Exhibit 99.5
FORM OF EXCHANGE AGENT AGREEMENT
July ___, 2001
Citibank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Agency & Trust Services
Kredietbank S.A. Luxembourgeoise
00 Xxxxxxxxx Xxxxx
X-0000 Xxxxxxxxxx
Xxxxxxxxx: Corporate Trust Trustee Administration
Ladies and Gentlemen:
Viacom Inc., a Delaware corporation, proposes to make an offer
(the "Exchange Offer") to exchange all of its outstanding unregistered 6.40%
Senior Notes due 2006 (the "Unregistered Notes due 2006"), of which $403,075,000
aggregate principal amount is outstanding, its 7.70% Senior Notes due 2010 (the
"Unregistered Notes due 2010"), of which $1,000,000 aggregate principal amount
is outstanding, its 6.625% Senior Notes due 2011 (the "Unregistered Notes due
2011"), of which $1,000,000,000 aggregate principal amount is outstanding and
its 7.875% Senior Debentures due 2030, of which $200,000 aggregate principal
amount is outstanding, (the "Unregistered Debentures" and, together with the
Unregistered Notes due 2006, the Unregistered Notes due 2010 and the
Unregistered Notes due 2011, the "Unregistered Securities") for an equal
principal amount of its 6.40% Senior Notes due 2006 (the "2006 Exchange Notes"),
its 7.70% Senior Notes due 2010 (the "2010 Exchange Notes"), its 6.625% Senior
Notes due 2011 (the "2011 Exchange Notes") and its 7.875% Senior Debentures due
2030 (the "Exchange Debentures" and, together with the 2006 Exchange Notes, the
2010 Exchange Notes and the 2011 Exchange Notes, the "Exchange Securities"). The
terms and conditions of the Exchange Offer as currently contemplated are set
forth in a prospectus, dated July __, 2001 (the "Prospectus"), proposed to be
distributed to all record holders of the Unregistered Securities. The
Unregistered Securities and the Exchange Securities are collectively referred to
herein as the "Securities". The Securities are and will be unconditionally
guaranteed by Viacom International Inc., which, together with Viacom Inc., will
be referred to herein as the "Company".
The Company hereby appoints Citibank, N.A. to act as the
Principal Exchange Agent and Kredietbank S.A. Luxembourgeoise to act as
Luxembourg Exchange Agent (collectively the "Exchange Agents") in connection
with the Exchange Offer. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed thereto in the Prospectus.
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, the Automated Tender Offer Program
("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to be used
by the holders of the Unregistered Securities to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for
Unregistered Securities tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City
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., New York City 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 Unregistered Securities
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 -- Expiration Date; Extensions; Amendment; Termination." 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 sections of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; provided, however, that in no way
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
Unregistered Securities at The Depository Trust Company (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 Unregistered Securities by causing the Book-Entry Transfer
Facility to transfer such Unregistered Securities into your account in
accordance with the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Unregistered Securities (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 Unregistered Securities, and
any book-entry confirmations (as such phrase is used in the Prospectus) 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; (ii) the Unregistered Securities have otherwise been properly
tendered and (iii) holders have provided their correct Tax Identification Number
or required certification. In each case where the Letter of Transmittal or any
other document has been improperly completed or
executed or any of the certificates for Unregistered Securities 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. You are not authorized to waive any irregularity in connection
with a surrender except as provided in paragraph 4. If such irregularity is
neither corrected nor waived, you will return to the surrendering holder (at
your option by either (a) first class mail under a blanket surety bond or
insurance protecting you and the Company from losses or liabilities arising out
of the non-receipt or non-delivery of such certificates or (b) registered mail
insured separately for the value of such certificates) to such holders address
set forth in the Letter of Transmittal, any certificates for Unregistered
Securities surrendered in connection therewith, the related Letter of
Transmittal, and any other documents received with such certificates, and a
letter of notice explaining the reasons for the return of the certificates and
other documents.
4. With the approval of the President or any Vice President of
the Company (such approval, if given orally, to be promptly confirmed in
writing) or any other party designated in writing, by such an officer, you are
authorized to waive any irregularities in connection with any tender of
Unregistered Securities pursuant to the Exchange Offer.
5. Tenders of Unregistered Securities may be made only as set
forth in the Letter of Transmittal and in the sections of the Prospectus
captioned "The Exchange Offer -- Procedures for Tendering," and "The Exchange
Offer -- Guaranteed Delivery Procedures," and Unregistered Securities 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, Unregistered
Securities which the President, Senior Vice President, or any Vice President 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
Unregistered Securities received subsequent to the Expiration Date and accept
its instructions with respect to disposition of such Unregistered Securities.
7. You shall accept tenders:
(a) in cases where the Unregistered Securities 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
Unregistered Securities, provided that customary transfer requirements,
including payment of any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Unregistered Securities
where so indicated and as permitted in the Letter of Transmittal and deliver
certificates for Unregistered Securities to the registrar for split-up and
return any untendered Unregistered Securities 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 Unregistered Securities properly tendered and you, on behalf of the
Company, will exchange such Unregistered Securities for Exchange Securities and
cause such Unregistered Securities to be cancelled. Delivery of Exchange
Securities will be made on behalf of the Company by you at the rate of $1,000
principal amount of Exchange Securities for each $1,000 principal amount of the
corresponding series of Unregistered Securities tendered promptly after notice
(such notice if given orally, to be promptly confirmed in writing) of acceptance
of said Unregistered Securities by the Company; provided, however, that in all
cases, Unregistered Securities tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of certificates for such Unregistered
Securities (or 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 Securities
only in denominations of $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, Unregistered Securities tendered
pursuant to the Exchange Offer may be withdrawn at any time prior to the
Expiration Date.
10. All Unregistered Securities accepted for exchange are to
be retired from the Company's books and will no longer be outstanding.
11. The Company shall not be required to exchange any
Unregistered Securities 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 Unregistered Securities tendered shall be given (if given orally,
to be promptly confirmed in writing) by the Company to you.
12. If, pursuant to the Exchange Offer, the Company does not
accept for exchange all or part of the Unregistered Securities tendered because
of an invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer -- Expiration Date; Extensions;
Amendment; Termination" or otherwise, you shall as soon as practicable after the
expiration or termination of the Exchange Offer return those certificates for
unaccepted Unregistered Securities (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.
13. All certificates for reissued Unregistered Securities,
unaccepted Unregistered Securities or for Exchange Securities shall be forwarded
by (a) first-class certified mail, return
receipt requested, under a blanket surety bond or insurance protecting you and
the Company from losses and liabilities arising out of the non-receipt or
non-delivery of such certificates or (b) registered mail insured separately for
the value of such securities.
14. 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.
15. 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 security holder, the Company or
any third party for special, indirect or consequential damages, or lost profits,
arising in connection with this Agreement;
(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 Unregistered Securities 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 reasonable judgment involve any expense or liability, unless
you shall have been furnished with indemnity reasonably satisfactory to you;
(e) may reasonably 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 reasonably believed by you to be
genuine and to have been signed or presented by the proper person or persons;
(f) may reasonably 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 reasonably 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 Unregistered
Securities 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
Unregistered Securities.
16. You shall take such action as may from time to time be
requested by the Company or its counsel (and such other action as you may deem
reasonably appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery (as such terms are used in the
Prospectus) 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 documents on your request. All other requests for information relating
to the Exchange Offer shall be directed to the Company, Attention: General
Counsel, Viacom Inc., 0000 Xxxxxxxx, Xxx Xxxx, XX 00000.
17. You shall advise by facsimile transmission the President,
Corporate Finance, of the Company (at the facsimile number (000) 000-0000), 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
Unregistered Securities 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
Unregistered Securities tendered, the aggregate principal amount of Unregistered
Securities accepted and deliver said list to the Company.
18. Letters of Transmittal, book-entry confirmations and
Notices of Guaranteed Delivery 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 and shall
thereafter be delivered by you to the Company. 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 and further acknowledge that you have examined each of
them. 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, which shall be controlled by
this Exchange Agreement.
21. The Company covenants and agrees to fully indemnify and
hold you harmless in your capacity as Exchange Agent hereunder against any and
all loss, liability, cost or expense, including attorneys' fees 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 reasonably believed
by you to be valid, genuine and sufficient and in accepting any tender or
effecting any transfer of Unregistered Securities reasonably 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 Unregistered Securities. In no case, shall
the Company be liable under this indemnity with respect to any claim against you
unless 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.
It is understood that the Company shall not be liable under this paragraph for
the fees and disbursements of more than one legal counsel to you. In the event
that the Company may 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.
Without the prior written consent of the Company, you will not settle,
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding in respect of which indemnification could be sought
in accordance with the indemnification provisions of this Agreement (whether or
not you, the Company or any of its directors, officers and controlling persons
is an actual or potential party to such claim or proceeding), unless such
settlement or consent includes an unconditional release of the Company and its
directors, officers and controlling persons from all liability arising out of
such claim, action or proceeding.
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 Unregistered Securities, 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.
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:
Viacom Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
Copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
If to the Exchange Agent:
Citibank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Agency & Trust Service
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Sections 18 and 20 shall survive the termination of this
Agreement. Upon any 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.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
VIACOM INC.
By:
--------------------------------
Name:
Title:
VIACOM INTERNATIONAL INC.
By:
--------------------------------
Name:
Title:
Accepted as of the date
first above written:
CITIBANK, N.A., as Principal Exchange Agent
By:
-----------------------------------------
Name:
Title:
KREDIETBANK S.A. LUXEMBOURGEOISE,
as Luxembourg Exchange Agent
By:
-----------------------------------------
Name:
Title:
SCHEDULE I
COMPENSATION OF EXCHANGE AGENT:
