARY Fax: (000) 000-0000
Xxxxxxxx Xxxxx......................................................................... Tel: (000) 000-0000
ASSISTANT GENERAL COUNSEL Fax: (000) 000-0000
XXXX, WEISS, RIFKIND, XXXXXXX AND XXXXXXXX
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
NAME BUSINESS TELEPHONE NUMBER
--------------------------------------------------------------------------------------- -------------------------
Xxxxxxx X. Xxxx........................................................................ Tel: (000) 000-0000
PARTNER Fax: (000) 000-0000
Xxxxxxx X. Xxxxxx...................................................................... Tel: (000) 000-0000
ASSOCIATE Fax: (000) 000-0000
Xxxx Xxxxxx............................................................................ Tel: (000) 000-0000
ASSOCIATE Fax: (000) 000-0000
