Exhibit 4.4
July ___, 2001
EXCHANGE AGENT AGREEMENT
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The Bank of New York, London Branch
00/xx/ Xxxxx
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Attention: Corporate Trust Trustee Administration
Ladies and Gentlemen:
Antenna TV S.A. a societe anonyme organized under the laws of the
Republic of Greece (the "Company") proposes to make an offer (the "Exchange
Offer") to exchange all of its outstanding 9 3/4% Senior Notes due 2008 (the
"Initial Notes") for its 9 3/4% Senior Notes due 2008 which have been registered
under the U.S. Securities Act of 1933 (the "Exchange Notes"). The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus, dated ______, 2001 (the "Prospectus") and related Letter of
Transmittal, 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 "Notes".
The Company hereby appoints The Bank of New York to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or
about _____, 2001. The Letter of Transmittal accompanying the Prospectus (or in
the case of book-entry securities, through the facilities of the Book-Entry
Transfer Facility (as defined below)) is to be used by the holders of the
Initial Notes to accept the Exchange Offer and contains instructions with
respect to the delivery of certificates for Initial Notes tendered in connection
therewith.
The Exchange Offer shall expire at 5:00 p.m., London time, on _____,
2001 or on such subsequent date or time to which the Company may extend the
Exchange Offer (the "Expiration Date"). Subject to the terms and conditions set
forth in the Prospectus, the Company expressly reserves the right to extend the
Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (promptly
confirmed in writing) or written notice to you before 9:00 a.m., London time, on
the business day following the previously scheduled Expiration Date.
The Company expressly reserves the right to 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 of the
Exchange Offer specified in the Prospectus under the caption "The Exchange
Offer." The Company will give oral (promptly confirmed in writing) or written
notice of any amendment, termination or nonacceptance to you as promptly as
practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; provided, however, that in no way
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will your general duty to act in good faith be discharged by the foregoing.
2. You will establish a book-entry account with respect to the
Initial Notes at Euroclear or Clearstream, Luxembourg (the "Book-Entry Transfer
Facility") 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
the Book-Entry Transfer Facility's systems may make book-entry delivery of the
Initial Notes by causing the Book-Entry Transfer Facility to transfer such
Initial Notes into your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer. The account shall be maintained until
all Initial Notes tendered pursuant to the Exchange Offer shall have either been
accepted for exchange or returned.
3. You are to examine each of the Letters of Transmittal and
certificates for Initial Notes (or confirmation of book-entry transfer into your
account at the Book-Entry Transfer Facility) and any other documents delivered
or mailed to you by or for holders of the Initial Notes to ascertain whether:
(i) the Letters of Transmittal and any such other documents are duly executed
and properly completed in accordance with instructions set forth therein; and
(ii) the Initial Notes have otherwise been properly tendered. In each case where
the Letter of Transmittal or any other document has been improperly completed or
executed 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
reasonably necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the Chief Executive Officer, the Chief
Financial Officer, or any executive officer of the Company (such approval, if
given orally, to be promptly confirmed in writing) or any other party designated
in writing, by
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such an officer, you are authorized to waive any irregularities in
connection with any tender of Initial Notes pursuant to the Exchange Offer.
5. Tenders of Initial Notes may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer - Terms of the Exchange Offer - Procedures for Tendering", and
Initial Notes shall be considered properly tendered to you only when tendered in
accordance with the procedures set forth therein.
Notwithstanding the provisions of this Section 5, Initial Notes which
the Chief Executive Officer, Chief Financial Officer or any executive officer of
the Company shall approve as having been properly tendered shall be considered
to be properly tendered (such approval, if given orally, shall be promptly
confirmed in writing).
6. You shall advise the Company with respect to any Initial Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Initial Notes.
7. You shall accept tenders:
(a) in cases where the Initial Notes are registered in two or
more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Initial
Notes, provided that customary transfer requirements, including payment of any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Initial Notes where so indicated
and as permitted in the Letter of Transmittal and deliver certificates for
Initial Notes to the registrar for split-up and return any untendered Initial
Notes to the holder (or such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or termination of the
Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice, if given orally, to be
promptly confirmed in writing) of its acceptance, promptly after the Expiration
Date, of all Initial Notes properly tendered and you, on behalf of the Company,
will exchange such Initial Notes for Exchange Notes and cause such Initial Notes
to be cancelled. Delivery of Exchange Notes will be made on behalf of the
Company by you at the rate of (Euro)1,000 principal amount of Exchange Notes for
each (Euro)1,000 principal amount of the corresponding series of Initial Notes
tendered promptly after notice (such notice if given
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orally, to be promptly confirmed in writing) of acceptance of said Initial Notes
by the Company; provided, however, that in all cases, Initial Notes tendered
pursuant to the Exchange Offer will be exchanged only after timely receipt by
you of certificates for such Initial Notes (or timely confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility), a properly
completed and duly executed Letter of Transmittal (or manually signed facsimile
thereof) with any required signature guarantees and any other required
documents. You shall issue Exchange Notes only in denominations of (Euro)1,000
or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Initial Notes tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration Date, as provided in
the Prospectus under the caption "The Exchange Offer - Terms of the Exchange
Offer - Withdrawal of Tenders."
10. The Company shall not be required to exchange any Initial Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Initial Notes tendered
shall be given (if given orally, to be promptly confirmed in writing) by the
Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or part of the Initial Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer" or otherwise, you shall as soon as practicable
after the expiration or termination of the Exchange Offer return those
certificates for unaccepted Initial Notes (or effect appropriate book-entry
transfer), together with any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the persons who
deposited them.
12. All certificates for reissued Initial Notes, unaccepted Initial
Notes or for Exchange Notes shall be forwarded by first-class mail.
13. You are not 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.
14. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act unless
the same constitutes your own gross negligence, willful misconduct or bad faith,
and in no event shall you be liable to a securityholder, the Company or any
third party for special, indirect or consequential damages, or lost profits,
arising in connection with this Agreement.
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(b) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in writing
between you and the Company;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates or the Initial Notes represented thereby deposited with you
pursuant to the Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange Offer;
(d) shall not be obligated to take any legal action hereunder
which might in your judgment involve any expense or liability, unless you shall
have been furnished with indemnity satisfactory to you;
(e) may conclusively rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram or
other document or security delivered to you and believed by you to be genuine
and to have been signed or presented by the proper person or persons;
(f) may act upon any tender, statement, request, document,
agreement, certificate or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in good
faith believe to be genuine or to have been signed or presented by the proper
person or persons;
(g) may conclusively rely on and shall be protected in acting
upon written or oral instructions from any authorized officer of the Company;
(h) may consult with counsel of your selection with respect to
any questions relating to your duties and responsibilities 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 to be taken by you hereunder
in good faith and in accordance with the advice or opinion of such counsel; and
(i) shall not advise any person tendering Initial Notes pursuant
to the Exchange Offer as to the wisdom of making such tender or as to the market
value or decline or appreciation in market value of any Initial Notes.
15. You shall take such action as may from time to time be requested
by the Company (and such other action as you may deem appropriate) to furnish
copies of the Prospectus and Letter of Transmittal or such other forms as may be
approved from time to time by the Company, to all persons requesting such
documents and to accept and comply with telephone requests for information
relating to the Exchange Offer, provided that such information shall relate only
to the procedures for accepting (or withdrawing from) the Exchange Offer. The
Company will furnish you with copies of such
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documents on your request. All other requests for information relating to the
Exchange Offer shall be directed to the Company, Attention: Xxxxxxx
Xxxxxxxxxxxx.
16. You are authorized to cooperate with and to furnish information
to any organization (and its representatives) designated from time to time by
the Company or Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx in any manner reasonably
requested by it in connection with the Exchange Offer and any tenders
thereunder.
17. You shall advise by facsimile transmission Xxxxxxx Xxxxxxxxxxxx,
the Chief Financial Officer of the Company (at the facsimile number 30-1-685-
6390), and such other person or persons as the Company may request, daily (and
more frequently during the week immediately preceding the Expiration Date if
requested) up to and including the Expiration Date, as to the number of Initial
Notes which have been tendered pursuant to the Exchange Offer and the items
received by you pursuant to this Agreement, separately reporting and giving
cumulative totals as to items properly received and items improperly received.
In addition, you will also inform, and cooperate in making available to, the
Company or any such other person or persons upon oral request made from time to
time prior to the Expiration Date of such other information as they may
reasonably request. Such cooperation shall include, without limitation, the
granting by you to the Company and such person as the Company may request of
access to those persons on your staff who are responsible for receiving tenders,
in order to ensure that immediately prior to the Expiration Date the Company
shall have received information in sufficient detail to enable it to decide
whether to extend the Exchange Offer. You shall prepare a final list of all
persons whose tenders were accepted, the aggregate principal amount of Initial
Notes tendered, the aggregate principal amount of Initial Notes accepted and
deliver said list to the Company.
18. Letters of Transmittal shall be stamped by you as to the date
and, after the expiration of the Exchange Offer, the time, of receipt thereof
and shall be preserved by you for a period of time at least equal to the period
of time you preserve other records pertaining to the transfer of securities. You
shall dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto. The
provisions of this section shall survive the termination of this Agreement.
20. You hereby acknowledge receipt of the Prospectus and the Letter
of Transmittal. Any inconsistency between this Agreement, on the one hand, and
the Prospectus and the Letter of Transmittal (as they may be amended from time
to time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to your duties, liabilities and indemnification
as Exchange Agent.
21. The Company covenants and agrees to fully indemnify and hold you
harmless against any and all loss, liability, cost or expense, including
attorneys' fees
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and expenses, incurred without gross negligence or willful misconduct on your
part, arising out of or in connection with any act, omission, delay or refusal
made by you in reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, instruction or other instrument or document
believed by you to be valid, genuine and sufficient and in accepting any tender
or effecting any transfer of Initial Notes believed by you in good faith to be
authorized, and in delaying or refusing in good faith to accept any tenders or
effect any transfer of Initial Notes. In each case, the Company shall be
notified by you, by letter or facsimile transmission, of the written assertion
of a claim against you or of any other action commenced against you, promptly
after you shall have received any such written assertion or shall have been
served with a summons in connection therewith. The Company shall be entitled to
participate at its own expense in the defense of any such claim or other action
and, if the Company so elects, the Company shall assume the defense of any suit
brought to enforce any such claim. In the event that the Company shall assume
the defense of any such suit, the Company shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you, so long as the
Company shall retain counsel satisfactory to you to defend such suit, and so
long as you have not determined, in your reasonable judgment, that a conflict of
interest exists between you and the Company. The provisions of this section
shall survive the termination of this Agreement.
22. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
23. You shall deliver or cause to be delivered, in a timely manner to
each governmental authority to which any transfer taxes are payable in respect
of the exchange of Initial Notes, the Company's check in the amount of all
transfer taxes so payable; provided, however, that you shall reimburse the
Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
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27. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company:
Antenna TV S.A.
00-00 Xxxxxxxxx Xxxxxx
00 000 Xxxxxxxx
Xxxxxx, Xxxxxx
Facsimile: 30-1-685-6390
Attention: Chief Executive Officer and Chief Financial Officer
With copies to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: 212-757-3990
Telephone: 000-000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
If to the Exchange Agent:
The Bank of New York, London Branch
00/xx/ Xxxxx
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Facsimile: 00-00-0000-0000
Attention: Corporate Trust Trustee
Administration
29. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 19 and 21 shall survive the termination of this Agreement.
Upon any
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termination of this Agreement, you shall promptly deliver to the Company any
certificates for Securities, funds or property then held by you as Exchange
Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
ANTENNA TV S.A.
By: ______________________
Name:
Title:
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:_____________________
Name:
Title:
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SCHEDULE I
COMPENSATION OF EXCHANGE AGENT:
$5,000 PLUS $500 PER EXTENSION OF OFFER
PLUS OUT-OF POCKET EXPENSES
(UP TO A MAXIMUM OF $5,000), INCLUDING WITHOUT
LIMITATION, LEGAL FEES AND EXPENSES.
