EXHIBIT (d)(8)
Deutsche Bank
Aktiengesellschaft
Bertelsmann, Inc.
666 Fifth Avenue
New York, NY 10103 February 26, 1987
Gentlemen:
We are pleased to advise you that Deutsche Bank AG, New York Branch and/or
Cayman Islands Branch (the "Bank") makes available to Bertelsmann, Inc. (the
"Borrower") a credit facility (the "Facility'") in the amount of $50,000,000,
subject to the usual credit factors remaining satisfactory and the following
terms and conditions:
Availability/Interest: The Facility may be utilized in any one or
more of the following ways, provided the
aggregate principal amount outstanding at
any one time under all of the following
does not exceed $50,000,000:
a) Domestic dollar loans, payable on demand
("Demand Loans"), bearing interest at a per
annum rate equal to the Bank's floating
prime lending rate; and
b) Eurodollar loans with interest periods
from 7 days up to 6 months ("Eurodollar
Loans"), having a per annum interest rate
of
- 1/4 % above IBR ("IBR" means the
interbank market rate payable by the
Bank for U.S. Dollar deposits with
periods corresponding to the terms of
and in amounts equal to the loans
selected by the Borrower), effective
from February 26, 1987 until December
31, 1987;
- 3/8% above IBR, effective from
January 1, 1988 until December 31, 1989;
- 1/2% above IBR, effective from
January 1, 1990 until December 31, 1991;
and
- 5/8% above IBR, effective from
January 1, 1992 until
c) Fixed-rate term loans ("Term Loans")
with interest periods of 1 year, 2 years
and/ or 3 years, bearing per annum interest
rates of 3/8% above IBR and 1/2% above IBR
for any interest period effective from year
4 until December 31, 1992.
It is understood that the interest periods of
Eurodollar loans and/or Term Loans shall not exceed
the Final Maturity as defined below.
Prepayments of principal of Eurodollax loans and/or
Term Loans are not permitted except in the event
that any change in any applicable law or regulation
or in the interpretation thereof by any governmental
authority shall make it unlawful for the Bank to
give effect to such obligations to the Borrower, in
which case the Borrower shall upon notice to that
effect from the Bank, repay to the Bank the
aggregate unpaid principal amount of all Eurodollar
loans and/or Term Loans together with accrued
interest thereon and all other amounts then owed by
the Borrower for Eurodollar loans and/or Term Loans.
The Borrower shall pay to the Bank all costs
incurred by the Bank in connection with such
prepayment and compensate the Bank for any loss
suffered by the Bank by reason of such payment not
being effected at the end of an interest period.
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At any time the Bank shall have the right to
transfer any and all loans made available under this
letter agreement to any other lending office of the
Deutsche Bank group.
Repayment and Final Any and all obligations and liabilities incurred
Maturity: under this letter agreement that are outstanding on
December 31, 1992 ("Final Maturity") shall be due and
payable at such maturity.
Commitment Fee: The Borrower agrees to pay to the Bank a commitment
fee at a per annum rate of 3/16 percent on the
amount of the average daily unused portion of the
Facility from February 26, 1987, until the Facility
is terminated. The commitment fee shall be computed
on a 360-day basis and be payable quarterly in
arrears, starting March 31, 1987.
Origination Fee: The Borrower also agrees to pay to the Bank an
origination fee of $25,000, payable upon receipt of
this letter agreement.
Documentation: Borrowings under the Facility shall be evidenced by
a Demand Grid Note for Demand loans, a Eurodollar
Grid Note for Eurodollar loans, and a Term
Promissory Note for Term Loans, in the form of
Exhibits A, B, and C attached hereto, respectively.
Garantie: The borrowings under the Facility shall be supported
at all times by the Garantie of Bertelsmann
Aktiengesellschaft, D-4830 Guetersloh, in the form
of Exhibit D attached hereto. As long as the Bank
shall not be in possession of such duly executed
Garantie, any amount outstanding under the Facility
shall be deemed covered by the Garantie of
Bertelsmann Aktiengesellschaft, D-4830 Guetersloh,
dated as of December 15, 1986.
Pari Passu Clause: If and as long as other debt of the Borrower or any
of its subsidiaries is secured by whatever means,
the Borrower will at its expense also secure or
cause to be secured the Demand Grid Note, the
Eurodollar Grid Note, and the Term Note executed
under this agreement by such means equally and
ratably with all other debt thereby secured.
Financial Statements: As long as the Facility remains outstanding, the
Borrower will provide the Bank annually with any
financial information which the Bank may reasonably
request from time to time.
This letter agreement shall be governed by and construed in accordance with the
laws of the State of New York.
If the terms and conditions of the Facility are satisfactory, please sign and
return to the Bank the enclosed copy of this letter, together with the duly
executed notes in form of Exhibits A, B, and C, and the Garantie as Exhibit D.
Sincerely yours,
Deutsche Bank AG
New York Branch/Cayman
Islands Branch
/s/ Detlev Staecker /s/ Werner Kuehne
---------------------------- -----------------
Detlev Staecker Werner Kuehne
Executive Vice President Vice President
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AGREED TO AND ACCEPTED BY:
Bertelsmann, Inc.
By
-----------------------------
Title Vice President
--------------------------
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Deutsche Bank Term Promissory Note
New York, New York
$50,000,000 February 26, 1987
For Value Received, the undersigned (hereinafter, whether one or more,
collectively called the "Borrower") promises to pay to the order of DEUTSCHE
BANK AG, Cayman Islands Branch c/o Deutsche Bank New York Branch (the "Bank")
at its office at 9 West 57th Street, New York, New York 10019 the sum FIFTY
MILLION Dollars [in successive installments, each in the amount of $
(except for the last installment, which shall be in the amount of $ ]* or
such other sum as shall be required to satisfy in full the indebtedness
evidenced hereby, payable on [the day of each in each year, commencing] February
26, 1990 and to pay interest on the unpaid principal amount [hereof from time to
time] outstanding from the date hereof until maturity, [on each principal
payment date], at the rate indicated in either (a) or (b) below:
(a) 7.47% per annum; (or)
(b) % per annum in excess of the rate announced by the Bank from time to
time as its prime lending rate of unsecured commercial loans within the United
States (the "prime rate"), which interest rate shall change when and as the
prime rate changes, such rate to be computed, for actual days elapsed, as if
each full calendar year consisted of 360 days (and each full calendar month
consisted of 30 days), and after any stated or accelerated maturity hereof, at
a rate two per cent per annum in excess of the rate hereinbefore provided for,
payable on demand, but in no event in excess of the maximum rate of interest
permitted under applicable law. Interest is due and payable on July 15, 1987,
January 15, 1988, July 15, 1988, January 16, 1989, July 17, 1989, January 16,
1990, and on February 26, 1990.
In consideration of the granting of the loan evidenced by this Note, the
Borrower hereby agrees as follows:
[1. Prepayment. The Borrower shall have the right from time to time upon 10 days
prior written notice to the Bank to prepay all or, in the inverse order of the
maturity thereof, any installment due hereunder, prior to the expressed
maturity thereof without premium or penalty. Each prepayment shall be made
together with payment of accrued interest on the amount prepaid to and
including the date of prepayment.]
2. Representations and Warranties. The Borrower hereby represents and warrants
to the Bank that:
(a) The Borrower is duly organized, validly existing and in good standing
under the laws of the state of .
(b) This Note has been duly authorized, executed and delivered and
constitutes the valid and legally binding obligation of the Borrower,
enforceable in accordance with its terms.
(c) The execution and delivery of this Note, and performance hereunder,
will not violate any provision of law.
(d) There are no material outstanding judgments, actions or proceedings
pending before any court or governmental authority, bureau or agency, with
respect to or threatened against or affecting the Borrower, or any Subsidiary,
except as described on a schedule attached hereto. As used herein, the term
"Subsidiary" or "Subsidiaries" means any corporation or corporations of which
the Borrower, alone, or the Borrower and/or one or more of its Subsidiaries,
owns, directly or indirectly, at least a majority of the securities having
ordinary voting power for the election of directors.
(e) Neither the Borrower nor any Subsidiary is in default under, or in
violation of any term of, any agreement, ordinance, resolution, decree, bond,
note, indenture, order or judgment to which it is a party or by which it is
bound, or by which any of the properties or assets owned by or used in the
conduct of its business is affected. The operations of the Borrower and each
Subsidiary comply in all respects with all laws, ordinances and regulations
applicable to them.
(f) Neither the Borrower nor any Subsidiary is a party to or bound by, nor
are any of the properties or assets owned by it or used in the conduct of its
business affected by, any agreement, ordinance,
_______________
*Information within brackets has been struck from original document.
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resolution, decree, bond, note, indenture, order or judgment, or subject to any
charter or other corporate restriction, which materially and adversely affects
its business, assets or condition, financial or otherwise.
(g) All balance sheets, profit and loss statements and other financial
information heretofore furnished to the Bank are true, correct and complete and
present fairly the financial condition of the Borrower and its Subsidiaries as
at the dates thereof and for the periods covered thereby, including contingent
liabilities of every kind, which financial condition has not materially
adversely changed since the date of the most recently dated balance sheet of
the Borrower heretofore furnished to the Bank.
(h) No part of the proceeds of the loan which is evidenced by this Note
will be used directly or indirectly for the purpose of purchasing or carrying,
or for payment in full or in part of indebtedness which was incurred for the
purpose of purchasing or carrying, any margin stock as such term is defined in
ss.221.3 of Regulation U of the Board of Governors of the Federal Reserve
System.
3. Financial Statements. The Borrower shall deliver to the Bank:
(a) Annually, as soon as available, but in any event with 180 days after
the last day of each of its fiscal years, consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries, as at such last day of the
fiscal year, and consolidated and consolidating statements of income and
retained earnings and changes in financial position, for such fiscal year, each
prepared in accordance with generally accepted accounting principles
consistently applied, in reasonable detail, such consolidated statements to be
certified without qualification by a firm of independent certified public
accountants satisfactory to the Bank.
(b) As soon as available, but in any event within 90 days after the end of
the Borrower's first three fiscal quarterly periods, the consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as of the
last day of such quarter, and consolidated and consolidating statements of
income and retained earnings and changes in financial position, for such
quarter, all in reasonable detail each such statement to be certified by the
chief financial or accounting, officer of the Borrower as having been prepared
in accordance with generally accepted accounting principles consistently
applied (subject to year-end and adjustments).
(c) Promptly after a written request therefor, such other financial data
or information as the Bank may reasonable request from time to time.
(d) At the same time as it delivers the financial statement required under
the provisions of subparagraph 3(a) at 3(b), a certificate signed by the
president and the chief financial, or chief account, officer of the Borrower,
to the effect that no Event of Default hereunder or under any other agreement
to which the Borrower or any Subsidiary is a party or which it is bound, or by
which any of its properties or assets may be affected, and no event which, with
the giving notice or the lapse of time, or both, would constitute such an Event
of Default, has occurred and specifying in reasonable detail the exceptions, if
any, to such statement.
4. Affirmative Covenants. The Borrower will, and will cause each Subsidiary to:
(a) maintain adequate insurance;
(b) duly pay and discharge all taxes or other claims which might become a
lien upon any of its property except to the extent that such items are being in
good faith appropriately contested;
(c) maintain, preserve and keep its properties in good repair, working
order and condition, and make all reasonable repairs, replacements, additions,
betterments and improvements thereto;
(d) conduct its business in substantially the same manner and in
substantially the same fields as such business is now carried on and conducted;
(e) comply with all statutes, rules and regulations and maintain its
corporate existence;
(f) pay all stamp or issuance taxes, if any, payable by reason of the
execution, delivery of issuance of this Note under any applicable ordinance or
statute now existing or hereafter enacted, and the Borrower will at all times
indemnify and hold harmless the Bank against any liability in respect thereof;
[(g) permit the Bank to make or cause to be made, at the Borrower's
expense, inspections and audits
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<PAGE>
of any books, records and papers of the Borrower and to make extracts therefrom
at all such reasonable times and as often as the Bank may reasonably require;]
(h) use the proceeds of the loan evidenced by this Note for the following
purposes and for no other purposes: capital investments in Doubleday and RCA
operations
[(i) maintain at all times an excess of consolidated current assets over
consolidated current liabilities of at least $ and a ratio of consolidated
current assets to consolidated current liabilities of at least
to (consolidated current liabilities) to be determined in accordance
with generally accepted accounting principles, consistently applied);
(j) maintain at all times consolidated tangible net worth in an amount not
less than $ ("tangible net worth" to be equal to the sum of capital surplus,
earned surplus and capital stock minus deferred charges, intangibles and
treasury stock, all determined in accordance with generally accepted accounting
principles consistently applied) and maintain at all times a ratio of total
consolidated liabilities to consolidated tangible net worth of not more than
to (total consolidated liabilities to be determined in accordance
with generally accepted accounting principles, consistently applied);]
(k) comply with the further provisions, if any, set forth in Paragraph 14
hereof.
5. Negative Covenants. Except with the consent in writing of the Bank, the
Borrower will not, and will not permit any Subsidiary to:
[(a) incur, or permit to exist, any ________ for borrowed money, exclusive
of borrowings hereunder and of any other loans made by the Bank in its
discretion to the Borrower or any Subsidiary.]
(b) enter into any merger or consolidation or sell or lease or otherwise
dispose of all or any substantial part of its assets, other than sales in the
ordinary course of business; except that any Subsidiary may merge into or
consolidate with any other Subsidiary may merge into or consolidate with any
other Subsidiary which is wholly owned by the Borrower or its Parent, and any
Subsidiary which is wholly owned by the Borrower may merge with or consolidate
into the Borrower provided that the Borrower is the surviving corporation;
[(c) lend or_______ money, ____________ in (by capital contribution, loan,
purchase or otherwise) any firm, corporation, or other person except
investments in United States Government obligations and certificates of deposit
of any banking institution with combined capital and surplus of at least
$200,000,000.
(d) create, assume, or permit to exist, any mortgage, pledge, lien or
encumbrance of or upon, or security interest in, any of its property or assets
now owned or hereafter acquired except (i) mortgages, liens, pledges and
security interest in favor of the Bank; (ii) other liens, charges and
encumbrances incidental to the conduct of its business or the ownership of its
property and assets which were not incurred in connection with the borrowing of
money or the obtaining of advances or credit and which do not materially impair
the use thereof in the operation of its business; and (iii) liens for taxes or
other governmental charges which are not delinquent or which are being
contested in good faith and for which a reserve shall have been established in
accordance with generally accepted accounting principles;]
(e) assume, endorse, be or become liable for or guarantee the obligations
of any person, except by the endorsement of negotiable instruments for deposit
or collection in the ordinary course of business;
(f) declare or pay any dividends on its capital stock (other than
dividends payable solely in shares of its own common stock), or purchase,
redeem,, retire or otherwise acquire any of its capital stock at any time
outstanding except that any Subsidiary wholly-owned by the Borrower or its
Parent, may declare and pay dividends to, and purchase, redeem, retire and
otherwise acquire as capital stock from, the Borrower or its Parent;
(g) expend in the aggregate, for the Borrower and all Subsidiaries, in
excess of $ in any fiscal year in the acquisition of fixed assets.
6. Collateral Security. As collateral security for the payment of any and all
sums owing under this Note and all other obligations, direct or contingent,
joint, several or independent, of the Borrower (which term as used in this
Paragraph 6 and in Paragraph 8 shall be
6
<PAGE>
deemed to include each Subsidiary and each endorser or guarantor hereof) now or
hereafter existing, due or to become due to, or held, or to be held by, the
Bank, whether created directly or acquired by assignment or otherwise (all of
such obligations, including this Note, are hereinafter called the
"Obligations"), each Borrower hereby grants to the Bank a lien on and security
interest in any and all deposits or other sums at any time credited by or due
from the Bank to the Borrower, whether in regular or special depository
accounts or otherwise, and any and all monies, securities and other property of
the Borrower, and the proceeds thereof, now or hereafter held or received by or
in transit to the Bank from or for the Borrower, and the proceeds thereof, now
or hereafter held or received by or in transit to the Bank from or for the
Borrower, whether for safekeeping, custody, pledge, transmission, collection or
otherwise, and any such deposits, sums, monies, securities and other property,
may at any time after the occurrence of any Event of Default be set-off,
appropriated and applied by the Bank against any of the Obligations whether or
not such Obligations are then due or are secured by any collateral, or, if they
are so secured, whether or not such collateral held by the Bank is considered
to be adequate.
7. Events of Default. If any one or more of the following events ("Events of
Default") shall occur, the entire unpaid balance of the principal of and
interest on the Obligations shall immediately become due and payable upon
written notice to that effect given to the Borrower by the Bank except that in
the case of the occurrence of any Event of Default described in subparagraph
(f) of this Paragraph 7, no such notice shall be required:
(a) Failure to make any payment of principal or interest in respect of any
of the Obligations when due, or;
(b) Failure to observe any of the agreements of the Borrower contained in
Paragraph 4 or 5 hereof; or,
(c) Failure by the respective parties hereunder at thereunder to perform
any other term, condition or covenant of this Note, of any other agreement,
instrument or document delivered pursuant hereto or in connection herewith or
therewith which shall remain unremedied for a period of 15 days after notice
thereof shall have been given by the Bank to the Borrower; or,
(d) (i) Failure to perform any term, condition or covenant of any bond,
note, debenture, loan agreement, indenture, guaranty, trust agreement, mortgage
or other instrument or agreement in connection with the borrowing of money or
the obtaining of advances or credit to which the borrowing of money or the
obtaining of advances or credit to which the Borrower or any Subsidiary is a
party or by which it is bound, or by which any of its properties or assets may
be affected (a "Debt Instrument"), so that, as a result of any such failure to
perform (regardless of the satisfaction of any requirement for the giving of
appropriate notice thereof or the lapse of time), the indebtedness included
therein or secured or covered thereby may be declared due and payable prior to
the date on which such indebtedness would otherwise become due and payable; or
(ii) Any event or condition referred to in any Debt Instrument shall occur
or fail to occur, so that, as a result thereof (regardless of the satisfaction
of any requirement for the giving of appropriate notice thereof or the lapse of
time), the indebtedness included therein or secured or covered thereby may be
declared due and payable prior to the date on which such indebtedness would
otherwise become due and payable; or,
(iii) Any indebtedness included in any Debt Instrument or secured or
covered thereby is not paid when due; or,
(e) Any representation or warranty made in writing to the Bank in this
Note or in connection with the making of the loan evidenced hereby or any
certificate, statement or report made in compliance with this Note shall have
been false in any material respect when made; or,
(f) The Borrower or any Subsidiary or any endorser or guarantor hereof
shall make an assignment for the benefit of creditors, file a petition in
bankruptcy, be adjudicated insolvent or bankrupt, petition or apply to any
tribunal for the appointment of a receiver or any trustee for it or a
substantial part of its assets, or shall commence any proceeding under any
bankruptcy, reorganization, arrangement readjustment of debt, dissolution, or
liquidation law or statute of any jurisdiction, whether now or hereafter in
effect; or if there shall have been filed any such petition or application, or
any such proceeding shall have been commenced against it, which remains
undismissed for a period of thirty days or more; or the Borrower or any
Subsidiary or endorser or guarantor hereof by any act or
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omission shall indicate its consent to approval of or acquiescence in any such
petition, application or proceeding or the appointment of a receiver of or any
trustee for it or any trustee for it or any substantial part of any of its
properties, or shall suffer any such receivership or trusteeship to continue
undischarged for a period of thirty days or more; or,
(g) Any judgment against the Borrower or any Subsidiary or any attachment,
levy or execution against any of its properties for any amount shall remain
unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period
of sixty days or more; or,
(h) The Bank shall have determined, in its sole discretion, that one or
more conditions exist or events have occurred which may result in a material
adverse change in the business, properties or financial condition of the
Borrower; or
(i) The Garantie of Bertelsman AG for $50,000,000 shall cease to exist.
8. Remedies.
(a) In the event of the occurrence of any Event of Default, the Bank may,
but shall not be required to (i) proceed to apply to the payment hereof the
balance of the credit of any account or accounts maintained with the Bank by
the Borrower and (ii) sell all or any part of the collateral security (on all
of which the Borrower does hereby give to the Bank a continuing lien, security
interest and/or right of set-off) at public or private sale or sales, or at any
exchange or broker's board, or at the Bank's office, at such prices as it shall
deem best, for cash or credit, with the right of the Bank at such sale to
purchase all or any part thereof, free from any right or equity of redemption,
applying the net proceeds of such sale to the payment of this Note and of any
other liabilities claims or obligations to the Bank of the Borrower or of any
partnership in which the Borrower is a partner, all of whom together with any
endorser or guarantor hereby expressly agree to remain jointly and severally
liable for any deficiency. The Bank may exercise any other right to remedy
hereby granted or allowed to it by law including but not limited to the rights
and remedies of a Secured Party under the Uniform Commercial Code of New York,
and each and every right and remedy hereby granted to the Bank or allowed to it
by law shall be cumulative and not exclusive the one of the other and may be
exercised by the Bank from time to time and as often as may be necessary. The
Bank shall have at any time in its discretion the right to enforce collection
and payment of any of the collateral security of appropriate action or
proceedings, and the net amounts received therefrom, after deduction of all
costs and expenses incurred in connection therewith, shall be applied on
account of this Note and any other indebtedness or liabilities of the Borrower
aforesaid all without notice to the Borrower. The Bank may, but shall not be
bound to, take any steps necessary to preserve any rights in the collateral
against prior parties, which the Borrower hereby agrees to do. Unless the
collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, the Bank will give the Borrower
reasonable notice of the time and place of any public sale thereof or of the
time after which any private sale or other intended disposition is to be made.
Five days prior notice shall be deemed reasonable notice. The Bank may repledge
all or any of the collateral security for any sum not in excess of the amount
due hereunder at the date of such repledge with any person, firm or corporation
for any purpose whatsoever and may assign and transfer this Note to any other
person, firm or corporation and may deliver and repledge the collateral
security or any part thereof to the assignee ____ transferee of this Note, who
shall thereupon become vested with all the powers and rights above given to the
Bank ____ respect thereof, and the Bank shall thereafter be forever released
and discharged of and from all responsibility ____ liability to the Borrower
for or on account of the collateral security so delivered.
In the event that this Note is placed in the hands of an attorney for
collection by reason of any default hereunder, the Borrower agrees to pay
attorney's fees in the amount of 20 ____ of the unpaid principal balance hereof
which the Borrower agrees to be reasonable. The Borrower promises to pay any
expenses of any nature as soon as incurred whether in or out of court and
whether incurred before or after this Note shall become due at its maturity
date or otherwise and costs which the Bank may deem necessary or proper in
connection with the satisfaction of the indebtedness or the administration,
supervision, preservation, protection (including but not limited to maintenance
of adequate insurance) of or the realization upon the collateral.
(b) Each Borrower hereby waives presentment, demand ____ payment, protest,
notice of protest, notice of dishonor, and any or all other notices or demands
in connection with ____ delivery, acceptances,
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performance, default, or enforcement of this Note, and consents to any and all
delays, extensions, time, renewals, releases of any Borrower and of any
security waivers or modifications that may be granted or consented ____ by the
Bank with regard to the time of payment or with respect to any other provisions
of this Note and agrees to ____ no such action or failure to act on the part of
the Bank ____ in any way other or impair the Obligations of any Borrower or be
construed as a waiver by the Bank of, or otherwise affect, its right to avail
itself of any remedy hereunder ____ the same ______ and effect as if each
Borrower had expressly consented _______ such action or inaction upon the part
of ____ Bank.
9. Compensating Balances. The Borrower shall maintain with the Bank during each
calendar quarter in which any of the Obligations shall be outstanding, non-
interest bearing deposits with average daily collected balances equal to not
less than % of the Obligations outstanding during such quarter. In the event
that the average daily collected balance of such deposits during any calendar
quarter is less than the amount required pursuant to the preceding sentence,
the Borrower shall pay to the Bank, on demand, a special deficiency charge
equal to interest on the deficiency during the entire quarter at the average
daily rate applicable to this Note during such quarter and the Bank may charge
any account of the Borrower therefor. Notwithstanding the foregoing, in no
event shall the total amount of interest and special deficiency charges payable
by the Borrower hereunder exceed the maximum amount permitted to be charged
under applicable law.
10. Payments. All payments by the Borrower on account of principal or interest
shall be made in lawful money of the United States of America in immediately
available funds. If any payment of principal or interest becomes due on a day
on which the banks in New York, New York, are required or permitted by law to
remain closed, such payment may be made on the next succeeding business day on
which such banks are open, and such extensions shall be included in computing
interest in connection with such payment.
11. Miscellaneous.
(a) All agreements, representations and warranties made herein shall
survive the delivery of this Note. The Borrower waives trial by jury, set-off
and counterclaim of any nature or description in any litigation in any court
with respect to, in connection with, or arising out of, this Note or any
instruments or document delivered pursuant hereto or the validity, protection,
interpretation, collection or enforcement hereof.
(b) No modification or waiver of or with respect to any provision of this
Note, or consent to any departure by the Borrower from any of the terms or
conditions hereof, shall in any event be effective unless it shall be in
writing and signed by the Bank, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on the Borrower in any case shall, of itself, entitle it to
any other or further notice or demand in similar or other circumstances.
(c) Each and every right granted to the Bank hereunder or under any other
document delivered hereunder or in connection herewith, or allowed it by law or
equity, shall be cumulative and may be exercised from time to time. No failure
on the part of the Bank or the holder of this Note to exercise and no delay in
exercising, any right shall operate as a waiver thereof, nor shall any single
or partial exercise of any right preclude any other or future exercise thereof
or the exercise of any other right.
12. Notices. All notices, requests and other communications pursuant to this
Note shall be in writing either by letter (delivered by hand or sent by
certified mail, return receipt requested) or telegram, addressed as follows:
(a) if to the Borrower:
and,
(b) if to the Bank;
Any notice, request or communication hereunder shall be deemed to have
been given when deposited in the mails, postage prepaid, or in the case of
telegraphic notice, when delivered to the telegraph company, addressed as
aforesaid. Any party may change the
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person or address to whom or which the notices are to be given hereunder, but
any such notice shall be effective only when actually received by the party to
whom it is addressed.
13. Governing Law; Severability. This Note and the rights and obligations of
the parties hereunder shall be construed and interpreted in accordance with the
laws of the State of New York. The provisions of this Note are severable and if
any clause or provision shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision in this Note in any jurisdiction.
14. Special Provisions. Increased costs of funding. In the event that a
determination is made by the Bank in its sole discretion that reserves must be
maintained with any Federal Reserve Bank of the United States, with any other
governmental authority whatsoever or otherwise pursuant to any regulation of
the Board of Governors of the Federal Reserve System or otherwise, in
connection with the Eurodollar loan evidenced hereby or the funding thereof the
undersigned agrees to pay and hold the Bank harmless from and against the cost
of acquiring and/or maintaining any such reserves. If any principal payment
hereunder is made for any reason whatsoever on a date other than the maturity
date, the undersigned (i) shall pay interest accrued thereon and (ii) shall on
demand indemnify the Bank against all losses, including loss of profit and
expenses, suffered by it in liquidating or otherwise employing deposits
acquired to fund such loans until the stated maturity. A certificate of the
Bank as to the amount required to be paid by the undersigned under this
paragraph shall accompany such demand and shall be, except in the case of
manifest error or in the absence of good faith, final and conclusive.
BERTELSMANN, INC.
---------------------------
(Borrower)
By Vice President
-------------------------
Title
10
<PAGE>
Deutsche Bank
Aktiengesellschaft
Bertelsmann, Inc. dated as of March 3, 1988
666 Fifth Avenue Dept.:CAD/SLS/rhl
New York, NY 10103 Tel.: (212) 940-7283
Ref.: CADCI1/633
Re: Duplicate First Amendment to the Letter Agreement dated as of February 26,
1987
-------------------------------------------------------------------------------
Gentlemen:
Reference is made to the above-mentioned Letter Agreement between the Borrower
and the Bank. Terms used therein are used with the same meaning in this
amendment, superseding the original First Amendment of even date, which may
have gone astray.
The Bank is pleased to confirm that the Final Maturity Date has been extended
to July 1, 1993.
All other terms and conditions of the Letter Agreement, as amended, shall
remain in full force and effect until further notice.
To signify agreement with the foregoing, kindly sign and return to the Bank the
enclosed copy of this letter.
Sincerely yours,
Deutsche Bank AG
New York Branch/
Cayman Islands Branch
/s/ Schoenrock /s/ Werner Kuehne
-------------------------- -----------------
Annette Schoenrock Werner Kuehne
Assistant Treasurer First Vice President
AGREED TO AND ACCEPTED BY:
Bertelsmann, Inc.
By: ___________________________ By: ___________________________
Title:_________________________ Title:_________________________
11
<PAGE>
Deutsche Bank
Aktiengesellschaft
Bertelsmann, Inc. June 12, 1989
666 Fifth Avenue Dept.: CAD/BFD
New York, NY 10103 Ref.: CADCI1/1320
Tel.: (212) 940-9893
Re: Second Amendment to the Letter Agreement dated as of February 26, 1987,
as amended
--------------------------------------------------------------------------------
Gentlemen:
Reference is made to the above-mentioned Letter Agreement between the Borrower
and the Bank. Terms used therein are used with the same meaning in this
amendment.
The Bank is pleased to confirm that the Final Maturity Date has been extended
to July 1, 1994.
All other terms and conditions of the Letter Agreement, as amended, shall
remain in full force and effect until further notice.
To signify agreement with the foregoing, kindly sign and return to the Bank the
enclosed copy of this letter. Kindly also arrange for the guarantor,
Bertelsmann Aktiengesellschaft, to further extend the expiry date of the
"Garantie" dated June 30, 1987 to July 1, 1994.
Sincerely yours,
Deutsche Bank AG
New York Branch/
Cayman Islands Branch
/s/ Helmut von Natzmer /s/ Peter Reimers
---------------------- -----------------
Dr. Helmut von Natzmer Peter Reimers
Executive Vice President Vice President
AGREED TO AND ACCEPTED BY:
Bertelsmann, Inc.
By: ___________________________ By: ___________________________
Title:_________________________ Title:_________________________
12
<PAGE>
Deutsche Bank
Aktiengesellschaft
Bertelsmann, Inc. June 15, 1990
1133 Avenue of the Americas Dept.: CAD/MS/emk
New York, NY 10036 Ref.: CADCI1/1905
Tel.: (212) 474-8634
Attn: Mr. Peter W. Olson
President
Re: Third Amendment to the Letter Agreement dated as of February 26, 1987,
as amended on March 3, 1988 and June 12, 1989.
--------------------------------------------------------------------------------
Gentlemen:
Reference is made to the above-mentioned Letter Agreement between the Borrower
and the Bank. Terms used therein are used with the same meaning herein. The
Letter Agreement is amended in the following ways:
1. The Final Maturity Date has been extended to July 1, 1995.
2. Eurodollar loans shall be evidenced by the Eurodollar Grid Note dated June
15, 1990, enclosed herein. Upon receipt by the Bank of the new Eurodollar
Grid Note, the Eurodollar Grid Note dated February 26, 1987 will be
automatically cancelled and any outstandings thereunder will become and be
considered in all respects as outstandings under the new Eurodollar Grid
Note.
3. The per annum interest rate for Eurodollar loans is amended to 1/4% above
IBR effective from the date of this Third Amendment until the Final
Maturity Date.
4. The commitment fee is reduced from 3/16% per annum to 1/10% per annum,
effective as of June 15, 1990.
Also, please arrange for the guarantor, Bertelsmann Aktiengesellschaft, to
extend the expiry date of the "Garantie" dated June 30, 1987 to July 1, 1995.
All other terms and conditions of the Letter Agreement, as amended, shall
remain in full force and effect until further notice.
To signify agreement with the foregoing, kindly sign and return to the Bank the
enclosed copy of this letter along with the duly executed Eurodollar Grid Note.
Sincerely yours,
Deutsche Bank AG
New York Branch/
Cayman Islands Branch
/s/ Detlev Staecker /s/ Jens Hardekopf
------------------- ------------------
Detlev Staecker Jens Hardekopf
Executive Vice President Vice President
13
<PAGE>
AGREED TO AND ACCEPTED BY:
Bertelsmann, Inc.
By: ___________________________ By: ___________________________
Title:_________________________ Title:_________________________
14
<PAGE>
Deutsche Bank Eurodollar Grid Note
US$ 50,000,000 June 15, 1990
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
Deutsche Bank AG (the "Bank"), Cayman Islands Branch in lawful money of the
United States of America and in immediately available funds the principal
amount of ----------------FIFTY MILLION UNITED STATES DOLLARS--------------
(US$ 50,000,000) or, if less, the unpaid principal amount of all Eurodollar
loans made by the Bank's Cayman Islands Branch from time to time, at the
principal office of Deutsche Bank AG, New York Branch, New York, New York, on
the dates endorsed on the Schedule (the "Grid") attached hereto.
The undersigned also promises to pay interest on the unpaid principal
amounts made available by the Bank hereunder prior to maturity at the rates per
annum set forth on the Grid. The undersigned hereby promises to pay the Bank
interest, payable upon demand, on any amount of principal remaining unpaid
hereunder after maturity (whether by acceleration or otherwise) until paid in
full at a rate per annum equal to 2 percent above the Bank's Prime Lending
Rate. "Prime Lending Rate" shall mean the rate announced by the Bank from time
to time as its prime lending rate for unsecured commercial loans within the
United States; any change in the interest rate resulting from a change in the
Prime Lending Rate shall be effective on the effective date of each change in
the Prime Lending Rate announced by the Bank. Interest shall be computed for
the exact number of days elapsed on the bank basis of a year of 360 days.
Interest shall commence to accrue on the date of each Eurodollar loan and be
payable in lawful money of the United States of America at the office of the
Bank listed above on each such loan's maturity date stated on the Grid (unless
such loan has a maturity greater than three months in which event interest
shall also be payable quarterly in arrears commencing on the last business day
of the calendar quarter next following the date of such loan). The undersigned
authorizes the Bank to debit its account with the Bank's New York Branch with
respect to all payments hereon.
At the time of the making of any Eurodollar loan hereunder and upon each
repayment of principal the Bank shall, and is hereby authorized to, make a
notation on the Grid of the date and the amount and maturity of each such
Eurodollar loan, the interest rate applicable thereto, and each principal
repayment. However, the failure to make any such notation shall not limit or
otherwise affect the undersigned's obligations hereunder with respect to any
such Eurodollar loan or repayment of principal. Although this Eurodollar Grid
Note is dated the date of issue, interest in respect hereof shall be payable
only for the period during which the Eurodollar loans evidenced hereby are
outstanding and, although the stated amount hereof may be higher, this
Eurodollar Grid Note shall be enforceable, with respect to the undersigned's
obligation to pay the principal amount hereof and interest hereon, only to the
extent of the unpaid principal amount of Eurodollar loans and accrued and
unpaid interest evidenced hereby.
The term "Liabilities" shall include the liability evidenced by this
Eurodollar Grid Note and all other liabilities, direct or contingent, joint,
several or independent, of the undersigned now or hereafter existing, due or to
become due to, or held or to be held by, the Bank, whether created directly or
acquired by assignment or otherwise.
UPON non-payment when due of any of the Liabilities, or if it appears at
any time that any representation in any financial or other statement of the
undersigned delivered to the Bank by or on behalf of the undersigned, is untrue
or omits any material fact, or if the undersigned (being a partnership or a
corporation) shall be dissolved, or upon insolvency of the undersigned (or any
endorser, guarantor or surety of or upon any of the Liabilities, each being
hereinafter referred to as "Guarantor"), or upon the suspension of business of
the undersigned, or if any indebtedness of the undersigned or any Guarantor for
borrowed money (including guaranties thereof) shall become due and payable by
acceleration of the stated maturity thereof, or if any such indebtedness shall
not be paid when due, or if the undersigned (being a corporation) shall be a
party to any merger or consolidation without the prior written consent of the
Bank, or if the undersigned or any Guarantor fails to perform any agreement
with the Bank, or if the condition or affairs of the undersigned changes in
such manner that, in the opinion of the Bank, its credit risk is increased or
if the Bank deems itself insecure for any other reason, or upon the undersigned
or any partner of the undersigned (if a partnership) being expelled from or
suspended by any securities or commodity exchange, or upon the making by the
15
<PAGE>
undersigned or any Guarantor of an assignment for the benefit of creditors, or
upon the application for the appointment or the appointment of a trustee,
receiver, conservator, rehabilitator or similar officer for the undersigned or
any Guarantor, or for any of the property of the undersigned or any Guarantor,
or upon the taking possession by any public official having regulatory powers
over the undersigned of any of the property of the undersigned for the purpose
of conserving the assets of the undersigned, or upon any proceedings being
commenced by or against the undersigned or any Guarantor under any bankruptcy,
reorganization, arrangement of debt, insolvency, readjustment of debt,
composition, receivership, winding up, liquidation or dissolution law or
statute of any jurisdiction, THEN AND IN ANY SUCH EVENT, the Bank in its
discretion may, by written notice to the undersigned, declare the principal of
and any accrued interest on all Liabilities to be, whereupon the same shall
become, forthwith due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by the
undersigned.
In the case of any non-payment when due of any Liabilities, the
undersigned shall pay all costs and expenses of every kind for collection,
including all attorneys' fees.
In the event that a determination is made by the Bank in its sole
discretion that reserves must be maintained with any Federal Reserve Bank of
the United States, with any other governmental authority whatsoever or
otherwise pursuant to any Regulation of the Board of Governors of the Federal
Reserve System or otherwise, in connection with the Eurodollar loans evidenced
hereby or the funding thereof, the undersigned agrees to pay and hold the Bank
harmless from and against the cost of acquiring and/or maintaining any such
reserves. If any principal payment hereunder is made for any reason whatsoever
on a date other than the maturity date, the undersigned (i) shall pay interest
accrued thereon and (ii) shall on demand indemnify the Bank against all losses,
including loss of profit and expenses, suffered by it in liquidating or
otherwise employing deposits acquired to fund such loans until the stated
maturity. A certificate of the Bank as to the amount required to be paid by the
undersigned under this paragraph shall accompany such demand and shall be,
except in the case of manifest error or in the absence of good faith, final and
conclusive.
In the event that a determination is made by the Bank in its sole
discretion that the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by the Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on the Bank's capital as a consequence of its
obligations to the undersigned or of the loans to the undersigned evidenced
hereby to a level below that which the Bank could have achieved but for such
adoption, change, or compliance, the undersigned promises to pay on demand to
the Bank such additional amount or amounts as will compensate the Bank for such
reduction. A certificate of the Bank as to the amount required to be paid by
the undersigned under this paragraph shall accompany such demand and shall be,
except in the case of manifest error or in the absence of good faith, final and
conclusive.
No delay on the part of the Bank in exercising any of its options, powers
or rights, or partial or single exercise thereof, shall constitute a waiver
thereof. The options, powers and rights of the Bank specified herein are in
addition to those otherwise created. This Eurodollar Grid Note and the rights
and obligations of the Bank and of the undersigned hereunder shall be governed
by and construed in accordance with the law of the State of New York.
Name: Bertelsmann, Inc.
Address: 666 Fifth Avenue
New York, NY 10103
---------------------
Signature(s)
-----------------------------
(Respective) Title(s), if any: President
-----------------------------
16
<PAGE>
LOAN AND REPAYMENT SCHEDULE
-------------------------------------------------------------------------------
Amount of Unpaid
Amount of Principal Principal Maturity Notation
Date Loan Repayment Balance Date Interest Rate Made by
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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17
<PAGE>
Deutsche Bank
Aktiengesellschaft
Bertelsmann, Inc. June 29, 1991
1133 Avenue of the Americas Dept.: CAD/CP
New York, NY 10036 Ref.: CADCI1/2558
Tel.: (212) 474-8698
Re: Fourth Amendment to the Letter Agreement dated as of February 26, 1987,
as amended
--------------------------------------------------------------------------------
Gentlemen:
Reference is made to the above-mentioned Letter Agreement between the Borrower
and the Bank. Terms used therein are used with the same meaning herein.
We are pleased to inform you that the Final Maturity Date has been extended to
July 1, 1996.
All other terms and conditions of the Agreement shall be unchanged and remain
in full force and effect until further notice.
Please arrange for the guarantor, Bertelsmann Aktiengesellschaft, to extend the
expiry date of the "Garantie" dated June 30, 1987, to July 1, 1996.
This Amendment shall be governed by and construed in accordance with the laws
of the State of New York.
To signify agreement with the foregoing, kindly sign and return to the Bank the
enclosed copy of this Amendment.
Sincerely yours,
Deutsche Bank AG
New York Branch/
Cayman Islands Branch
/s/ Jens Hardekopf /s/ Spear
------------------ ---------
Jens Hardekopf Silvia L. Spear
First Vice President First Vice President
18
<PAGE>
Deutsche Bank
Aktiengesellschaft
Bertelsmann, Inc. dated as of March 3, 1992
1133 Avenue of the Americas Dept.: LEX/CFI-1/RHL
New York, NY 10036 Ref.: LEX/2022
Tel.: (212) 474-8126
Re: Fifth Amendment to Letter Agreement dated February 26, 1987, as amended on
March 3, 1988, June 12, 1989, June 15, 1990, and June 29, 1991 (this
"Agreement")
--------------------------------------------------------------------------------
Gentlemen:
We refer to the Agreement. Unless otherwise defined herein, terms defined
therein are used with the same meaning herein. The Bank is pleased to advise
the Borrower that the Facility has been expanded until January 21, 1993 to
include that certain Standby Letter of Credit No. 839-51974 in the amount of
$11,900,000.00 (the "Letter of Credit"). Until January 21, 1993, therefore, the
Facility may be utilized by the Borrower in the form of domestic dollar loans,
Eurodollar loans, fixed-rate term loans, and/or the Letter of Credit, provided
that the aggregate principal amount outstanding and credit extensions by way of
the Letter of Credit does not exceed $50,000,000.00.
Terms and conditions with respect to the Letter of Credit will be governed by
the duly executed Continuing Letter of Credit Agreement in the form of Exhibit
A hereto, already received by the Bank.
All other terms and conditions of the Agreement shall be unchanged and in full
force and effect.
This Amendment shall be governed by and construed in accordance with the laws
of the State of New York.
19
<PAGE>
If you agree with the foregoing, please sign the enclosed copy of this
Amendment. Also, please obtain the signature of Bertelsmann Aktiengesellschaft,
Guetersloh (the "Guarantor") on the enclosed copy of this Amendment, and return
it to the Bank.
Very truly yours,
Deutsche Bank AG
New York Branch/
Cayman Islands Branch
/s/ Jens Hardekopf /s/ David Wagstaff IV
----------------------- ---------------------
Jens Hardekopf David Wagstaff IV
Director Vice President
AGREED TO AND ACCEPTED BY:
Bertelsmann, Inc.
By: ___________________________ By: ___________________________
Title:_________________________ Title:_________________________
CONSENTED TO AND ACCEPTED BY:
Bertelsmann AG
By: ___________________________ By: ___________________________
Title:_________________________ Title:_________________________
20
<PAGE>
Deutsche Bank
Aktiengesellschaft
Bertelsmann, Inc. June 19, 1992
1133 Avenue of the Americas Dept.: LEX/FMG/LR
New York, NY 10036 Ref.: LEX/CFI-1/2317
Tel.: (212) 474-8126
Re: Sixth Amendment to the Letter Agreement dated February 26, 1987, as amended
--------------------------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the above-captioned Agreement. Unless otherwise defined
herein, terms defined therein are used with the same meaning herein.
The Bank is pleased to inform the Borrower that the Facility has been extended
from July 1, 1996 to July 1, 1997.
Continued availability of the Facility is contingent upon the Bank's receipt of
the duly signed copy of this Amendment and an amendment from Bertelsmann AG
extending the "Garantie" to July 1, 1997.
This Amendment is limited precisely as written and shall not be deemed to be a
consent or waiver of any other term or condition of the Agreement. Except as
modified hereby, all other terms and provisions of the Agreement shall continue
in full force and effect.
This Amendment shall be governed by and construed in accordance with the laws
of the State of New York.
If you agree with the foregoing, please sign and return to the Bank the
enclosed copy of this Amendment.
Very truly yours,
Deutsche Bank AG
New York Branch
Cayman Islands Branch
/s/ Jens Hardekopf /s/ Schoenrock
------------------------ --------------
Jens Hardekopf Annette Schoenrock
Director Assistant Vice President
AGREED TO AND ACCEPTED BY:
Bertelsmann, Inc.
By: ___________________________ By: ___________________________
Title:_________________________ Title:_________________________
21
<PAGE>
Deutsche Bank
Aktiengesellschaft
Bertelsmann, Inc. February 22, 1993
1540 Broadway Dept.: LEX/FMG/LR
New York, NY 10036-4094 Ref.: LEX1/CFI-1/2864
Tel.: (212) 474-8126
Re: Seventh Amendment to the Letter Agreement dated February 26, 1987,
as amended
--------------------------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the above-captioned Agreement. Unless otherwise defined,
terms herein are as defined therein.
The Bank is pleased to inform the Borrower that the Facility has been extended
from July 1, 1997 to July 1, 1998.
Continued availability of the Facility is contingent upon the Bank's receipt of
the duly signed copy of this Amendment and an amendment from Bertelsmann AG
extending the "Garantie" to July 1, 1998.
This Amendment is limited precisely as written and shall not be deemed to be a
consent or waiver of any other term or condition of the Agreement. Except as
modified hereby, all other terms and provisions of the Agreement shall continue
in full force and effect.
This Amendment shall be governed by and construed in accordance with the laws
of the State of New York.
If you agree with the foregoing, please sign and return to the Bank the
enclosed copy of this Amendment.
Very truly yours,
Deutsche Bank AG
New York Branch/
Cayman Islands Branch
/s/ B. Hoeltz /s/ Jens Hardekopf
----------------------------- ------------------
Barbara A. Hoeltz Jens Hardekopf
Vice President Director
AGREED TO AND ACCEPTED BY:
Bertelsmann, Inc.
By: ___________________________ By: ___________________________
Title:_________________________ Title:_________________________
22
<PAGE>
Deutsche Bank
Aktiengesellschaft
Bertelsmann, Inc. February 10, 1994
1540 Broadway Dept.: LEX/MH
New York, NY 10036-4094 Ref.: CFI-1/4026
Tel.: (212) 474-8120
Attn: Mr. Basil Mavrovitis
Vice President & Treasurer
Re: Eighth Amendment (this "Amendment") to the Letter Agreement dated
February 26, 1987, as amended (the "Agreement")
--------------------------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the above-captioned Agreement. Unless otherwise defined
herein, terms defined therein are used with the same meaning herein.
The Bank is pleased to inform the Borrower that the Facility has been extended
from July 1, 1998 to July 1, 1999 (the "Final Maturity Date"). Accordingly, all
references in the Letter Agreement to the Final Maturity Date shall be deemed
references to July 1, 1999.
The effectiveness of this Amendment is contingent upon the Bank's receipt of
the duly signed copy of this Amendment and receipt in writing of the extension
of the "Garantie" of Bertelsmann AG to July 1, 1999.
This Amendment shall be governed by and construed in accordance with the law of
the State of New York.
This Amendment is limited precisely as written and shall not be deemed to be a
consent or waiver of any other term or condition of the Agreement. Except as
expressly modified hereby, all of the terms and provisions of the Agreement
shall continue in full force and effect.
If you agree with the foregoing, please sign and return to the Bank the
enclosed copy of this Amendment and the documentation referred to above.
Very truly yours,
Deutsche Bank AG
New York Branch/
Cayman Islands Branch
/s/ Schoenrock /s/ Jens Hardekopf
----------------------- ------------------
Annette Schoenrock Jens Hardekopf
Vice President Director
Enclosure
AGREED TO AND ACCEPTED BY:
Bertelsmann, Inc.
By: ___________________________ By: ___________________________
Title:_________________________ Title:_________________________
23
<PAGE>
Deutsche Bank
Aktiengesellschaft
Bertelsmann, Inc. April 7, 1995
1540 Broadway Dept.: LEX/MH
New York, NY 10036-4094 Ref.: CFI-1/8766
Tel.: (212) 474-8120
Attn: Mr. Bernie Derlath
Vice President & Treasurer
Re: Ninth Amendment (this "Amendment") to the Letter Agreement dated
February 26, 1987, as amended (the "Agreement")
--------------------------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the above-captioned Agreement. Unless otherwise defined
herein, terms defined therein are used with the same meaning herein.
The Bank is pleased to inform the Borrower that the Agreement, subject to
satisfaction of the conditions precedent set forth below, is amended as
follows:
(i) The Final Maturity Date is hereby extended from July 1, 1999 to July 1,
2000. Accordingly, all references in the Letter Agreement to the Final Maturity
Date shall be deemed references to July 1, 2000 and
(ii) The Borrower may utilize the Facility for issuance of letters of credit
("Letters of Credit") with terms of up to twelve months; provided that (a) no
Letter of Credit shall have an expiry date after the Final Maturity Date, and
(b) the aggregate principal amount of all Eurodollar Loans, Demand Loans and
Term Loans, plus the aggregate amount available under all Letters of Credit
plus the aggregate amount of any unreimbursed drawings thereunder, shall not
exceed US$50,000,000. Each Letter of Credit shall be subject to the Bank's
fees, commissions and out-of-pocket expenses as negotiated on a case-by-case
basis.
All Letters of Credit shall be subject to the terms of the Continuing Letter of
Credit Agreement in the form of Exhibit A attached hereto (already in the
Bank's possession). With respect to each Letter of Credit transaction, which
will be handled in accordance with the Bank's usual practice, the Borrower
shall furthermore have supplied the Bank with the following prior to the
issuance of such Letters of Credit:
1. a duly completed application for a Letter of Credit; and
2. the text of the Letter of Credit in form and substance satisfactory
to the Bank.
It is a condition precedent to the effectiveness of this Amendment that (i) the
Bank shall have received a duly signed copy of this Amendment and the extension
in writing of the "Garantie" of Bertelsmann AG to July 1, 2000 and (ii) the
Bank shall be in possession of copies of all documents evidencing all necessary
corporate action and governmental approvals, if any, with respect to the
Agreement, any amendments thereto and any documents thereunder.
This Amendment shall be governed by and construed in accordance with the law of
the State of New York.
24
<PAGE>
This Amendment is limited precisely as written and shall not be deemed to be a
consent or waiver of any other term or condition of the Agreement. Except as
expressly modified hereby, all of the terms and provisions of the Agreement
shall continue in full force and effect.
If you agree with the foregoing, please sign and return to the Bank the
enclosed copy of this Amendment and the documentation referred to above.
Very truly yours,
Deutsche Bank AG
New York Branch/
Cayman Islands Branch
/s/ Sherine Fanous /s/ B. Hoeltz
--------------------------- -------------
Sherine Fanous Barbara Hoeltz
Assistant Vice President Vice President
25
<PAGE>
EXHIBIT A
Deutsche Bank Continuing Letter of Credit Agreement
New York Branch (Security Agreement)
Gentlemen:
In consideration of your opening from time to time, at our request and in
your discretion in each instance, one or more of your commercial, documentary
or standby letters of credit (each of which is hereinafter called the
"Credit"), we hereby agree with you as follows with respect to each Credit now
or hereafter so opened by you:
1. As to draft under or purporting to be under the Credit, which are
payable in United States Currency, we agree (a) in the case of each sight
draft, to reimburse you at your principal office, New York, New York, on
demand, in United Sates legal tender, the amount paid on such draft, of, if so
demanded by you, to pay to you at said office, in advance in such legal tender
the amount required to pay such draft; and (b) in the case of each acceptance,
to pay to you, at said office, in United States legal tender, the amount
thereof, on demand but in any event not later than one business day prior to
maturity, or in case the acceptance is not payable at said office, then on
demand but in any event in time to reach the place of payment in the course of
the mails not later than one bank business day prior to maturity.
2. As to drafts under or purporting to be under the Credit, which are
payable in currency other than United States Currency, we agree (a) in the case
of each sight draft, to reimburse you, at said office, on demand, the
equivalent of the amount paid, in United States legal tender at the rate of
exchange then current in New York City to cable transfers to the place of
payment in the currency in which such draft is drawn; and (b) in the case of
each acceptance, to furnish you, at said office, on demand, but in any event in
time to reach the place of payment in the course of the mails not later than
two bank business days prior to maturity with first class bankers' demand bills
of exchange to be approved by you for the amount of the acceptance, payable in
the currency of the acceptance and bearing out endorsement, or, if you so
request, to pay to you, at said office, on demand, the equivalent of the
acceptance in United States legal tender at the rate of exchange then current
in New York City for cable transfers to the place of payment in the currency in
which the acceptance is payable. A demand made on one of us shall fix the
exchange rate as to all of us. If for any reason whatsoever there shall be at
the time of your demand for reimbursement or payment no rate of exchange
current in New York City for effective cable transfers to the place of payment
in the currency in which any such draft or other demand by payment is drawn or
any such acceptance is payable, we agree to pay you, on demand in United States
legal tender, an amount which in your sole judgment shall be sufficient to meet
our obligations hereunder, which amount may be applied by you at any time as a
payment on account of such obligations, or, at your option, held as security
therefor; it being understood, however, that we shall remain liable for any
deficiency which may result if such amount in United States legal tender shall
prove to be insufficient to effect full payment or reimbursement to you at the
time when a rate of exchange for such cable transfers shall be again current in
New York City.
3. We also agree that you may debit any of our accounts with you with
respect to your commissions and all charges and expenses (including all
reasonable charges for legal services) paid or incurred by you in connection
with the Credit, plus correspondents' charges, if any, and interest where
chargeable. If any such debit to any such account shall cause an overdraft
thereon, thus creating a debit balance in our account, then we agree that such
debit balance shall accrue interest at a rate per annum equal to 2 percent
above your Prime Lending Rate. "Prime Lending Rate" shall mean the rate
announced by you from time to time as your prime lending rate for unsecured
commercial loans within the United States; any change in the interest rate
resulting from a change in Prime Lending Rate shall be effective on the
effective date of each change in the Prime Lending Rate announced by you.
4. [As security for the prompt and unconditional payment of] As used herein
the term obligations shall mean all of our obligations and liabilities to you
and all of your claims against us, whether arising or incurred under this
Agreement or relating to the Credit or otherwise, whether now existing or
hereafter incurred, and whether now or hereafter owing to or acquired in any
manner by you [(all such obligations, liabilities and claims being hereinafter
referred
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<PAGE>
to as the "Obligations"), we hereby recognize and admit your ownership of, and
agree that you shall have a continuing security interest in and lien on and the
unqualified right to the possession and disposal of: (a) all property shipped
under or relative to the Credit or any drafts drawn thereunder; (b) all
documents accompanying or relative to drafts drawn under the Credit; (c) the
proceeds of the foregoing, whether or not any of such property and/or documents
shall have been released to us upon our order under any form of security
agreement or writing; (d) any and all property of ours in your actual or
constructive possession or in transit to you or to any of your correspondents
from or for us, and upon the proceeds thereof; (e) all deposits (general or
special) and credits of ours with you and any claims by us against you at any
time existing; (f) the proceeds of any or all of the foregoing; and (g) any
additional property in which we have conveyed a security interest to you, which
we agree to convey on your demand (all of which, together with additions,
accessions and substitutions, is hereinafter collectively called the
"Collateral"), all until such time as all of the Obligations have been fully
paid and discharged.]
5. Except so far as otherwise expressly stated in the Credit, we agree
that the Credit shall be subject to the Uniform Customs and Practice for
Documentary Credits, ( 1993 revision), International Chamber of Commerce
Publication No. 500 (herein called the "Uniform Customs") and any amendments
thereto and also to the New York Uniform Commercial Code (including Article 5)
[herein called the "Commercial Code"]. In the event of any conflict between the
Uniform Customs and the Commercial Code, the Uniform Customs shall govern.
6. We assume all risks of the acts or omissions of the users of the Credit
and all risks of the misuse of the Credit. We agree that should the beneficiary
under the Credit, upon receipt of advice by cable, or otherwise, of the
issuance of the Credit, but prior to its actual receipt, negotiate drafts by
virtue of such advice, such negotiation shall be considered a proper one and
shall be included under the terms and subject to all conditions hereof. Neither
you nor any of your correspondents shall be responsible for: (a) delay in
arrival, or failure to arrive, of any property or any relative document; (b)
delay in giving, or failure to give, notice of arrival or any other notice; (c)
any breach of contract between the shipper(s) or vendor(s) and the consignee(s)
or buyer(s); (d) failure of any draft to bear adequate reference to the Credit,
or failure of any person to note the amount of any draft on the reverse side of
the Credit or to surrender or to take up the Credit or to send forward
documents apart from drafts as required by the terms of the Credit, each of
which provisions, if contained in the Credit itself, it is agreed may be waived
by you; (e) the fact that any instructions, oral or written, given to you
purporting to be by us or on our behalf and believed by you in good faith and
the exercise of ordinary care to be valid which pertain to the opening of the
Credit, any extension, increase or other modification of the Credit or other
action to be taken or omitted with reference thereto, were wholly or in part
insufficient, erroneous, unauthorized, fraudulent or otherwise invalid; or (f)
any other act or omission as to which banks are relieved from responsibility
under the terms of the Uniform Customs or the Commercial Code. The happening of
any one or more of the above-mentioned contingencies shall not affect, impair
or prevent the vesting of any of your rights or powers hereunder. In case of
any variation between document(s) presented and document(s) called for by the
Credit or instructions by us and any document(s) accepted by you or your
correspondents, we shall be deemed conclusively to have waived any right to
object to such variation with respect to any action of yours or your
correspondents relating to such document(s) and to have ratified and approved
such action as having been taken at our direction, unless we, immediately upon
receipt of such document or acquisition of knowledge of such variation, notify
you in writing of our objection. You shall not in any way be liable for any
failure by you or anyone else to pay or accept any draft or other demands for
payment or acceptance under the Credit resulting from any censorship, law,
control or restriction rightfully or wrongfully exercised by any de facto or de
jure domestic or foreign government or agency or from any other cause beyond
your control or the control of your correspondents, agents or sub-agents or for
any loss or damage to us or anyone else resulting from any such failure to pay
or accept, all such risks being expressly assumed by us.
[7. We agree to procure promptly any necessary import and export or other
licenses for the import or export or shipping of the property and to comply
with all foreign and domestic governmental regulations in regard to the
shipment of the property or the financing thereof, and to furnish such
certificates in that respect as you may at any time require. We also agree to
keep the property adequately covered by insurance satisfactory to you, in
companies satisfactory to you, and to assign the policies or certificates of
insurance to you, or to make the loss or adjustment, if any, payable to you, at
your option; and to furnish you if demanded with evidence of acceptance by the
insurers of such assignment.]
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<PAGE>
8. Each of us agrees that the balance of every account of us or any of us
with you and each claim of us or any of us against you existing from time to
time, shall be subject to a lien and subject to be set off against any and all
of the Obligations; and you may at any time or from time to time at your option
and without notice appropriate and apply toward the payment of any of such
Obligations the balance of each such account of us or any of us with you and
each such claim of us or any of us against you, and we and each of us will
continue liable for any deficiency.
9. If we shall fail to perform any agreement contained herein or in any
other instrument delivered to you by us or if we default in the punctual
payment of any sum payable in respect of any of the Obligations, or upon the
happening with respect to any of us of the following: (a) any proceedings being
commenced by or against us or any of us under or purporting to be under any
bankruptcy, reorganization, readjustment of debt, receivership, liquidation,
dissolution, winding up, adjustment, composition or liquidation law or statute
of any jurisdiction; (b) suspension or liquidation of our usual business; (c)
insolvency; (d) dissolution (if we or any of us be a partnership or
corporation); (e) application for, or appointment of, a conservator,
rehabilitator or receiver of any of our property in any jurisdiction; [(f)
death;] (g) any injunction, warrant of attachment or, judgment remaining
undissolved, undischarged or unstayed for more than 90 days (whether or not
consecutive); (h) assignment for benefit of creditors; (i) making or sending
notice of an intended bulk sale; (j) acceleration of the maturity of any
indebtedness for borrowed money; (k) failure after demand by you to furnish any
requested financial information or to permit the inspection of books or records
of account; (1) the making of any misrepresentation to you for the purpose of
obtaining credit or an extension of credit - then and in any such event or at
any time thereafter (unless all existing defaults in respect of the Obligations
and Collateral shall have been cured to your satisfaction) any or all of the
Obligations, although not yet due, shall, at your option, without notice or
demand, forthwith become and be immediately due and payable, notwithstanding
any time or credit otherwise allowed under any of said Obligations or under any
instrument evidencing the same, [and you shall have in any jurisdiction where
enforcement is sought, in addition to all other rights and remedies, the rights
and remedies of a secured party under the Commercial Code. The surplus, if any,
of the net proceeds of any disposition of Collateral remaining after
application thereof to payment in full of the Obligations shall be delivered to
any one or more of us; and any such delivery shall discharge all responsibility
of yours to us for such surplus. We shall remain liable to you for the payment
of any deficiency, together with interest thereon until paid.]
10. We hereby agree to indemnify you and your correspondents from and
against all liability, loss or expense (including legal and other expenses
incurred by you in enforcing your rights) incurred by you and/or any such
correspondent as a consequence of: (a) any failure on our part duly to perform
our agreements herein; (b) any matter or contingency referred to above in this
Agreement; and/or (c) any action taken or omitted by you or any such
correspondent at our request, except such, if any, liability, loss or expense
as may be incurred as a result of bad faith or wilful misconduct on the part of
you or any such correspondent. In furtherance and extension and not in
limitation of the specific provisions set forth in this Agreement, any action
taken or omitted by you or by any correspondent of yours, under or in
connection with the Credit or the relative drafts, documents or property, if
taken or omitted in good faith, shall be binding upon us and shall not put you
or your correspondent under any resulting liability to us. We hereby agree at
all times to protect, indemnify and save harmless you and your correspondents
from and against any and all claims, actions, suits and other legal
proceedings, and from and against any and all loss, claims, demands,
liabilities, damages, costs, charges, counsel fees and other expenses which you
or your correspondents may, at any time, sustain or incur by reason of or in
consequence of or arising out of the issuance of the Credit; it being the
intention of the parties that this Agreement shall be construed and applied to
protect and indemnify you and your correspondents against any and all risks
involved in the issuance of the Credit, all of which risks are hereby assumed
by us. Our agreements in this Section 10 shall survive any payment of the
Obligations and any termination of this Agreement.
11. In the event that a determination is made by you in your sole
discretion that the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein or any change in the
interpretation or administration thereof by any governmental authority central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by you with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on your capital as a consequence of your obligations to us or of
this Agreement and any Credit related thereto to a level below that which you
could have achieved but for such adoption, change, or
28
<PAGE>
compliance, we promise to pay on demand to you such additional amount or
amounts as will compensate you for such reduction. A certificate from you as to
the amount required to be paid by us under this paragraph shall accompany such
demand and shall be, except in the case of manifest error or in the absence of
good faith, final and conclusive.
12. As used herein, the term "property" includes all documents relative
to, and any right to or interest in, any property or documents; the term
"draft" includes a written request, order or demand for the payment of money,
whether or not negotiable; and the term "document" includes any writing other
than a draft. Credits payable against documents only shall be deemed payable
against drafts in corresponding amounts for the purposes of Sections 1 and 2 of
this Agreement.
13. If this Agreement is signed by one individual, the term "we", "our",
"us", shall be read throughout as "I", "my", "me", as the case may be. If this
Agreement is signed by two or more parties, it shall be the joint and several
agreement of such parties; and the words "we", "us", "our" and "undersigned",
wherever used herein, shall be deemed to refer to such parties jointly and
separately. This Agreement is to continue in force notwithstanding any change
in the composition of any firm or firms, parties to this Agreement or drawers
under any Credit. We represent and warrant that the execution, delivery and
performance by us of this Agreement have been duly authorized by all necessary
corporate and/or other action and that the making and performance hereof by us
do not and will not contravene the terms of any existing law, agreement or
instrument by which we are bound or to which we are subject.
14. All communications to us shall be deemed to have been duly given when
delivered in writing or by telex, telegram or cable to us at our address
specified below or at such other address as we may hereafter specify to you in
writing provided that such notice of such other address is actually received.
Except as otherwise expressly provided herein, no other form of actual notice
is hereby precluded. If we change our postal address or telex number we shall
forthwith give notice to such effect to you.
15. Notice of acceptance of this Agreement by you is waived. This
Agreement and the rights and obligations of you and of the undersigned
hereunder shall be governed by and construed in accordance with the law of the
State of New York. Your options, powers and rights specified herein are in
addition to those otherwise created or existing.
16. Any legal action or proceeding with respect to this Agreement against
the undersigned may be brought in the courts of the State of New York in the
City of New York, or in the United States District Court for the Southern
District of New York, as you may elect; and by execution and delivery of this
Agreement, the undersigned hereby accepts, for the undersigned and in respect
of the undersigned's property, generally and unconditionally the non-exclusive
jurisdiction of such courts and hereby waives any objection that the
undersigned may now or hereafter have to the laying of venue of any such action
or proceeding in such court and any claim that any such action or proceeding
has been brought in an inconvenient forum. The undersigned further irrevocably
consents to the service of process in any such action or proceeding by the
mailing of a copy thereof by registered or certified airmail, postage pre-paid,
to the undersigned at its address given below; such service to be deemed
completed and effective as from 30 days after such mailing. Nothing contained
herein shall affect the right to serve process in any manner permitted by law
or to commence any legal action or proceeding in any other jurisdiction.
17. All provisions of this Agreement are subject to variation by express
written agreement, either generally or in individual Credits.
18. This Agreement constitutes a continuing agreement, applying to any and
all future, as well as to existing, Credits.
Date: September 29, 1994 Bertelsmann, Inc.
--------------------------
Applicant
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Telex No.: 212 782 1010 By
------------------------------
Name and Title: Bernard D____
VP Finance Controller
Telephone No.: 212 782 1110 Address: 1540 Broadway [1133 Avenue of the Americas]
New York, New York 10036
30
<PAGE>
Deutsche Bank
Aktiengesellschaft
Bertelsmann, Inc. May 20, 1996
1540 Broadway Dept.: LEX/FGY
New York, NY 10036-4094 Ref.: CFI-1/16981
Tel.: (212) 474-8180
Attn: Mr. Bernie Derlath
Vice President & Treasurer
Re: Tenth Amendment (this "Amendment") to the Letter Agreement dated
February 26, 1987, as amended (the "Agreement")
--------------------------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the above-captioned Agreement. Unless otherwise defined
herein, terms defined therein are used with the same meaning herein.
The Bank is pleased to inform the Borrower that the Agreement, subject to
satisfaction of the conditions precedent set forth below, is amended as
follows:
The Final Maturity Date is hereby extended from July 1, 2000 to July 1, 2001.
Accordingly, all references in the Letter Agreement to the Final Maturity Date
shall be deemed references to July 1, 2001.
It is a condition precedent to the effectiveness of this Amendment that (i) the
Bank shall have received a duly signed copy of this Amendment and the extension
in writing of the "Garantie" of Bertelsmann AG to July 1, 2001 and (ii) the
Bank shall be in possession of copies of all documents evidencing all necessary
corporate action and governmental approvals, if any, with respect to the
Agreement, any amendments thereto and any documents thereunder.
This Amendment shall be governed by and construed in accordance with the law of
the State of New York.
This Amendment is limited precisely as written and shall not be deemed to be a
consent or waiver of any other term or condition of the Agreement. Except as
expressly modified hereby, all of the terms and provisions of the Agreement
shall continue in full force and effect.
If you agree with the foregoing, please sign and return to the Bank the
enclosed copy of this Amendment and the documentation referred to above.
Very truly yours,
Deutsche Bank AG
New York Branch/
Cayman Islands Branch
/s/ Andreas Witt /s/ B. Hoeltz
---------------------------- -------------
Andreas Witt Barbara Hoeltz
Assistant Vice President Vice President
31
<PAGE>
AGREED TO AND ACCEPTED BY:
Bertelsmann, Inc.
By: ___________________________ By: ___________________________
Title:_________________________ Title:_________________________
32
<PAGE>
Deutsche Bank
Aktiengesellschaft
Bertelsmann, Inc. May 23, 1997
1540 Broadway Dept.: LEX/FGY
New York, NY 10036-4094 Ref.: CFI-1/29036
Tel.: (212) 469-8180
Attn: Mr. Bernie Derlath
Vice President & Treasurer
Re: Eleventh Amendment (this "Amendment") to the Letter Agreement dated
February 26, 1987, as amended (the "Agreement")
--------------------------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the above-captioned Agreement. Unless otherwise defined
herein, terms defined therein are used with the same meaning herein.
The Bank is pleased to inform the Borrower that the Agreement, subject to
satisfaction of the conditions precedent set forth below, is amended as
follows:
The Final Maturity Date is hereby extended from July 1, 2001 to July 1, 2002.
Accordingly, all references in the Letter Agreement to the Final Maturity Date
shall be deemed references to July 1, 2002.
It is a condition precedent to the effectiveness of this Amendment that (i) the
Bank shall have received a duly signed copy of this Amendment and the extension
in writing of the "Garantie" of Bertelsmann AG to July 1, 2002 and (ii) the
Bank shall be in possession of copies of all documents evidencing all necessary
corporate action and governmental approvals, if any, with respect to the
Agreement, any amendments thereto and any documents thereunder.
This Amendment shall be governed by and construed in accordance with the law of
the State of New York.
This Amendment is limited precisely as written and shall not be deemed to be a
consent or waiver of any other term or condition of the Agreement. Except as
expressly modified hereby, all of the terms and provisions of the Agreement
shall continue in full force and effect.
If you agree with the foregoing, please sign and return to the Bank the
enclosed copy of this Amendment and the documentation referred to above.
Very truly yours,
Deutsche Bank AG
New York Branch/
Cayman Islands Branch
/s/ Sherine Fanous /s/ B. Hoeltz
------------------ -------------
Sherine Fanous Barbara Hoeltz
Vice President Vice President
33
<PAGE>
AGREED TO AND ACCEPTED BY:
Bertelsmann, Inc.
By: ___________________________ By: ___________________________
Title:_________________________ Title:_________________________
34
<PAGE>
June 26, 1998 Deutsche Bank
Bertelsmann, Inc. Deutsche Bank AG New York
1540 Broadway 31 West 52nd Street
New York, NY 10036-4094 New York, New York 10019
Tel 212 469 8000
Attn: Mr. Bernie Derlath
Vice President & Treasurer
Re: Twelfth Amendment (this "Amendment") to the Letter Agreement dated
February 26, 1987, as amended (the "Agreement")
-------------------------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the above-captioned Agreement. Unless otherwise defined
herein, terms defined therein are used with the same meaning herein.
The Bank is pleased to inform the Borrower that the Agreement, subject to
satisfaction of the conditions precedent set forth below, is amended as
follows:
The Final Maturity Date is hereby extended from July 1, 2002 to July 1, 2003.
Accordingly, all references in the Letter Agreement to the Final Maturity Date
shall be deemed references to July 1, 2003.
It is a condition precedent to the effectiveness of this Amendment that (i) the
Bank shall have received a duly signed copy of this Amendment and the extension
in writing of the "Garantie" of Bertelsmann AG to July 1, 2003 and (ii) the
Bank shall be in possession of copies of all documents evidencing all necessary
corporate action and governmental approvals, if any, with respect to the
Agreement, any amendments thereto and any documents thereunder.
This Amendment shall be governed by and construed in accordance with the law of
the State of New York.
This Amendment is limited precisely as written and shall not be deemed to be a
consent or waiver of any other term or condition of the Agreement. Except as
expressly modified hereby, all of the terms and provisions of the Agreement
shall continue in full force and effect.
If you agree with the foregoing, please sign and return to the Bank the
enclosed copy of this Amendment and the documentation referred to above.
Very truly yours,
Deutsche Bank AG
New York Branch/
Cayman Islands Branch
/s/ O. Schwartz /s/ B. Hoeltz
------------------------------- -------------
Oliver Schwarz Barbara Hoeltz
Assistant Vice President Vice President
35
<PAGE>
AGREED TO AND ACCEPTED BY:
Bertelsmann, Inc.
By: ___________________________ By: ___________________________
Title:_________________________ Title:_________________________
36
<PAGE>
April 14, 1999 Deutsche Bank
Bertelsmann, Inc. Deutsche Bank AG New York
1540 Broadway 31 West 52nd Street
New York, NY 10036-4094 New York, New York 10019
Tel 212 469 8000
Attn: Mr. Bernie Derlath,
Vice President & Treasurer
Re: Thirteenth Amendment (this "Amendment") to the Letter Agreement dated
February 26, 1987, as amended (the "Agreement")
--------------------------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the above-captioned Agreement. Unless otherwise defined
herein, terms defined therein are used with the same meaning herein.
The Bank is pleased to inform the Borrower that the Agreement, subject to
satisfaction of the conditions precedent set forth below, is amended as
follows:
(1) We make this Facility available to you as part of the Langfristige
Barkreditlinie (the "Long Term Credit Line") in accordance with the
letter agreement of March 11, 1999 between Bertelsmann AG and Deutsche
Bank AG (the "German Loan Agreement"). The aggregate principal amount
available under this Facility (the "US Sub-Limit") currently shall not
exceed US$50,000,000. The US Sub-Limit may be reduced or increased as
provided in the German Loan Agreement, and shall reduce the aggregate
principal amount available to Bertelsmann AG under the Long Term Credit
Line in Germany accordingly.
(2) The Final Maturity Date is hereby extended from July 1, 2003 to
September 30, 2004. On September 30 of each year, the Final Maturity
Date shall be extended for one additional year, unless the Bank has
terminated such extension until June 30 of such year. Accordingly, all
references in the Letter Agreement to the Final Maturity Date shall be
deemed references to September 30, 2004, and, upon extension as provided
in the foregoing sentence, to the Final Maturity Date as extended.
It is a condition precedent to the effectiveness of this Amendment that the
Bank shall have received (i) a duly signed copy of this Amendment and (ii) the
executed "Garantie" of Bertelsmann AG in the form provided in the German Loan
Agreement. Further, the Bank shall be in possession of copies of all documents
evidencing all necessary corporate action and governmental approvals, if any,
with respect to the Agreement, any amendments thereto and any documents
thereunder.
This Amendment shall be governed by and construed in accordance with the law of
the State of New York.
This Amendment is limited precisely as written and shall not be deemed to be a
consent or waiver of any other term or condition of the Agreement. Except as
expressly modified hereby, all of the terms and provision of the Agreement
shall continue in full force and effect.
37
<PAGE>
If you agree with the foregoing, please sign and return to the Bank the
enclosed copy of this Amendment and the documentation referred to above.
Very truly yours,
Deutsche Bank AG
New York Branch/
Cayman Islands Branch
/s/ O. Schwartz /s/ B. Hoeltz
----------------------------- -------------
Oliver Schwarz Barbara Hoeltz
Assistant Vice President Vice President
AGREED TO AND ACCEPTED BY:
Bertelsmann, Inc.
By: ___________________________ By: ___________________________
Title:_________________________ Title:_________________________
38
