1
Exhibit 99.5
January ___, 1999
EXCHANGE AGENT AGREEMENT
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
USA Networks, Inc., a Delaware corporation (the "Company") and USANi LLC, a
Delaware limited liability company ("USANi LLC," and together with USAi, the
"Issuers") propose to make an offer (the "Exchange Offer") to exchange with the
holders thereof their 6 3/4% Senior Notes due 2005 (the "Exchange Notes") for a
like principal amount of its outstanding 6 3/4% Senior Notes due 2005 (the
"Outstanding Notes"), of which $500,000,000 aggregate principal amount is
outstanding, which Exchange Notes have been registered under the Securities Act
of 1933, as amended.
The terms and conditions of the Exchange Offer as currently contemplated
are set forth in a Prospectus (the "Prospectus") dated __________, 1999,
distributed to record holders of the Outstanding Notes on or about such date.
The Outstanding Notes and the Exchange Notes are collectively referred to herein
as the "Notes." Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in the Prospectus.
The Issuers hereby appoint The Chase Manhattan Bank to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the Issuers on or about
___________, 1999. The Letter of Transmittal accompanying the Prospectus is to
be used by the holders of the Outstanding Notes to accept the Exchange Offer and
contains certain instructions with respect to (i) the delivery of certificates
for Outstanding Notes tendered in connection therewith, (ii) the book entry
transfer of Notes to the Exchange Agent's account at The Depository Trust
Company (the "Book-Entry Transfer Facility"), and (iii) other matters relating
to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
__________, 1999 or on such later date or time to which the Issuers may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Issuers expressly reserve the right to extend
the Exchange Offer from time to time by giving oral (to be confirmed in writing)
or written notice to you no later than 9:00 a.m., New York City time, on the
business day following the previously scheduled Expiration Date.
2
The Issuers expressly reserve the right to amend or terminate the Exchange
Offer, and not to accept for exchange any Outstanding Notes not theretofore
accepted for exchange, upon the occurrence of any failure of the conditions of
the Exchange Offer specified in the Prospectus under the caption "The Exchange
Offer -Conditions." The Issuers will give written notice of any amendment,
termination or nonacceptance of Outstanding Notes 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 herein and in the Letter of Transmittal.
2. You will establish an account with respect to the Outstanding Notes at
the Book-Entry Transfer Facility for purposes of the Exchange Offer within two
business days after the date of the Agreement, and any financial institution
that is a participant in the Book-Entry Transfer Facility's systems may make
book-entry delivery of the Outstanding Notes by causing the Book-Entry Transfer
Facility to transfer such Outstanding Notes 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, certificates for
Outstanding Notes (or confirmations of book-entry transfers into your account at
the Book-Entry Transfer Facility) and any Agent's Message or other documents
delivered or mailed to you by or for holders of the Outstanding Notes to
ascertain whether (i) the Letters of Transmittal and any such other documents
are executed and properly completed in accordance with instructions set forth
therein and (ii) the Outstanding 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 Outstanding
Notes are not in proper form for transfer or some other irregularity in
connection with the acceptance of the Exchange Offer exists, you will use your
reasonable best efforts 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.
4. With the approval of the President, Chief Executive Officer, Chief
Financial Officer, any Vice President or Secretary of the Issuers or any other
person designated in writing by the Issuers (a "Designated Officer") or any
other party designated by any such Designated Officer in writing, you are
authorized to waive any irregularities in connection with any tender of
Outstanding Notes pursuant to the Exchange Offer.
5. Tenders of Outstanding Notes may be made only as set forth in the Letter
of Transmittal and in the section of the Prospectus captioned "The Exchange
Offer--Procedures for Tendering," and Outstanding Notes shall be considered
properly tendered to you only when tendered in accordance with the procedures
set forth therein.
2
3
Notwithstanding the provisions of this paragraph 5, Outstanding Notes that
the Designated Officer shall approve as having been properly tendered shall be
considered to be properly tendered.
6. You shall advise the Issuers with respect to any Outstanding Notes
delivered subsequent to the Expiration Date and accept the Issuers' written
instructions with respect to the disposition of such Outstanding Notes.
7. You shall accept tenders:
(a) 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 such person's authority to so act is submitted; and
(b) from persons other than the registered holder of Outstanding Notes
provided that customary transfer requirements, including payment of any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Outstanding Notes where so indicated
and as permitted in the Letter of Transmittal and deliver certificates for
Outstanding Notes to the transfer agent for split-up and return any untendered
Outstanding Notes to the holder (or to 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 the conditions to the Exchange Offer,
the Issuers will notify you in writing of the Issuers' acceptance, promptly
after the Expiration Date, of all Outstanding Notes properly tendered and you,
on behalf of the Issuers, will exchange such Outstanding Notes for Exchange
Notes and direct you to cancel such Outstanding Notes. Delivery of Exchange
Notes will be made on behalf of the Issuers by you at the rate of $1,000
principal amount of Exchange Notes for each $1,000 principal amount of the
Outstanding Notes tendered promptly after written notice of acceptance of such
Outstanding Notes by the Issuers; provided, however, that in all cases
Outstanding Notes tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by you of certificates for such Outstanding Notes (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
facsimile thereof) with any required signature guarantees (or an Agent's Message
in lieu thereof) and any other required documents. You shall issue Exchange
Notes only in denominations of $1,000 or in any integral multiple in excess
thereof. Outstanding Notes may be tendered in whole or in part in integral
multiples of $1,000 in aggregate principal amount.
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, Outstanding Notes tendered pursuant to the Exchange Offer
may be withdrawn at any time on or prior to the Expiration Date.
3
4
10. The Issuers shall not be required to exchange any Outstanding Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Issuers not to exchange any Outstanding Notes
tendered shall be given (such notice, if given orally, shall be confirmed in
writing) by the Issuers to you.
11. If, pursuant to the Exchange Offer, the Issuers do not accept for
exchange all or part of the Outstanding Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer -Conditions" or otherwise, you shall as soon as
practicable after the expiration or termination of the Exchange Offer return
those certificates for unaccepted Outstanding Notes (or effect the appropriate
book-entry transfer of the unaccepted Outstanding Notes), together with any
related required documents and the Letter of Transmittal relating thereto that
are in your possession, to the persons who deposited them.
12. All certificates for reissued Outstanding Notes, unaccepted Outstanding
Notes or Exchange Notes shall be forwarded at the Issuers' expense by (a)
first-class mail, return receipt requested, under a blanket surety bond
protecting you and the Issuers from loss or liability arising out of the
nonreceipt or nondelivery of such certificates or (b) registered mail insured
separately for the replacement value of each of such certificates.
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) 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 Outstanding 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, sufficiency, value or genuineness of the
Exchange Offer including without limitation the Prospectus, the Letter of
Transmittal or the instructions related thereto;
(b) shall not be obligated to take any action hereunder that might in your
reasonable judgment involve any expense or liability, unless you shall have been
furnished with reasonable indemnity satisfactory to you;
(c) may conclusively rely on and shall be fully protected in acting in good
faith in reliance upon any certificate, instrument, opinion, notice, letter,
facsimile or other document or security delivered to you and reasonably believed
by you to be genuine and to have been signed by the proper party or parties;
(d) may conclusively act upon any tender, statement, request, agreement 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 that you
4
5
shall reasonably believe to be genuine or to have been signed or represented by
a proper person or persons;
(e) may conclusively rely on and shall be fully protected in acting upon
written or oral instructions from any Designated Officer with respect to the
Exchange Offer;
(f) shall not advise any person tendering Outstanding 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 Outstanding Notes;
(g) may consult with your counsel with respect to any questions relating to
your duties and responsibilities, and the advice or written opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by you hereunder in good faith and in
accordance with such advice or written opinion of such counsel;
(h) 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 an indemnity reasonably satisfactory to you;
(i) shall not be liable for any action which you may do or refrain from
doing in connection with this Agreement except for your gross negligence,
willful misconduct or bad faith; and
(j) shall 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
Issuers.
15. You shall take such action as may from time to time be requested by any
Designated Officer (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, the Letter of Transmittal and
the Notice of Guaranteed Delivery, 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 Issuers
shall furnish you with copies of such documents at your request.
16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to Xxxxxxx Xxxxxx, Vice President and Controller
of the Issuers, and such other person or persons as the Issuers may request,
daily (and more frequently during the week immediately preceding the Expiration
Date, if reasonably requested) up to and including the Expiration Date, as to
the principal amount of the Outstanding Notes that 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 and items covered by Notices of Guaranteed
Delivery. In addition, you will also inform, and cooperate in making available
to, the Company or any such other person or persons as the Company reasonably
requests in writing from time to time prior to the Expiration
5
6
Date of such other information as they or such person or persons reasonably
request. Such cooperation shall include, without limitation, the granting by you
to the Issuers and such person or persons as the Issuers may reasonably 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
Issuers shall have received information in sufficient detail to enable it to
decide whether to extend the Exchange Offer.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and 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 Issuers at the address set forth below for notices.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to compensation as agreed upon and set forth in The Chase Manhattan
Bank's Schedule of fees and reimbursement of reasonable out-of-pocket expenses
(including attorney's fees and expenses) incurred in connection with the
Exchange Offer.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them to the
extent necessary to perform your duties hereunder. 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 the
rights, duties, liabilities and indemnification of you as Exchange Agent, which
shall be controlled by this Agreement.
20. (a) The Issuers agree to indemnify and hold you harmless in your
capacity as Exchange Agent hereunder against any liability, cost, tax (other
than any income tax), claim or expense, including reasonable attorneys' fees and
disbursements, arising out of or in connection with any action taken or omitted
to be taken by the Exchange Agent in connection with its acceptance or
performance of it duties under the Agreement and the documents related thereto,
including without limitation, any act, omission, delay or refusal made by you in
reasonable 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 Outstanding Notes 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 Outstanding Notes; provided, however, that
the Issuers shall not be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of your gross negligence,
willful breach of this Agreement, willful misconduct or bad faith. You shall
notify the Issuers in writing of the assertion of any claim against you ;
provided however, that your failure so to notify shall not excuse the Issuers
from their obligations hereunder to except to the extent such failure to notify
shall prejudice or cause damage to the Issuers. The Issuers shall be entitled to
participate at its own expense in the defense of any such claim or other action,
and, if the Issuers so elects, shall assume the defense of any suit brought to
enforce any such claim. In the event that the Issuers shall assume the defense
of any such suit, it shall not be
6
7
liable for the fees and expenses of any additional counsel thereafter retained
by you so long as the Issuers shall retain counsel reasonably satisfactory to
you to defend such suit. You shall not compromise or settle any such action or
claim without the consent of the Issuers, provided that the Issuers shall not be
entitled to assume the defense of any action if representation of the parties by
the same legal counsel would, in the reasonable opinion of counsel for the
Exchange Agent, be inappropriate due to actual or potential conflicting
interests between the parties. This indemnification shall survive the release,
discharge, termination and/or satisfaction of this Agreement.
(b) You agree that, without the prior written consent of the Issuers (which
consent shall not be unreasonably withheld), you will not settle, compromise or
consent to the entry of 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 or the
Issuers or any of its controlling persons is an actual or potential party to
such claim, action or proceeding), unless such settlement, compromise or consent
includes an unconditional release of the Issuers and controlling persons from
all liability arising out of such claim, action or proceeding.
21. 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.
22. All communications, including notices, required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly given
if (i) delivered personally with receipt acknowledged, (ii) sent by registered
or certified mail, return receipt requested, (iii) transmitted by facsimile
(which shall be confirmed by telephone and by a writing sent by registered or
certified mail on the business day that such facsimile is sent), or (iv) sent by
recognized overnight courier for next business day delivery, addressed to the
parties at the addresses or facsimile numbers as any party shall hereafter
specify by communication to the other parties in the manner provided herein:
If to the Issuers:
USA Networks, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx
Vice President and Controller
with a copy to:
Xxxxxx, Xxxxx & Xxxxx LLP
1330 Avenue of the Americas
7
8
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
If to the Exchange Agent:
The Chase Manhattan Bank
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
with a copy to:
Xxxxxx & Xxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxx
23. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
24. 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.
25. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
paragraph 18 and 20 and any outstanding obligation of the Exchange Agent shall
survive the termination of this Agreement.
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
8
9
USA NETWORKS, INC.
By:_________________________
Name:
Title:
USANi LLC
By:_________________________
Name:
Title:
Accepted as of the date first above written:
THE CHASE MANHATTAN BANK, as Exchange Agent
By:________________________
Name:
Title:
9
