-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MgDDqDHZsVbG4MHT/YY6Bbx+ONZOpwz7bwU2WMjNFM2qS+H9ODD94sMtGYvj+QiM n8WJekAbwpKPnTKsjmxpSg== 0000927356-97-000851.txt : 19970805 0000927356-97-000851.hdr.sgml : 19970805 ACCESSION NUMBER: 0000927356-97-000851 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19970804 SROS: NASD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TELE COMMUNICATIONS INC /CO/ CENTRAL INDEX KEY: 0000925692 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 841260157 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-44063 FILM NUMBER: 97650853 BUSINESS ADDRESS: STREET 1: 5619 DTC PARKWAY CITY: ENGLEWOOD STATE: CO ZIP: 80111-3000 BUSINESS PHONE: 3032675500 MAIL ADDRESS: STREET 1: 5619 DTC PARKWAY CITY: ENGLEWOOD STATE: CO ZIP: 80111-3000 FORMER COMPANY: FORMER CONFORMED NAME: TCI LIBERTY HOLDING CO DATE OF NAME CHANGE: 19940620 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MALONE JOHN C CENTRAL INDEX KEY: 0000937797 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] STATE OF INCORPORATION: CO FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 5619 DTC PARKWAY STREET 2: C/O TELE COMMUNICATIONS INC CITY: ENGLEWOOD STATE: CO ZIP: 80111 BUSINESS PHONE: 3032675500 MAIL ADDRESS: STREET 1: C/O TELE COMMUNICATIONS INC STREET 2: 5619 DTC PARKWAY CITY: ENGLEWOOD STATE: CO ZIP: 80111 SC 13D 1 FORM SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Schedule 13D Under the Securities Exchange Act of 1934 (Amendment No. 3)* TELE-COMMUNICATIONS, INC. (Name of Issuer) (1) Tele-Communications, Inc. Series A TCI Group Common Stock, par value $1.00 per share. (2) Tele-Communications, Inc. Series A Liberty Media Group Common Stock, par value $1.00 per share. (3) Tele-Communications, Inc. Series B TCI Group Common Stock, par value $1.00 per share. (4) Tele-Communications, Inc. Series B Liberty Media Group Common Stock, par value $1.00 per share. (5) Class B 6% Cumulative Redeemable Exchangeable Junior Preferred Stock, par value $.01 per share. - -------------------------------------------------------------------------------- (Title of Classes of Securities) (1) Series A TCI Group Common Stock: 87924V101 (2) Series A Liberty Group Common Stock: 87924V507 (3) Series B TCI Group Common Stock: 87924V200 (4) Series B Liberty Group Common Stock: 87924V606 (5) Class B Preferred Stock: 87924V309 - -------------------------------------------------------------------------------- (CUSIP Numbers) Dr. John C. Malone c/o Tele-Communications, Inc. Terrace Tower II, 5619 DTC Parkway, Englewood, CO 80111, (303-267-5500) (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) July 23, 1997 ------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b) (3) or (4), check the following box: [ ].** Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). - --------------- ** See discussion in Item 1 relating to prior Schedule 13G filing. Exhibit Index is on Page 10 Cusip No. - Series A TCI Group Common Stock 87924V101 Cusip No. - Series A Liberty Group Common Stock 87924V507 Cusip No. - Series B TCI Group Common Stock 87924V200 Cusip No. - Series B Liberty Group Common Stock 87924V606 Cusip No. - Class B Preferred Stock 87924V309 - ------------------------------------------------------------------------------ (1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above Persons Dr. John C. Malone - ------------------------------------------------------------------------------ (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [ ] - ------------------------------------------------------------------------------ (3) SEC Use Only - ------------------------------------------------------------------------------ (4) Source of Funds OO - ------------------------------------------------------------------------------ (5) Check if Disclosure of Legal Proceedings is [ ] Required Pursuant to Items 2(d) or 2(e) - ------------------------------------------------------------------------------ (6) Citizenship or Place of Organization U.S. - ------------------------------------------------------------------------------ Number of Shares Beneficially Owned by Each Reporting Person With (7) Sole Voting Power 2,161,728 Shares of Series A TCI Group/1/ 63,129,271 Shares of Series B TCI Group/2,4/ 1,504,658 Shares of Series A Liberty Group/3/ 8,627,395 Shares of Series B Liberty Group/2,5/ 289,800 Shares of Class B Preferred/2/ -------------------------------------------------------------------------- (8) Shared Voting Power 0 Shares -------------------------------------------------------------------------- (9) Sole Dispositive 2,161,728 Shares of Series A TCI Group/1/ Power 63,129,271 Shares of Series B TCI Group/2,4/ 1,504,658 Shares of Series A Liberty Group/3/ 8,627,395 Shares of Series B Liberty Group/2,5/ 289,800 Shares of Class B Preferred/2/ -------------------------------------------------------------------------- (10) Shared Dispositive 0 Shares Power - ------------------------------------------------------------------------------ (11) Aggregate Amount Beneficially Owned by Each Reporting Person 2,161,278 Shares of Series A TCI Group/1/ 63,129,271 Shares of Series B TCI Group/2,4/ 1,504,658 Shares of Series A Liberty Group/3/ 8,627,395 Shares of Series B Liberty Group /2,5/ 289,800 Shares of Class B Preferred/2/ - ------------------------------------------------------------------------------ (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [_] - ------------------------------------------------------------------------------ (13) Percent of Class Represented by Amount in Row (11)/6/ Series A TCI Group less than 1% Series B TCI Group 76.1% Series A Liberty Group less than 1% Series B Liberty Group 40.7% Class B Preferred 17.8% - ------------------------------------------------------------------------------ 2 (14) Type of Reporting Person IN - ----------------------------- /1/ Including the 161,728 shares of Series A TCI Group Stock beneficially owned by Dr. Malone, together with the additional 2,000,000 shares Dr. Malone would acquire upon the exercise of stock options granted in tandem with stock appreciation rights of which options for 1,000,000 shares are currently exerciseable, but does not include shares of Series A TCI Group Stock issuable upon conversion of shares of Series B TCI Group Stock owned by Dr. Malone or his spouse. (See Items 3 and 5 of the Statement) /2/ Includes, as applicable, 1,173,000 shares of Series B TCI Group Stock, 293,250 shares of Series B Liberty Group Stock, and 6,900 shares of Class B Preferred Stock beneficially owned by Dr. Malone's spouse, to which Dr. Malone disclaims any beneficial ownership thereof. (See Item 5 of the Statement) /3/ Including the 754,658 shares of Series A Liberty Group Stock beneficially owned by Dr. Malone, together with the additional 750,000 shares Dr. Malone would acquire upon the exercise of stock options granted in tandem with stock appreciation rights of which options for 375,000 shares are currently exerciseable. These shares do not include shares of Series A Liberty Group Stock issuable upon conversion of shares of Series B Liberty Group Stock owned by Dr. Malone or his spouse. (See Items 3 and 5 of the Statement) /4/ Includes 30,545,864 shares of Series B TCI Group Stock that Dr. Malone has the right to acquire at any time prior to June 30, 1999, and 11,500,000 shares and 2,795,000 shares, respectively, of Series B TCI Group Stock pledged as security for two loans. (See Item 6) /5/ Includes 3,084,358 shares and 500,000 shares, respectively, of Series B Liberty Group Stock pledged as security for two loans. (See Item 6) /6/ Each share of Series B TCI Group Stock and Series B Liberty Group Stock is entitled to 10 votes per share and each share of Series A TCI Group Stock and Series A Liberty Group Stock is entitled to one vote per share. In addition, holders of Class B Preferred Stock vote with the holders of the Series A TCI Group Stock, Series B TCI Group Stock, Series A Liberty Group Stock, Series B Liberty Group Stock, and certain classes/series of Issuer preferred stock on the election of directors. Accordingly, when these series and class of stock are aggregated, the Reporting Person may be deemed to beneficially own voting equity securities of the Issuer representing approximately 37.4% of the voting power of the Issuer. 3 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Amendment No. 3) Statement of DR. JOHN C. MALONE Pursuant to Section 13(d) of the Securities Exchange Act of 1934 in respect of TELE-COMMUNICATIONS, INC. (Commission File No. 0-20421) ITEM 1. Security and the Issuer ----------------------- Dr. John C. Malone hereby amends and supplements his Statement on Schedule 13D, as amended to the date hereof (the "Statement"), with respect to the following shares of stock of Tele-Communications, Inc., a Delaware corporation (the "Issuer"), beneficially owned by Dr. John C. Malone: (1) Tele-Communications, Inc. Series A TCI Group Common Stock, par value $1.00 per share (the "Series A TCI Group Stock"); (2) Tele-Communications, Inc. Series A Liberty Media Group Common Stock, par value $1.00 per share (the "Series A Liberty Group Stock"); (3) Tele-Communications, Inc. Series B TCI Group Common Stock, par value $1.00 per share (the "Series B TCI Group Stock"); (4) Tele-Communications, Inc. Series B Liberty Media Group Common Stock, par value $1.00 per share (the "Series B Liberty Group Stock"); and (5) Class B 6% Cumulative Redeemable Exchangeable Junior Preferred Stock, par value $.01 per share (the "Class B Preferred Stock"). The Issuer's executive offices are located at 5619 DTC Parkway, Englewood, Colorado 80111. Unless otherwise indicated, capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Statement. Dr. Malone is filing this Amendment No. 3 to the Statement to report (a) his acquisition of additional shares of Series A TCI Group Stock, (b) his exchange of shares of Series A TCI Group Stock for shares of Series B TCI Group Stock and his exchange of shares of Series A Liberty Group Stock for shares of Series B Liberty Group Stock, (c) his pledge of shares of Series B TCI Group Stock and Series B Liberty Group Stock as security for loans, (d) the release of his pledge of 193,400 shares of Class B Preferred Stock as security for a loan, and (e) his sale of 16,200 shares of Class B Preferred Stock and his spouse's sale of 146,625 shares of Series A Liberty Group Stock. 4 ITEM 3. Source and Amount of Funds or Other Consideration ------------------------------------------------- Item 3 of the Statement is hereby amended and supplemented by adding the following: Acquisition of Series A TCI Group Stock - --------------------------------------- On July 23, 1997, Dr. Malone purchased 7,284,496 shares of Series A TCI Group Stock owned by Knight-Ridder Cablevision, Inc. for an aggregate purchase price of $110,068,734.56 or $15.11 per share. Prior to this acquisition, the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, had expired with respect to Dr. Malone's acquisition of such shares. The filing pursuant to said Act authorizes Dr. Malone to acquire up to an aggregate of 49.9999% of the voting power of the Issuer. Dr. Malone acquired such shares with funds he borrowed pursuant to a revolving credit facility with NationsBank of Texas, N.A., as agent for the lenders thereof. Dr. Malone established the revolving credit facility for the acquisition of Common Stock of the Issuer and other business investments. The revolving credit facility is secured by 11,500,000 shares of Series B TCI Group Stock and 3,084,358 shares of Series B Liberty Group Stock owned by Dr. Malone. See Items 5 and 6 below. Copies of the Pledge Agreement, dated as of July 23, 1997 (the "Pledge Agreement"), between Dr. John C. Malone and NationsBank of Texas, N.A., as agent, and the Revolving Credit Agreement, dated as of July 23, 1997, among Dr. John C. Malone, NationsBank of Texas, N.A., as agent, and the Lenders named therein, are attached hereto as Exhibits D and E, respectively, and incorporated herein by this reference. Exchange of Shares - ------------------ Immediately following the above described acquisition and pursuant to the terms of a Letter Agreement, dated July 23, 1997 (the "Letter Agreement"), between Dr. Malone and the Issuer, Dr. Malone transferred to the Issuer (a) 7,296,324 shares of Series A TCI Group Stock owned by him in exchange for an equal number of shares of Series B TCI Group Stock, and (b) 2,278,125 shares of Series A Liberty Group Stock owned by him in exchange for an equal number of shares of Series B Liberty Group Stock. The Issuer made such exchanges in consideration of Dr. Malone agreeing to forgo his rights to acquire certain shares of Issuer Common Stock owned by Kearns-Tribune Corporation in connection with its Merger (as defined below). The terms of the Letter Agreement provided that Dr. Malone could acquire up to an additional 1,816,176 shares of Series B TCI Group Stock (for an aggregate of 9,112,500 shares of Series B TCI Group Stock) by exchanging an equal number of shares of Series A TCI Group Stock at any time and from time to time until July 30, 1998. Upon the close of the Merger, however, Dr. Malone and the Issuer agreed to terminate Dr. Malone's right to acquire such 1,816,176 shares of Series B TCI Group Stock. The foregoing description of the exchanges and the waiver of rights is qualified in its entirety by reference to the Letter Agreement attached to this Amendment No. 3 to the Statement as Exhibit F and incorporated herein by this reference. Waiver of Acquisition Rights - ---------------------------- On July 31, 1997, pursuant to the terms and conditions of an Agreement and Plan of Merger, dated as of April 18, 1997, the Issuer acquired all of the capital stock of Kearns-Tribune in connection with the merger of Kearns-Tribune with a subsidiary of the Issuer (the "Merger"). Pursuant to an agreement entered into in 1988, by the late Mr. Bob Magness and Kearns-Tribune with Dr. Malone, Dr. Malone had been granted certain rights with respect the Series B TCI Group Stock and the Series B Liberty Group Stock owned by Mr. Magness and Kearns-Tribune. In connection with the Merger, Dr. Malone asserted those rights and, in connection therewith, Kearns-Tribune agreed that Dr. Malone could exercise those rights immediately prior to the Merger. See Item 6 below. As stated above, however, Dr. Malone agreed to forgo exercising those rights in connection with the Letter Agreement. 5 ITEM 4. Purpose of Transaction ---------------------- Item 4 of the Statement is hereby amended and supplemented by adding the following: Dr. Malone acquired the 7,284,496 shares of Series A TCI Group Stock and exercised his exchange rights with TCI for additional shares of Series B TCI Group Stock and Series B Liberty Group Stock, all as described in Item 3 above, to increase his voting power with respect to the Issuer. Subject to a number of contingencies, on or about August 8, 1997, the Issuer intends to offer to exchange its shares of Series A TCI Ventures Group Common Stock for shares of Series A TCI Group Stock and its shares of Series B TCI Ventures Group Common Stock for shares of Series B TCI Group Stock. Assuming said exchange offer is made, at this time Dr. Malone intends to tender approximately 30% of his Series A TCI Group Stock and approximately 30% of his Series B TCI Group Stock in the exchange offer. ITEM 5. Interest in Securities of the Issuer ------------------------------------ Item 5(a) of the Statement is hereby amended and supplemented by adding the following information thereto: Dr. Malone beneficially owns (without giving effect to the conversion of Series B TCI Group Stock for Series A TCI Group Stock or of Series B Liberty Group Stock for Series A Liberty Group Stock): (a) 2,161,728 shares of Series A TCI Group Stock, which includes interests in shares held by the trustee of the Issuer's Employee Stock Purchase Plan, and options for 2,000,000 shares of which options for 1,000,000 shares are currently exerciseable and represents less than 1% of the outstanding shares of Series A TCI Group Stock; (b) 63,129,271 shares of Series B TCI Group Stock, which includes Dr. Malone's right to acquire from the Issuer 30,545,864 shares and represents 76.1% of the outstanding shares of Series B TCI Group Stock; (c) 1,504,658 shares of Series A Liberty Group Stock, which includes interests in shares held by the trustee of the Issuer's Employee Stock Purchase Plan, and options for 750,000 shares of which options for 375,000 shares are currently exerciseable and represents less than 1% of the outstanding shares of Series A Liberty Group Stock; and (d) 8,627,395 shares of Series B Liberty Group Stock, which represents 40.7% of the outstanding shares of Series B Liberty Group Stock. In addition, Dr. Malone owns 289,800 shares of Class B Preferred Stock, which represents 17.8% of the outstanding shares of Class B Preferred Stock. The foregoing percentage interests are based on the outstanding share numbers provided by the Issuer as of June 30, 1997 (adjusted for the transactions disclosed in Item 3 above, the Merger, and Dr. Malone's options as if exercised in full), as follows: 661,968,414 shares of Series A TCI Group Stock; 82,945,002 shares of Series B TCI Group Stock (assumes Dr. Malone exercised his right to acquire 30,545,864 shares thereof); 222,110,161 shares of Series A Liberty Group Stock; 21,175,465 shares of Series B Liberty Group Stock; and 1,620,026 shares of Class B Preferred Stock. When these series and class of stock are aggregated, Dr. Malone may be deemed to beneficially own voting equity securities of the Issuer representing approximately 37.4% of the voting power of the Issuer. Item 5(b) of the Statement is hereby amended and supplemented by adding the following information thereto: Dr. Malone and to his knowledge, his spouse each have the sole power to vote, or to direct the voting of, their respective shares of each Series of the Issuer's Common Stock and the Class B Preferred Stock and the sole power to dispose of, or to direct the disposition of, all such shares, except with respect to (a) the pledge of 14,295,000 shares of Series B TCI Group Stock and 3,584,358 shares of Series B Liberty Group Stock, as described in Item 6 below, and (b) 161,728 shares of Series A TCI Group Stock and 6 60,873 shares of Series A Liberty Group Stock held by the trustee of the Issuer's Employee Stock Purchase Plan, which shares are voted at the discretion of such trustee. Item 5(c) is hereby amended and supplemented by adding the following information thereto: On June 25, 1997, Dr. Malone sold in the open market 16,200 shares of Class B Preferred Stock for $73.00 per share. On July 24, 1997, Dr. Malone's spouse sold 146,625 shares of Series A Liberty Group Stock (to which Dr. Malone disclaims any beneficial ownership thereof) for $25.81 per share to the Issuer in a private transaction. Item 5(d) is hereby amended and supplemented by adding the following information thereto: Except with respect to the pledge of 14,295,000 shares of Series B TCI Group Stock and 3,584,358 shares of Series B Liberty Group Stock, as described in Item 6 below, there is no person that has the right to receive, or the power to direct the receipt of, dividends from, or the proceeds from the sale of, any Series of the Issuer's Common Stock or the Class B Preferred Stock beneficially owned by Dr. Malone or, to his knowledge, by his spouse. ITEM 6. Contracts, Arrangements, Understandings or Relationships With Respect --------------------------------------------------------------------- to Securities of the Issuer --------------------------- Item 6 of the Statement is hereby amended and supplemented by adding the following information thereto: In connection with the revolving credit facility Dr. Malone used to acquire 7,284,496 shares of Series A TCI Group Stock, as described in Item 3 above, Dr. Malone pledged as security for such revolving credit facility 11,500,000 shares of Series B TCI Group Stock and 3,084,358 shares of Series B Liberty Group Stock owned by him, together with all proceeds thereon (including dividends), which become additional collateral for the revolving credit facility. Prior to an event of default under the revolving credit facility, however, Dr. Malone may retain any dividends paid on such shares. Such pledge of securities is more fully described in the Pledge Agreement. During the term of the revolving credit facility, Dr. Malone may not sell or otherwise dispose of said shares. Dr. Malone, however, maintains the right to vote such shares. In the event of a default on the revolving credit facility, NationsBank of Texas, N.A., as agent, will have the right to become the owner of said shares of Issuer Common Stock and to exercise all rights with respect thereto, including the right to vote such shares. The description of the pledge of the 11,500,000 shares of Series B TCI Group Stock and the 3,084,358 shares of Series B Liberty Group Stock contained herein is qualified in its entirety by reference to the text of the Pledge Agreement, which is incorporated herein by this reference. Effective on June 24, 1997 (executed July 24, 1997), TCI Technology Ventures, Inc. released Dr. Malone's pledge of 193,000 shares of Class B Preferred Stock as security for a loan. Pursuant to the terms of a Pledge Agreement for Lending on Shelf- Registered, Control or Restricted Securities, dated as of January 5, 1996, between Dr. Malone and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Dr. Malone has pledged 2,795,000 shares of Series B TCI Group Stock and 500,000 shares of Series B Liberty Group Stock as security for a loan. Each such pledge of securities is subject to adjustment based on the market value of such securities. Dr. Malone, however, maintains all other rights to such shares, including the right to vote such shares and the receipt of dividends thereon. In the event of a default on the loan, the holder thereof will have the right to become 7 the owner of such shares and to exercise all rights with respect thereto, including the right to vote such shares and to receive dividends thereon. ITEM 7. Material to be Filed as Exhibits -------------------------------- D. Pledge Agreement, dated as July 23, 1997, between Dr. John C. Malone and NationsBank of Texas, N.A., as agent. E. Revolving Credit Agreement, dated as of July 23, 1997, among Dr. John C. Malone, NationsBank of Texas, N.A., as agent, and the Lenders named therein. F. Letter Agreement, dated July 23, 1997, between the Issuer and Dr. John C. Malone. G. Letter Agreement, dated April 18, 1997, between Kearns-Tribune and Dr. John C. Malone. 8 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Amendment No. 3 to the Statement is true, complete and correct. August 1, 1997 /s/ Dr. John C. Malone ------------------------------ Dr. John C. Malone 9 EXHIBIT INDEX -------------
EXHIBIT EXHIBIT PAGE - ------- ------- ---- NUMBER - ------ 7(D) Pledge Agreement, dated as of July 23, 1997, between Dr. John C. Malone and NationsBank of Texas, N.A., as agent. 7(E) Revolving Credit Agreement, dated as of July 23, 1997, among Dr. John C. Malone, NationsBank of Texas, N.A., as agent, and the Lenders named therein. 7(F) Letter Agreement, dated July 23, 1997, between the Issuer and Dr. John C. Malone. 7(G) Letter Agreement, dated April 18, 1997, between Kearns-Tribune and Dr. John C. Malone.
10 EX-7.(D) 2 PLEDGE AGREEMENT, DATED JULY 23, 1997 Exhibit 7(D) NationsBank of Texas, N.A. Conformed Pledge Agreement* July 23, 1997
================================================================================ AGENT/SECURED PARTY: PLEDGOR(S)/DEBTOR(S): NationsBank of Texas, N.A., Agent John C. Malone 901 Main Street c/o Tele-Communications, Inc. 19th Floor Terrace Tower II Dallas, TX 75202 5619 DTC Parkway Dallas County Englewood, CO 80111 __________ County (Street address including county) (Name and street address including county) ================================================================================ Pledgor/Debtor is: [X] Individual [_] Corporation [_] Partnership [_] Other Address is Pledgor's/Debtor's: [_] Residence [X] Place of Business [_] Chief Executive Office if more than one place of business ================================================================================
Capitalized terms not otherwise defined in this Pledge Agreement (this "Agreement") have the same meaning as assigned to such terms in the Loan Agreement (hereinafter defined). 1. Security Interest. For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Pledgor/Debtor (hereinafter referred to as "Pledgor") pledges, assigns and grants to Agent/Secured Party (hereinafter referred to as "Secured Party"), for the benefit of the Lenders, a security interest and lien in the Collateral (hereinafter defined) to secure the payment and the performance of the Obligation (hereinafter defined). 2. Collateral. The security interest is granted in the following collateral (the "Collateral"): A. Description of Collateral. The investment property and/or securities evidenced or represented by the certificated securities described on Schedule I attached hereto and incorporated herein for all purposes, together with all investment property and/ or securities hereafter delivered to Secured Party in substitution therefor or in addition thereto (such investment property and/or securities described on Schedule I or hereafter delivered to Secured Party, collectively referred to herein as the "Pledged Shares"), together with all cash, securities, dividends, increases, distributions and profits received from or on the Pledged Shares, including distributions or payments in partial or complete liquidation or redemption, or as a result of reclassifications, readjustments, reorganizations or changes in the capital structure of the issuers of the Pledged Shares (hereinafter referred to herein -- whether one or more -- as the "Issuers") and any other property at any time and from time to time received, receivable or otherwise distributed or delivered to Secured Party, and all rights and privileges pertaining thereto. - ----------------------------------- * Conformed to show signatures. -1- It is contemplated by the parties that Pledgor may provide additional Collateral from time to time hereunder as additional security for the Obligation, and may from time to time, with the prior written consent of Secured Party, sell or otherwise dispose of any Collateral provided that Pledgor provides Secured Party with substitute Collateral satisfactory to Secured Party in its sole discretion, and Pledgor complies at all times with the provisions of Section 6 hereof. At the time of each addition or substitution of Collateral, the investment property and/or securities added or substituted shall be identified on a Pledge Certificate, substantially in the form of Schedule III attached hereto (the "Pledge Certificate"), and delivered to Secured Party. Pledgor understands and agrees that Secured Party is under no obligation to attribute Collateral Value (as hereinafter defined) to any such additional or substituted Collateral unless (i) such additional and/or substituted Collateral is satisfactory to Secured Party in its sole discretion, and (ii) the security interest granted to Secured Party therein is perfected to the satisfaction of Secured Party. All such additional and/or substituted Collateral shall be considered "Pledged Shares" and "Collateral" for purposes of this Agreement, and shall secure the Obligation in the same manner as the Collateral for which it is added to and/or substituted. In addition, the issuers of additional investment property and/or securities, constituting Collateral for the purposes of this Agreement, shall be considered "Issuers," for all purposes of this Agreement. B. Proceeds. All additions, substitutes and replacements for and proceeds of the above Collateral (including all income and benefits resulting from any of the above, such as dividends payable or distributable in cash, property or stock; interest, premium and principal payments; redemption proceeds and subscription rights; and shares or other proceeds of conversions or splits of any securities in the Collateral). All subscriptions, warrants, options and any other rights issued now or hereafter by any of the Issuers or any other person whatsoever upon or in connection with the above Collateral and all accounts and general intangibles arising from or related to the Collateral. Any investment property and/or securities received by Pledgor, which shall comprise such additions, substitutes and replacements for, or proceeds of, the Collateral, shall be held in trust for Secured Party and shall be delivered immediately to Secured Party. Any cash proceeds shall be held in trust for Secured Party and upon request shall be delivered immediately to Secured Party; provided however, prior to the occurrence of an Event of Default (as hereinafter defined) Pledgor may retain any cash dividends paid on the Collateral. 3. Obligation. A. Description of Obligation. The following obligations ("Obligation") are secured by this Agreement: i. All Debt: All debts, obligations, liabilities and agreements now or hereafter existing, arising directly or indirectly between Pledgor, Secured Party, Co-Agent and any of the Lenders under that certain Revolving Credit Agreement (as renewed, extended, amended, or restated, the "Loan Agreement") dated as of the date hereof, between Pledgor, Secured Party as "Agent" for the "Lenders," Toronto Dominion Securities (USA), Inc. as "Co- Agent," and certain other Lenders, whether absolute or contingent, joint or several, secured or unsecured, due or not due, liquidated or unliquidated, arising by operation of law or otherwise, and all renewals, extensions and rearrangements of any of the above. ii. NationsBank Promissory Note: All debt arising under that certain Revolving Credit Note dated July 23, 1997 in the principal face amount of $80,000,000.00 executed by Pledgor payable to the order of NationsBank of Texas, N.A., and any and all renewals, extensions and rearrangements thereof; iii. Toronto Dominion Promissory Note: All debt arising under that certain Revolving Credit Note dated July 23, 1997 in the principal face amount of $50,000,000.00 executed by Pledgor payable to the order of Toronto Dominion (Texas), Inc., and any and all renewals, extensions and rearrangements thereof; -2- iv. All costs and expenses incurred by Secured Party, including attorney's fees, to obtain, preserve, perfect, enforce and defend this Agreement and maintain, preserve, collect and realize upon the Collateral, together with interest thereon at the default rate provided in the Loan Agreement; and v. All amounts which may be owed to Secured Party or any of the Lenders pursuant to the Loan Documents, or any other documents executed in connection with the indebtedness described in subpart i. above. In the event any amount paid to Secured Party, or any of the Lenders, on any Obligation is subsequently recovered from Secured Party or any of the Lenders in or as a result of any bankruptcy, insolvency or fraudulent conveyance proceeding involving an obligor of the Obligation other than Pledgor, Pledgor shall be liable to the party from whom such amounts were recovered for the amounts so recovered up to the fair market value of the Collateral whether or not the Collateral has been released or the security interest terminated. In the event the Collateral has been released or the security interest terminated, the fair market value of the Collateral shall be determined, at the option of the party from whom such amounts were recovered, as of the date the Collateral was released, the security interest terminated, or said amounts were recovered. B. Use of Proceeds. The proceeds of any indebtedness or obligation secured by the Collateral may be used directly or indirectly to purchase or carry any "margin stock" as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System, or extend credit to or invest in other parties for the purpose of purchasing or carrying any such "margin stock," or to reduce or retire any indebtedness incurred for such purpose or otherwise in a manner which would not violate Regulations G, T or U of the Board of Governors of the Federal Reserve System. 4. Pledgor's Warranties. Pledgor hereby represents and warrants to Secured Party as follows: A. Financing Statements. Except as may be noted by schedule attached hereto and incorporated herein by reference, no financing statement covering the Collateral is or will be on file in any public office, except the financing statements relating to this security interest, and no security interest, other than the one herein created, has attached or been perfected in the Collateral or any part thereof. B. Ownership. Pledgor owns, or will use the proceeds of any loans by Lenders to become the owner of, the Collateral free from any setoff, claim, restriction, lien, security interest or encumbrance except liens for taxes not yet due and payable and the security interest hereunder. C. Power and Authority. Pledgor has full power and authority to make this Agreement, and all necessary consents and approvals of any persons, entities, governmental or regulatory authorities and securities exchanges have been obtained to effectuate the validity of this Agreement. D. Pledged Share Characteristics. The Pledged Shares which have been pledged by Pledgor to Secured Party under this Agreement, or may hereafter be pledged under this Agreement, satisfy and shall satisfy each of the requirements and characteristics set forth on Schedule II hereto. The delivery at any time by Pledgor to Secured Party of additional Pledged Shares shall constitute a representation and warranty by Pledgor that, with respect to such Pledged Shares, and each item thereof, the matters heretofore warranted in clauses (A) through (D) immediately above are true and correct at, and as if they were made at, the date of such delivery. -3- 5. Pledgor's Covenants. Until full payment and performance of all of the Obligation and termination or expiration of any obligation or commitment of Lenders to make advances or loans to Pledgor, unless Secured Party otherwise consents in writing: A. Obligation and This Agreement. Pledgor shall perform all of its agreements herein and in any other agreements between it, Secured Party and any of the Lenders. B. Ownership of Collateral. Pledgor shall defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to Secured Party. Pledgor shall keep the Collateral free from all liens and security interests except those for taxes not yet due and payable and the security interest hereby created. C. Secured Party's Costs. Pledgor shall pay all costs necessary to obtain, preserve, perfect, defend and enforce the security interest created by this Agreement, collect the Obligation, and preserve, defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney's fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party's possession, and without any obligation to do so and without waiving Pledgor's default for failure to make any such payment, Secured Party at its option may pay any such costs and expenses and discharge encumbrances on the Collateral, and such payments shall be a part of the Obligation and bear interest at the rate set out in the Obligation. Pledgor agrees to reimburse Secured Party on demand for any costs so incurred. D. Information and Inspection. Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party; (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral and the Obligation; and (iii) promptly furnish Secured Party or its representatives with any other information Secured Party may reasonably request. E. Additional Documents. Pledgor shall sign and deliver any papers furnished by Secured Party which are necessary or desirable in the judgment of Secured Party to obtain, maintain and perfect the security interest hereunder and to enable Secured Party to comply with any federal or state law in order to obtain or perfect Secured Party's interest in the Collateral or to obtain proceeds of the Collateral. F. Notice of Changes. Pledgor shall notify Secured Party immediately of (i) any material change in the Collateral, (ii) a change in Pledgor's residence or location, (iii) a change in any matter warranted or represented by Pledgor in this Agreement, in any of the other Loan Documents, or any other document or instrument relating to the Obligation or furnished to Secured Party pursuant to this Agreement, and (iv) the occurrence of an Event of Default under this Agreement or any of the other Loan Documents. G. Possession of Collateral. Pledgor shall deliver a copy of this Agreement (or other notice acceptable to Secured Party) to any broker, financial intermediary, or any other person in possession of any of the Collateral or on whose books the interest of Pledgor in the Collateral appears, and such delivery shall constitute notice to such person of Secured Party's security interest in the Collateral and shall constitute Pledgor's instruction to such person to note Secured Party's security interest on their books and records, or deliver to Secured Party certificates or other evidence of the Collateral promptly upon Secured Party's request. Pledgor shall deliver all investment securities and other instruments and documents which are a part of the Collateral and in Pledgor's possession to Secured Party immediately, or if hereafter acquired, immediately following acquisition, in a form suitable for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures appropriately guaranteed in form and substance suitable to Secured Party. H. Change of Name/Status. Pledgor shall not change his name or use any trade name. -4- I. Power of Attorney. Pledgor appoints Secured Party and any officer thereof as Pledgor's attorney-in-fact with full power in Pledgor's name and on Pledgor's behalf to do every act which Pledgor is obligated to do or may be required to do hereunder; however, nothing in this paragraph shall be construed to obligate Secured Party to take any action hereunder nor shall Secured Party be liable to Pledgor for failure to take any action hereunder. This appointment shall be deemed a power coupled with an interest and shall not be terminable as long as the Obligation is outstanding and shall not terminate on the disability or incompetence of Pledgor. Without limiting the generality of the foregoing, Secured Party shall have the right and power to receive, endorse and collect all checks and other orders for the payment of money made payable to Pledgor representing any dividend, interest payment or other distribution payable in respect of the Collateral or any part thereof; provided, however, prior to the occurrence of an Event of Default, Pledgor may retain any dividends paid on the Collateral. J. Other Parties and Other Collateral. No renewal or extensions of or any other indulgence with respect to the Obligation or any part thereof, no modification of the document(s) evidencing the Obligation, no release of any security, no release of any person (including any maker, indorser, guarantor or surety) liable on the Obligation, no delay in enforcement of payment, and no delay or omission or lack of diligence or care in exercising any right or power with respect to the Obligation or any security therefor or guaranty thereof or under this Agreement shall in any manner impair or affect the rights of Secured Party under any law, hereunder, or under any other agreement pertaining to the Collateral. Secured Party need not file suit or assert a claim for personal judgment against any person for any part of the Obligation or seek to realize upon any other security for the Obligation, before foreclosing or otherwise realizing upon the Collateral. Pledgor waives any right that can be waived to the benefit of or to require or control application of any other security or proceeds thereof, and agrees that Secured Party shall have no duty or obligation to Pledgor to apply to the Obligation any such other security or proceeds thereof. K. Waivers by Pledgor. Pledgor waives notice of the creation, advance, increase, existence, extension or renewal of, and of any indulgence with respect to, the Obligation; waives presentment, demand, notice of dishonor, and protest; waives notice of acceleration (or intent to accelerate) of the Obligation; waives notice of the amount of the Obligation outstanding at any time, notice of any change in financial condition of any person liable for the Obligation or any part thereof, notice of any Event of Default, and all other notices respecting the Obligation; and agrees that maturity of the Obligation and any part thereof may be accelerated, extended or renewed one or more times by Secured Party in its discretion, without notice to Pledgor. Pledgor waives any right to require that any action be brought against any other person or to require that resort be had to any other security or to any balance of any deposit account. Pledgor further waives any right of subrogation or to enforce any right of action against any other pledgor until the Obligation is paid in full. L. Additional Provisions. If one or more Riders to this Agreement are executed by Pledgor, the covenants and provisions of each such Rider shall be incorporated by reference into this Agreement. M. Rule 144 Rider. The Collateral is comprised in whole or in part of control and/or restricted securities, which shall be subject to the additional terms and provisions described on the Rule 144 Rider attached hereto and made a part hereof for all purposes. 6. Maintenance of Collateral. A. Maintenance of Collateral. At all times during the term of the Agreement, Pledgor agrees to maintain as security for the Obligation Collateral of a type described on Schedule II with an Adjusted Collateral Value (as determined herein) in excess of the unpaid principal balance of the Obligation. The -5- Adjusted Collateral Value shall be determined by multiplying the Collateral Value (as defined in subparagraph B below) by the Margin Call Percentage shown on Schedule II. In addition, no advance requested by Pledgor shall be made to Pledgor if the sum of (i) the outstanding principal balance of the Obligation plus (ii) the amount of the advance requested, equals or exceeds the sum of the amounts determined by multiplying the Collateral Value by the Original Advance Percentage for each type of Collateral securing the Obligation. B. Value of Collateral. The "Collateral Value" of Collateral shall be determined at any given time as follows: i. If stock, the Collateral Value shall be determined by multiplying (i) the per share price of such stock at the most recent close of trading on a trading exchange for such stock, times (ii) the number of shares of such stock held by Secured Party as Collateral. In the event that stock held as Collateral is not traded on an exchange, the Collateral Value of such stock shall be determined by obtaining the quoted value of such stock from a reputable brokerage firm selected by Secured Party. If no such quote is available, the value will be determined by Secured Party in its sole discretion. ii. If a mutual fund, the Collateral Value shall be determined by multiplying (i) the most recent per share net asset value of such mutual fund obtained from the Wall Street Journal, times (ii) the number of shares of such mutual fund held by Secured Party as Collateral. In the event that such net asset value is not available in the Wall Street Journal, the Collateral Value shall be the value quoted to Secured Party by a reputable brokerage firm selected by Secured Party. iii. If corporate bonds, the Collateral Value shall be determined from the most recent closing price for such bonds obtained from the Wall Street Journal. If such closing price is not available in the Wall Street Journal, the Collateral Value shall be the value quoted to Secured Party by a reputable brokerage firm selected by Secured Party. iv. If government or agency obligations or bonds, the Collateral Value shall be determined from the most recent closing bid price for such bonds obtained from the Wall Street Journal. If such closing bid price is not available in the Wall Street Journal, the Collateral Value shall be the value quoted to Secured Party by a reputable brokerage firm selected by Secured Party. v. If other than stock, mutual funds, corporate bonds, or government or agency obligations or bonds, the Collateral Value shall be determined by the Secured Party in its sole discretion. C. Breach of Collateral Maintenance. If Pledgor fails to maintain Collateral with an Adjusted Collateral Value as set forth above, the Pledgor shall have two Business Days from the date Pledgor is notified by Secured Party (in writing or orally) of such noncompliance, to either pledge additional Collateral satisfactory to Secured Party, in its sole discretion, or reduce the unpaid principal balance of the Obligation such that, in either case, the unpaid principal balance of the Obligation is less than the sum of the amounts determined by multiplying the Collateral Value by the Original Advance Percentage shown on Schedule II. Any reduction in unpaid principal of the Obligation shall not affect or reduce any future principal payments due except to the extent such reductions are applied in accordance with the documents evidencing or securing the Obligation. In the event Pledgor fails to comply with the terms hereof, Secured Party may, without any further notice of any kind, exercise any of the following rights and remedies, at Secured Party's option: (a) The rights and remedies set out in Section 8.B. of this Agreement, including without limitation the right to accelerate the Obligation and liquidate the Collateral. -6- (b) Sell all or any part of the Collateral and apply the proceeds of such sale to the Obligation to bring the Obligation back into compliance (that is, to reduce the unpaid principal of the Obligation such that the unpaid principal of the Obligation is less than the sum of the amounts determined by multiplying the Collateral Value by the Original Advance Percentage shown on Schedule II. If an Event of Default exists hereunder and the Collateral is declining in value or threatens to decline speedily in value, Secured Party shall have no obligation to notify Pledgor of the failure to maintain Collateral with an Adjusted Collateral Value as set forth in subparagraph A above or to provide Pledgor with an opportunity to cure such noncompliance, and in such case Pledgor agrees that Secured Party may immediately at Secured Party's sole option (i) declare amounts due under the Obligation to be immediately due and payable, and/or (ii) sell all or any part of the Collateral and apply the proceeds of such Collateral to the Obligation. D. Sale or Substitution of Collateral. If no Event of Default has occurred under this Agreement, Pledgor may, provided none of the following actions would result in the occurrence of an Event of Default: (i) sell, trade, or withdraw any part of the Collateral; or (ii) substitute new Collateral for existing Collateral, provided that, in either event, the new Collateral shall be acceptable to Secured Party in its sole discretion and the unpaid principal balance of the Obligation shall be less than the sum of the amounts determined by multiplying the Collateral Value by the Original Advance Percentage for each type of Collateral securing the Obligation. 7. Rights and Powers of Secured Party. A. General. Secured Party, before or after default, without liability to Pledgor may: take control of proceeds, including stock received as dividends or by reason of stock splits; release the Collateral in its possession to Pledgor, temporarily or otherwise; require additional Collateral; and reject as unsatisfactory any property hereafter offered by Pledgor as Collateral. Other than the exercise of reasonable care to ensure the safe custody of the Collateral in Secured Party's possession, Secured Party shall have no obligation, duty or responsibility for the Collateral and specifically, without limiting the foregoing, shall have no obligation, duty or responsibility to collect any amounts payable, or exercise any right or option, in respect of the Collateral or to sell all or any portion of the Collateral to avoid market loss. Secured Party shall not be liable for failure to collect any account or instruments, or for any act or omission on the part of Secured Party, its officers, agents or employees, except for its or their own willful misconduct or gross negligence. The foregoing rights and powers of Secured Party will be in addition to, and not a limitation upon, any rights and powers of Secured Party given by law, elsewhere in this Agreement, or otherwise. B. Convertible Collateral. Before or after the occurrence of an Event of Default, Secured Party may present for conversion any Collateral which is convertible into any other instrument or investment security or a combination thereof with cash; provided, however, that: (i) Secured Party shall provide Pledgor with notice if any of the Collateral is presented for conversion, but such notice shall not be a condition precedent to Secured Party taking such action; and (ii) prior to the occurrence of an Event of Default, Secured Party agrees that it shall not convert (a) Tele-Communications, Inc. ("TCI") Series B Common Stock into TCI Series A Common Stock; and (b) TCI Liberty Media Group Series B Common Stock into TCI Liberty Media Group Series A Common Stock. Secured Party shall have no obligation to present any Collateral for conversion. C. Voting Rights. Subject to the following sentence, the Pledgor shall be entitled to exercise any and all voting and/or consensual rights and powers relating or pertaining to the Collateral or any part thereof for any purpose not inconsistent with the terms of this Agreement. Upon (i) the occurrence after the date hereof of an Event of Default and (ii) the giving of written notice by Secured Party to Pledgor of its intention to (A) foreclose upon or otherwise dispose of the Collateral or (B) exercise its voting rights pertaining to the Collateral, all rights of the Pledgor to exercise the voting and/or consensual rights and -7- powers which it is entitled to exercise hereunder shall cease, at the option of Secured Party, and all such rights shall thereupon become vested in Secured Party who shall have the sole and exclusive right and authority to exercise such voting and/or consensual rights and powers. 8. Default. A. Event of Default. An event of default ("Event of Default") shall occur if: (a) Pledgor or any other obligor on all or part of the Obligation shall fail to timely and properly pay or observe, keep or perform any term, covenant, agreement or condition in this Agreement or in any other agreement between Pledgor and Secured Party or between Secured Party and any other obligor on the Obligation, including but not limited to any other note or instrument, loan agreement, security agreement, deed of trust, mortgage, promissory note, assignment or other agreement or instrument concerning the Obligation; or (b) an Event of Default shall occur under the Loan Agreement or any of the other Loan Documents. Pledgor agrees that, among its other covenants and agreements contained herein, the failure to maintain Collateral with an Adjusted Collateral Value as set forth in Section 6 hereof shall constitute an Event of Default under this Agreement and the Loan Agreement. B. Rights and Remedies. If any Event of Default shall occur, then, in each and every such case, Secured Party may, without (a) presentment, demand, or protest, (b) notice of default, dishonor, demand, non-payment, or protest, (c) notice of intent to accelerate all or any part of the Obligation, (d) notice of acceleration of all or any part of the Obligation, or (e) notice of any other kind, all of which Pledgor hereby expressly waives (except for any notice required under this Agreement, any of the other Loan Documents or which may not be waived under applicable law), at any time thereafter exercise and/or enforce any of the following rights and remedies, at Secured Party's option: i. Acceleration. Declare the Obligation immediately due and payable, and the obligation, if any, of Secured Party to permit further borrowings under the Obligation shall at Secured Party's option immediately cease and terminate. ii. Liquidation of Collateral. Subject to applicable securities laws, sell, or instruct any agent or broker to sell, all or any part of the Collateral in a public or private sale, direct any agent or broker to liquidate all or any part of any account and deliver all proceeds thereof to Secured Party, and apply all proceeds to the payment of any or all of the Obligation in such order and manner as Secured Party shall, in its discretion, choose. Secured Party is authorized, at any sale of the Collateral, if it deems it advisable, to restrict the prospective bidders or purchasers to those persons who will represent and agree that they are purchasing for their own account, for investment, and not with a view to distribution or sale of any of the Collateral. Secured Party shall have no obligation to disclose or provide any information concerning the Issuers or the Collateral to prospective purchasers of the Collateral other than information in its possession at such time. iii. Uniform Commercial Code. All of the rights, powers and remedies of a secured creditor under the Uniform Commercial Code ("UCC") as adopted in the jurisdiction to which Secured Party is subject under this Agreement. Pledgor acknowledges and agrees that the Collateral is customarily sold on a recognized market and accordingly Secured Party may sell the Collateral without prior notification, advertisement or notice of any kind at any broker's board or securities exchange. iv. Right of Set Off. Without notice or demand to Pledgor, set off and apply against any and all of the Obligation any and all deposits (general or special, time or demand, provisional or final) and any other indebtedness, at any time held or owing by Secured Party, by any of the Lenders, or by any of their respective affiliates or correspondents to or for the credit of the account of Pledgor or any guarantor or indorser of Pledgor's Obligation. -8- v. Additional Remedies. Without liability to Pledgor: take control of funds generated by the Collateral, such as cash dividends, interest and proceeds, and use same to reduce any part of the Obligation and exercise all other rights which an owner of such Collateral may exercise; and at any time transfer any of the Collateral or evidence thereof into its own name or that of its nominee. Pledgor specifically understands and agrees that any sale by Secured Party of all or part of the Collateral pursuant to the terms of this Agreement may be effected by Secured Party at times and in manners which could result in the proceeds of such sale as being significantly and materially less than might have been received if such sale had occurred at different times or in different manners, and Pledgor hereby releases Secured Party and its officers and representatives from and against any and all obligations and liabilities arising out of or related to the timing or manner of any such sale. If, in the opinion of Secured Party, there is any question that a public sale or distribution of any Collateral will violate any state or federal securities law, Secured Party may offer and sell such Collateral in a transaction exempt from registration under federal securities law, and any such sale made in good faith by Secured Party shall be deemed "commercially reasonable." 9. General. A. Parties Bound. Secured Party's rights hereunder shall inure to the benefit of Secured Party, any of the Lenders, and their respective successors and assigns, and in the event of any assignment or transfer of any of the Obligation or the Collateral, Secured Party thereafter shall be fully discharged from any responsibility with respect to the Collateral so assigned or transferred, but Secured Party shall retain all rights and powers hereby given with respect to any of the Obligation or the Collateral not so assigned or transferred. All representations, warranties and agreements of Pledgor if more than one are joint and several and all shall be binding upon the personal representatives, heirs, successors and assigns of Pledgor. B. Waiver. No delay of Secured Party in exercising any power or right shall operate as a waiver thereof; nor shall any single or partial exercise of any power or right preclude other or further exercise thereof or the exercise of any other power or right. No waiver by Secured Party of any right hereunder or of any default by Pledgor shall be binding upon Secured Party unless in writing, and no failure by Secured Party to exercise any power or right hereunder or waiver of any default by Pledgor shall operate as a waiver of any other or further exercise of such right or power or of any further default. Each right, power and remedy of Secured Party as provided for herein or in any of the other Loan Documents, or which shall now or hereafter exist at law or in equity or by statute or otherwise, shall be cumulative and concurrent and shall be in addition to every other such right, power or remedy. The exercise or beginning of the exercise by Secured Party of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by Secured Party of any or all other such rights, powers or remedies. C. Agreement Continuing. This Agreement shall constitute a continuing agreement applying to all future as well as existing transactions, whether or not of the character contemplated at the date of this Agreement, and if all transactions between Secured Party and Pledgor shall be closed at any time, shall be equally applicable to any new transactions thereafter. Provisions of this Agreement, unless by their terms exclusive, shall be in addition to other agreements between the parties. Time is of the essence of this Agreement. D. Definitions. Unless the context indicates otherwise, definitions in the UCC apply to words and phrases in this Agreement; if UCC definitions conflict, Articles 8 and/or 9 definitions apply. -9- E. Notice. Notice shall be deemed reasonable if mailed postage prepaid at least 5 days before the related action (or if the UCC elsewhere specifies a longer period, such longer period) to the address of Pledgor given above. Each notice, request and demand shall be deemed given or made, if sent by mail, upon the earlier of the date of receipt or five (5) days after deposit in the U.S. Mail, first class postage prepaid, or if sent by any other means, upon delivery. F. Modifications. No provision hereof shall be modified or limited except by a written agreement expressly referring hereto and to the provisions so modified or limited and signed by Pledgor and Secured Party. The provisions of this Agreement shall not be modified or limited by course of conduct or usage of trade. G. Partial Invalidity. The unenforceability or invalidity of any provision of this Agreement shall not affect the enforceability or validity of any other provision herein, and the invalidity or unenforceability of any provision of any of the Loan Documents to any person or circumstance shall not affect the enforceability or validity of such provision as it may apply to other persons or circumstances. H. Applicable Law and Venue. This Agreement has been delivered in the State of Texas and shall be construed in accordance with the laws of that State. It is performable by Pledgor in the county or city of Secured Party's address set out above and Pledgor expressly waives any objection as to venue in any such location. Wherever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Agreement. I. Financing Statement. To the extent permitted by applicable law, a carbon, photographic or other reproduction of this Agreement or any financing statement covering the Collateral shall be sufficient as a financing statement. J. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES ----------- HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR DOCUMENTS (INCLUDING BUT NOT LIMITED TO THE LOAN DOCUMENTS), INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION. i. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE ------------- COUNTY OF PLEDGOR'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS INSTRUMENT, AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION -10- ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS. ii. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION --------------------- SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT OR DOCUMENT; OR (II) BE A WAIVER BY SECURED PARTY OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF SECURED PARTY HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. SECURED PARTY MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES. K. Controlling Document. To the extent that this Agreement conflicts with or is in any way incompatible with any of the other Loan Documents, any promissory note shall control over any other document, and if such promissory note does not address an issue, then each other loan document shall control to the extent that it deals most specifically with an issue. NOTICE OF FINAL AGREEMENT. THIS WRITTEN AGREEMENT AND ANY OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. [Remainder of page intentionally blank; signature pages follow] -11- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives as of the date first above written. Agent/Secured Party: Pledgor(s)/Debtor(s): NationsBank of Texas, N.A., Agent By: /s/ Langford Keith, III /s/ John C. Malone ------------------------------------ ----------------------- Langford Keith, III, Senior Vice President John C. Malone -12- SCHEDULE I TO PLEDGE AGREEMENT 11,500,000 shares of Tele-Communications, Inc. Series B TCI Group Common Stock, in the name of "John C. Malone", CUSIP Number 87924V200; and 3,084,358 shares of Tele-Communications, Inc. Series B Liberty Media Group Common Stock, in the name of "John C. Malone", CUSIP Number 87924V606, as evidenced by the following:
- -------------------------------------------------------------------------------- Issuer Certificate Number Number of Shares - -------------------------------------------------------------------------------- Tele-Communications, Inc. TB6384 11,500,000 Series B TCI Group - -------------------------------------------------------------------------------- Tele-Communications, Inc. LB0649 416,666 Series B Liberty Media Group - -------------------------------------------------------------------------------- Tele-Communications, Inc. LB0651 2,251,026 Series B Liberty Media Group - -------------------------------------------------------------------------------- Tele-Communications, Inc. LB0652 416,666 Series B Liberty Media Group - --------------------------------------------------------------------------------
Pledgor(s)/Debtor(s): - --------------------------- John C. Malone SCHEDULE II TO PLEDGE AGREEMENT 1. Type of Collateral: Tele-Communications, Inc.Series A or B, TCI Group Common Stock; Tele-Communications, Inc.Series A or B Liberty Media Group Common Stock; and Tele-Communications, Inc.Series A or B TCI Ventures Group Common Stock; which (1) are validly issued, fully paid and non-assessable; (2) are owned of record and beneficially by Pledgor, and represented by stock certificates issued in the name of Pledgor properly endorsed to Secured Party; (3) may be sold by Secured Party, pursuant to the terms of the Pledge Agreement; (4) are traded on the New York Stock Exchange, American Stock Exchange or the NASDAQ national market system (each a "Recognized Market"); and (5) have been delivered and pledged to Secured Party pursuant to the Pledge Agreement. 2. Margin Call Percentage: Sixty percent (60%). 3. Original Advance Percentage: Fifty percent (50%). SCHEDULE III PLEDGE CERTIFICATE Reference is hereby made to that certain Pledge Agreement dated as of July 23, 1997 (the "Pledge Agreement"), between John C. Malone ("Pledgor") and NationsBank of Texas, N.A., a national banking association, in its capacity as Agent for itself and the Lenders (in such capacity, referred to herein as "Secured Party"). This Pledge Certificate is delivered pursuant to Section 2 of the Pledge Agreement. All capitalized terms used and not otherwise defined herein shall have their respective meanings as set forth in the Pledge Agreement. Pledgor hereby certifies that concurrently with the delivery of this Pledge Certificate, [_] Pledgor is delivering to Secured Party the following items of Collateral as additional Collateral for the Obligation (collectively, the "Additional Collateral"): --------------------------------------------------------------------------- --------------------------------------------------------------------------- --------------------------------------------------------------------------- --------------------------------------------------------------------------- [_] Pledgor is selling or otherwise disposing of the following items of Collateral: --------------------------------------------------------------------------- --------------------------------------------------------------------------- --------------------------------------------------------------------------- --------------------------------------------------------------------------- ------------------, and Pledgor is delivering to Secured Party the following items of Collateral being substituted therefor: --------------------------------------------------------------------------- --------------------------------------------------------------------------- --------------------------------------------------------------------------- --------------------------------------------------------------------------- ------------------- (collectively, the "Substituted Collateral"). With respect to each of the items of Additional Collateral or Substituted Collateral, as the case may be, Pledgor acquired such item, and has borne all economic risks thereto, since the following date or dates: - ---------------------------------------------------- Pledgor hereby acknowledges that Pledgor has granted to Secured Party, for the benefit of Lenders, a security interest in the Additional Collateral and/or Substituted Collateral pursuant to the Pledge Agreement to secure the Obligation and that the Collateral covered by the Pledge Agreement includes, without limitation, the Substituted Collateral and Additional Collateral. Pledgor hereby represents and warrants that all of the representations and warranties contained in the Pledge Agreement are true and correct in all material respects, including with respect to the Additional Collateral and Substituted Collateral, on the date hereof as though made as of the date hereof. EXECUTED this ______ day of _____________,19__. ----------------------------------------------- John C. Malone RULE 144 RIDER -------------- This Rule 144 Rider is made this 23rd day of July, 1997 and is incorporated into and shall be deemed to supplement the Pledge Agreement ("Agreement") of the same date given by Pledgor to secure the Obligation to Secured Party. Terms used and not otherwise defined in this Rider which are defined in the Agreement have the meanings given them in the Agreement. 1. The securities listed on Schedule I to the Agreement, which Schedule is made a part of this Rider and the Agreement for all purposes, are or may be deemed (check one or more boxes): [X] Restricted securities [X] Control securities for purposes of Rule 144 of the General Regulations under the Securities Act of 1933 ("Rule 144") promulgated by the Securities and Exchange Commission. These securities ("Rule 144 Securities") comprise all or part of the Collateral held by Secured Party presently subject to the terms and conditions of the Agreement and this Rider. 2. Pledgor represents and warrants that (i) Pledgor acquired the Rule 144 Securities, and held such securities, for a period of at least two (2) years prior to the date hereof, for purposes of determining the holding period of the Rule 144 Securities under Rule 144, and Borrower has borne the full economic risks of such securities since their respective dates of acquisition; (ii) the Rule 144 Securities are free and clear of all liens (except for liens, encumbrances and debt held by Secured Party) encumbrances and debt. 3. Pledgor covenants and agrees that: a. Pledgor will cooperate fully with Secured Party with respect to any sale by Secured Party of any of the Rule 144 Securities, including full and complete compliance with all requirements of Rule 144, and will give to Secured Party all information and will do all things necessary, including the execution of all documents, forms, instruments and other items, to comply with Rule 144 for the complete and unrestricted sale and/or transfer of the Rule 144 Securities and will exercise its best efforts to have the issuer of such securities, upon the request of Secured Party, take all such action as may be required to satisfy the public information requirements of Rule 144(c). b. Pledgor will not: (i) approve or consent to any amendment of the articles of incorporation or charter of any issuer of the Rule 144 Securities that may materially adversely affect the value of the Rule 144 Securities; or (ii) permit any issuer of the Rule 144 Securities to merge or consolidate with or into any corporation or other person, without the prior written consent of Secured Party if such merger or consolidation would extend any holding period under Rule 144 with respect to such Rule 144 Securities or otherwise adversely affect Secured Party's ability to sell or otherwise dispose of such securities in reliance on Rule 144(k), and the interpretations thereof by the Securities and Exchange Commission. c. Pledgor will use its best efforts, upon Secured Party's written request, to obtain and publish or have issuer publish all information necessary to satisfy Rule 144 in the event any issuer of the Rule 144 Securities is not current in its filings under the Securities Exchange Act of 1934 at the time of a foreclosure sale by Secured Party. 4. In the event any issuer of the Rule 144 Securities defaults in its reporting obligations under the Securities Exchange Act of 1934, Secured Party may require Pledgor to substitute new Collateral satisfactory to Secured Party in its discretion for such securities. By signing below, Pledgor accepts and agrees to the terms and covenants contained in this Rider. ---------------------------------------------- John C. Malone EX-7.(E) 3 REVOLVING CREDIT AGREEMENT, DATED JULY 23, 1997 [LOGO OF HAYNES AND BOONE, LLP APPEARS HERE] Exhibit 7(E) CONFORMED/*/ REVOLVING CREDIT AGREEMENT among JOHN C. MALONE, as Borrower NATIONSBANK OF TEXAS, N.A., as Agent, TORONTO DOMINION SECURITIES (USA), INC., as Co-Agent, and THE LENDERS NAMED HEREIN, as Lenders $130,000,000 As of July 23, 1997 - ------------------------------ * Conformed to show signatures. TABLE OF CONTENTS -----------------
Page ---- SECTION 1 DEFINITIONS...........................................................1 1.1 Definitions...........................................................1 1.2 Rules of Construction.................................................6 SECTION 2 THE REVOLVING CREDIT FACILITY.........................................6 2.1 Commitment to Lend....................................................6 2.2 Method of Borrowing...................................................7 2.3 Notes.................................................................8 2.4 Interest Rate.........................................................8 2.5 Special Provisions for Eurodollar Advances; Taxes.....................9 2.6 Payments of the Note.................................................10 2.7 Fees.................................................................11 2.8 Termination of Commitment............................................11 2.9 Sharing of Payments, Etc.............................................11 2.10 Set-off..............................................................11 2.11 Capital Adequacy.....................................................11 SECTION 3 COLLATERAL...........................................................12 3.1 Liens and Security Interests.........................................12 SECTION 4 CONDITIONS PRECEDENT.................................................12 4.1 Initial Advance......................................................12 4.2 All Advances.........................................................12 SECTION 5 REPRESENTATIONS AND WARRANTIES.......................................12 5.1 Taxes................................................................12 5.2 Pledged Shares.......................................................12 5.3 Authority and Compliance.............................................13 5.4 Binding Agreement....................................................13 5.5 Litigation...........................................................13 5.6 No Conflicting Agreements............................................13 5.7 Financial Statements.................................................13 5.8 Use of Proceeds; Margin Stock........................................13 5.9 Representations and Warranties.......................................13 5.10 Survival of Representations and Warranties...........................14 SECTION 6 COVENANTS............................................................14 6.1 Financial Statements.................................................14 6.2 Compliance...........................................................14 6.3 Adverse Conditions or Events.........................................14 6.4 Taxes and Other Obligations..........................................14 6.5 Transfer of Assets...................................................14 6.6 Liens................................................................15 6.7 Other Covenants......................................................15 6.8 Indemnity by Borrower................................................15 SECTION 7 EVENTS OF DEFAULT....................................................15 7.1 Events of Default....................................................15 7.2 Remedies Upon Event of Default.......................................16
7.3 Performance by Lender................................................16 SECTION 8 THE AGENT............................................................17 8.1 The Agent............................................................17 8.2 Expenses.............................................................18 8.3 Proportionate Absorption of Losses...................................18 8.4 Delegation of Duties; Reliance.......................................19 8.5 Limitation of Agent's Liability......................................19 8.6 Default..............................................................20 8.7 Collateral Matters...................................................20 8.8 Limitation of Liability..............................................20 8.9 Relationship of Lenders..............................................21 8.10 Benefits of Agreement................................................21 SECTION 9 MISCELLANEOUS........................................................21 9.1 Accounting Reports...................................................21 9.2 Waiver...............................................................21 9.3 Payment of Expenses..................................................21 9.4 Notices..............................................................21 9.5 Governing Law........................................................22 9.6 Choice of Forum; Consent to Service of Process and Jurisdiction......22 9.7 Invalid Provisions...................................................22 9.8 Maximum Interest Rate................................................22 9.9 Nonliability of Lenders..............................................22 9.10 Article 15.10(b).....................................................22 9.11 Successors and Assigns...............................................22 9.12 Entirety.............................................................25 9.13 Headings.............................................................25 9.14 Survival.............................................................25 9.15 Amendments, Etc......................................................25 9.16 No Third Party Beneficiary...........................................25 9.17 WAIVER OF JURY TRIAL.................................................25 9.18 Multiple Counterparts................................................26 9.19 Confidentiality......................................................26 9.20 Arbitration..........................................................26
REVOLVING CREDIT AGREEMENT THIS REVOLVING CREDIT AGREEMENT (this "Agreement"), dated as of July 23, 1997, is made among JOHN C. MALONE ("Borrower"), each of the Persons listed on the signature pages hereof (herein collectively called, together with each Person that becomes a Lender pursuant to Section 9.11, the "Lenders," and individually a "Lender"), and NATIONSBANK OF TEXAS, N.A., a national banking association, as agent for Lenders to the extent and in the manner provided in Section 8 (herein called, together with any successors and assigns, "Agent,") and Toronto Dominion Securities (USA), Inc. as Co-Agent for Lenders. R E C I T A L S - - - - - - - - 1. Borrower has requested that Lenders provide to Borrower a revolving credit facility of up to $130,000,000.00 to provide funds for the purchase of the common stock of Tele-Communications, Inc. ("TCI") and for other business investments, and to pay accrued interest on the Loan. 2. Lenders are willing to provide such a facility to Borrower, upon the terms, and subject to the conditions, hereinafter set forth. NOW, THEREFORE, in consideration of the mutual promises herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: SECTION 1 DEFINITIONS. 1.1 Definitions. As used in this Agreement, all exhibits and schedules hereto and in any note, certificate, report, or other Loan Document made or delivered pursuant to this Agreement, the following terms have the respective meanings assigned to them in this Section 1, or in the section or recital referred to below: "Advance" means (a) each disbursement by Lenders of a sum or sums lent to Borrower pursuant to this Agreement, (b) each conversion of an Advance to another Type or Advance, and (c) each rollover of a Eurodollar Advance to a successive Interest Period. "Affiliate" of any Person means any other Person directly or indirectly, controlling, controlled by, or under common control with, such Person. "Agent" has the meaning set forth in the first paragraph of this Agreement. "Agent's Lending Office" means Agent's lending office located at 901 Main Street, Dallas, Texas 75202, or such other address as Agent may hereafter designate in writing as Agent's Lending Office by notice to Borrower and Lenders. "Agreement" means this Revolving Credit Agreement, including the schedules and exhibits hereto, as the same may be renewed, extended, or modified from time-to-time. "Applicable Lending Office" means for each Lender and each Type of Advance, the lending office of such Lender (or of an Affiliate of such Lender) designated for such Type of Advance below its name on the signature pages hereof or an Assignment and Acceptance, or such other office of such Lender (or of an Affiliate of such Lender) as such Lender may from time-to-time specify to Borrower and Agent as the office by which its Advances of such Type are to be made and maintained. "Assignee" has the meaning set forth in Section 9.11(b). "Assigning Lender" has the meaning set forth in Section 9.11(b). "Assignment and Acceptance" means an assignment and acceptance entered into by an Assigning Lender and its Assignee and accepted by Agent pursuant to Section 9.11, in substantially the form of Exhibit A. "Borrower" has the meaning set forth in the first paragraph of this Agreement. "Business Day" means (a) any day on which Agent is open for regular business, and (b) with respect to all borrowings, payments, conversions, continuations, Interest Periods, and notices in connection with Eurodollar Advances, any day which is a Business Day described in clause (a) above and which is also a day on which dealings in Dollar deposits are carried out in the London interbank market. "Co-Agent" means Toronto Dominion Securities (USA), Inc. "Code" means the Internal Revenue Code of 1986, as amended, and all regulations promulgated and rulings issued thereunder. "Collateral" has the meaning assigned to such term in the Pledge Agreement. "Collateral Documents" means the Pledge Agreement and all security agreements, pledge agreements, and other agreements or documents executed or delivered to secure repayment of the Obligation, or any part thereof. "Commitment" means, as to each Lender as of any date, the obligation of such Lender on such date to make Advances hereunder in an aggregate principal amount at any time outstanding up to but not exceeding the amount set forth below its name on the signature pages hereof (or in an Assignment and Acceptance) as its Commitment, as the same may be reduced pursuant to the terms hereof. "Commitments" means the Commitments of all Lenders in the original aggregate principal amount of $130,000,000.00. "Contract Rate" means (a) with respect to a Prime Rate Advance, the Prime Rate, and (b) with respect to a Eurodollar Advance, the Eurodollar Rate plus seven-eighths of one percent (0.875%). "Default Rate" means a per annum rate of interest equal from day-to-day to the lesser of (a) the sum of the Prime Rate plus three percent (3%), and (b) the Maximum Rate. "Dollars" and "$" mean lawful money of the United States of America. "Eligible Assignee" means any commercial bank, savings and loan association, savings bank, finance company, insurance company, pension fund, mutual fund, or other financial institution (whether a corporation, partnership, or other entity) approved by Agent and, so long as no Potential Default or Event of Default has occurred and is continuing, Borrower, such approvals not to be unreasonably withheld. "Eurodollar Advance" means any Advance hereunder with respect to which the interest rate is calculated by reference to the Eurodollar Rate for a particular Interest Period. "Eurodollar Rate" means, for any Eurodollar Advance for any Interest Period therefor, the rate per annum (rounded upwards, if necessary, to the nearest 1/16th of one percent) equal to the rate appearing on page "LIBO" on the Reuter Monitor System (or any successor page; or in the absence thereof, an equivalent source obtained by Agent) as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first (1st) day of such Interest Period for a term comparable to such Interest Period. "Eurodollar Reserve Requirement" means, for any Lender on any day, that percentage (expressed as a decimal fraction) that is in effect on such day, as provided by the Board of Governors of the Federal Reserve System (or any successor governmental body), applied for determining the reserve requirements of such Lender (including, without limitation, basic, supplemental, marginal, and emergency reserves) under Regulation D, with respect to "Eurocurrency liabilities" as currently defined in Regulation D, or under any similar or successor regulation with respect to Eurocurrency liabilities or Eurocurrency funding. Each determination by any Lender of the Eurodollar Reserve Requirement shall, in the absence of manifest error, be conclusive and binding. "Event of Default" has the meaning set forth in Section 7.1. "Federal Funds Rate" means, on any day, the annual rate (rounded upwards, if necessary, to the nearest 0.01%) determined by Agent (which determination is conclusive and binding, absent manifest error) to be equal to the weighted average of the rates on overnight federal funds transactions with member banks of the Federal Reserve System arranged by federal funds brokers as published by the Federal Reserve Bank of New York on the next successive Business Day; provided, however, that (a) if such determination date is not a Business Day, the Federal Funds Rate for such day shall be the rate for such transactions on the next preceding Business Day as published on the next successive Business Day, or (b) if those rates are not published for any Business Day, the Federal Funds Rate shall be the average of the quotations at approximately 10:00 a.m. on such Business Day received by Agent from three (3) federal funds brokers of recognized standing selected by Agent in its sole discretion. "Funding Loss" has the meaning set forth in Exhibit D. "Governmental Authority" means any nation or government, any state or political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government. "Governmental Requirement" means any federal, state, local, municipal, foreign, international, multinational, or other administrative order, constitution, law, ordinance, principle of common law, regulation, statute, or treaty as in effect on the date hereof. "Initial Collateral" shall mean the shares of common stock more fully described on Exhibit F attached hereto. "Interest Period" means, with respect to a Eurodollar Advance, a period commencing: (a) on the borrowing date of such Eurodollar Advance; or (b) on the conversion date pertaining to such Eurodollar Advance, if made pursuant to a conversion as described in Section 2.2(c); or (c) on the last day of the preceding Interest Period, in the case of a rollover to a successive Interest Period; and ending one (1), two (2), three (3), four (4), or six (6) months thereafter, as Borrower shall elect in accordance with Section 2.2(c); provided that: (i) any Interest Period that would otherwise end on a day which is not a Business Day shall be extended to the next succeeding Business Day, unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day; (ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to Clause (i) above, end on the last Business Day of a calendar month; and (iii) if the Interest Period for any Eurodollar Advance would otherwise end after the final maturity date of the Loan, then such Interest Period shall end on the final maturity date of the Loan. "Lender" and "Lenders" has the meanings set forth in the first paragraph of this Agreement. "Lien" means any lien, mortgage, security interest, tax lien, pledge, negative pledge, encumbrance, conditional sale, or title retention arrangement, or any other interest in property designed to secure the repayment of indebtedness, whether arising by agreement, or under any statute, law, or otherwise. "Loan" means the revolving credit loan made or to be made hereunder to Borrower by Lenders pursuant to Section 2.1. "Loan Documents" means this Agreement, the Notes, the Collateral Documents, and any agreements, documents (and with respect to this Agreement, and such other agreements and documents, any renewals, extensions, amendments, or supplements thereto), or certificates at any time executed or delivered pursuant to the terms of this Agreement. "Margin Requirements" shall mean all statutes, regulations and interpretations pertaining to extensions of credit to purchase or carry, or extensions of credit secured (directly or indirectly) by, margin stock, including without limitation, the certification, loan-to-value, and other requirements of the Securities Exchange Act of 1934 and Regulations U and X of the Board of Governors of the Federal Reserve System, and any successor regulations. "Material Adverse Effect" means any material adverse change in, or effect upon, (a) the validity, performance, or enforceability of any Loan Document, (b) the financial condition of Borrower, or (c) the ability of Borrower to fulfill its obligations under the Loan Documents. "Maximum Rate" means the highest nonusurious rate of interest (if any) permitted from day-to- day by applicable law. Agent and Lenders hereby notify and disclose to Borrower that, for purposes of Tex. Rev. Civ. Stat. Ann. art. 5069-1.04, as it may from time-to-time be amended, the "applicable rate ceiling" shall be the "indicated rate" ceiling from time-to-time in effect, as limited by article 5069-1.04(b); provided, however, that to the extent permitted by applicable law, Agent and Lenders reserve the right to change the "applicable rate ceiling" from time-to-time by further notice and disclosure to Borrower. "Notes" means the Revolving Credit Notes in substantially the form of Exhibit B, executed by Borrower and delivered pursuant to the terms of this Agreement, together with any renewals, extensions, or modifications thereof, and "Note" means any one of the Notes. "Notice of Borrowing" means, with respect to any Advance, a notice substantially in the form of Exhibit C. "Obligation" means all present and future Indebtedness, obligations, and liabilities, and all renewals and extensions thereof, or any part thereof, now or hereafter owed to Agent or any Lender by Borrower arising pursuant to any of the Loan Documents, and all renewals and extensions thereof, together with all interest accruing thereon, and costs, expenses, and reasonable attorneys' fees incurred in the enforcement or collection thereof. "Person" includes an individual, corporation, joint venture, general or limited partnership, limited liability company, trust, unincorporated organization, or government, or any agency or political subdivision thereof. "Pledge Agreement" shall mean that certain Pledge Agreement, dated as of the date hereof, executed by Borrower in favor of Agent, Co-Agent and Lenders, and any renewals, extensions, modifications or restatements thereof. "Pledged Shares" shall have the meaning assigned to such term in the Pledge Agreement. "Potential Default" means the occurrence of any event which with passage of time, or giving of notice, or both, could become an Event of Default. "Prime Rate" means, at any time, the greater of (a) the variable rate of interest established from time-to-time by Agent as its "prime rate" and set by Agent as a general reference rate of interest charged by Agent, and (b) the Federal Funds Rate plus one-half of one percent (.5%). Borrower acknowledges that Agent may, from time-to-time, extend credit to other borrowers at rates of interest varying from, and having no relationship to, such general reference rate. Each change in the Prime Rate shall become effective without prior notice to Borrower automatically as of the opening of business on the date of such change in the Prime Rate. "Prime Rate Advance" means any Advance hereunder with respect to which the interest rate is calculated by reference to the Prime Rate. "Principal Debt" means, at the time of any determination thereof, the aggregate unpaid principal balance of all Advances. "Pro Rata" and "Pro Rata Part" means, on any date of determination thereof for any Lender (a) at any time prior to the termination of the Commitments, the proportion that such Lender's Commitment bears to the Commitments of all Lenders, and (b) at any time on and after the termination of the Commitments, the proportion that the Principal Debt owed to such Lender bears to the Principal Debt owed to all Lenders. "Regulation D" means Regulation D of the Board of Governors of the Federal Reserve System, from time-to-time in effect, and shall include any successor or other regulation relating to reserve requirements applicable to member banks of the Federal Reserve System. "Required Lenders" means, as of any date, any combination of Lenders who collectively hold fifty-one percent (51%) of (i) the sum of the Commitments, or (ii) if the Commitments have been terminated, then of the Principal Debt owed all Lenders. "Taxes" means, for any Person, taxes, assessments, or other governmental charges or levies imposed upon it, its income, or any of its properties, franchises, or assets. "Termination Date" means the earlier of (a) July 22, 1999, (b) the date Lenders' commitments to fund Advances hereunder are terminated pursuant to Section 7.2, or (c) the date that Lenders' commitments to fund Advances hereunder are reduced to zero pursuant to Section 2.1(b). "Type" means any type of Advance (i.e., Prime Rate Advance or Eurodollar Advance). 1.2 Rules of Construction. When used in this Agreement: (a) "or" is not exclusive; (b) a reference to a law includes any amendment or modification to such law; (c) a reference to a Person includes its permitted successors and permitted assigns; (d) except as provided otherwise, all references to the singular shall include the plural, and vice versa; (e) except as provided in this Agreement, a reference to an agreement, instrument, or document shall include such agreement, instrument, or document, as the same may be amended, modified, or supplemented from time-to-time, in accordance with its terms and as permitted by the Loan Documents; (f) all references to Sections, Exhibits, and Schedules shall be to sections of and exhibits and schedules to this Agreement, unless otherwise indicated; (g) all Exhibits and Schedules to this Agreement shall be incorporated into this Agreement; (h) the words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation;" and (i) except as otherwise provided herein, in the computation of time, from a specified date to a later specified date, the word "from" means "from and including," and words "to" and "until" each mean "to but excluding." SECTION 2 THE REVOLVING CREDIT FACILITY. 2.1 Commitment to Lend. (a) Commitment. Subject to and in reliance upon the terms, conditions, representations, and warranties in the Loan Documents, each Lender severally and not jointly agrees to lend to Borrower such Lender's Pro Rata Part of one or more Advances not to exceed such Lender's Commitment, which, subject to the Loan Documents, Borrower may borrow, repay, and reborrow under this Agreement; provided that each such Advance must occur on a Business Day preceding the Termination Date. (b) Voluntary Termination of Commitments. Without premium or penalty, and upon giving not less than five (5) Business Days prior written and irrevocable notice to Agent, Borrower may terminate in whole or in part the unused portion of the Commitments; provided that: (i) each partial termination shall be in an amount of not less than $500,000.00 or a greater integral multiple thereof; (ii) the amount of the Commitments may not be reduced below the amount of the Obligation at such time; and (iii) each reduction shall be allocated to each Lender's Commitment Pro Rata among all Lenders in accordance with their respective Pro Rata Parts. Promptly after receipt of such notice or termination or reduction, Agent shall notify each Lender of the cancellation or reduction. (c) Collateral Requirements. As a condition to Lenders' obligation to make any Advance hereunder, Borrower must be in compliance with the requirements of Section 6 of the Pledge Agreement related to maintenance of Collateral and with all Margin Requirements. In addition, Borrower shall be obligated to deliver additional Collateral to Agent or prepay the Notes, on the terms set forth in Section 6 of the Pledge Agreement, or as required to satisfy Margin Requirements. (d) Use of Proceeds. Borrower shall use the proceeds of the Loan for the purposes described in the Preamble. Borrower shall not use proceeds of any Advance (i) for any unlawful purpose, or (ii) for the purpose of making any hostile tender offer to acquire shares of stock or other equity interests in another Person. 2.2 Method of Borrowing. (a) Application for Advance. Borrower shall deliver to Agent a Notice of Borrowing at least one (1) Business Day prior to any Prime Rate Advance and at least three (3) Business Days prior to any Eurodollar Advance. Each Notice of Borrowing must be received by Agent no later than 1:00 p.m. (Dallas, Texas time) as of the applicable date. Prior to making a Notice of Borrowing, Borrower may (without specifying whether the Advance shall be a Prime Rate Advance or a Eurodollar Advance) request that Agent provide Borrower with the most recent Eurodollar Rate. Agent shall endeavor to provide such quoted rate to Borrower on the date of such request. (b) Funding. (i) Promptly after receipt of a Notice of Borrowing under Section 2.2(a), Agent shall notify each Lender by telex or telecopy, or other similar form of transmission, of the proposed Advance. Each Lender shall deposit an amount equal to its Pro Rata Part of the Advance requested by Borrower with Agent at its Lending Office, in immediately available funds not later than 11:00 a.m. (Dallas, Texas time) on the date of such proposed Advance. Upon fulfillment of all applicable conditions set forth herein, Agent shall make available to Borrower at Agent's Lending Office, not later than 2:00 p.m. (Dallas, Texas time) on the date of each Advance, the proceeds of each Lender's Pro Rata Part of the Advance actually received by Agent. The failure of any Lender to deposit the amount described above with Agent shall not relieve any other Lender of its obligations hereunder to make its Advance. (ii) Unless Agent shall have been notified by any Lender that such Lender will not make available to Agent such Lender's Pro Rata Part of a proposed Advance, Agent may in its discretion assume that such Lender has made such Advance available to Agent in accordance with this Section and Agent may, if it chooses, in reliance upon such assumption, make such Advance available to Borrower. If and to the extent such Lender shall not so make its Pro Rata Part of the proposed Advance available to Agent, such Lender severally agrees to pay or repay to Agent on demand the amount of such Advance together with interest thereon, for each day from the date such Advance is made available to Borrower until the date such amount is paid or repaid to Agent at the Federal Funds Rate. If such Lender shall repay to Agent such amount, such amounts so repaid shall constitute such Lender's Advance for purposes of this Agreement. (c) Selection of Interest Option Period. (i) Upon making a Notice of Borrowing under Section 2.2(a), Borrower shall advise Agent as to whether the Advance shall be (A) a Eurodollar Advance, in which case Borrower shall specify the applicable Interest Period therefor, or (B) a Prime Rate Advance. (ii) Subject to the dollar limits and denominations of Section 2.1, Borrower may (a) convert a Eurodollar Advance on the last day of the applicable Interest Period to a Prime Rate Advance, (b) convert a Prime Rate Advance on any Business Day to a Eurodollar Advance, and (c) elect a new Interest Period for a Eurodollar Advance, by giving a Notice of Borrowing to Agent no later than 1:00 p.m. (Dallas, Texas time) on the third (3rd) Business Day before the conversion date or the last day of the Interest Period, as the case may be (for conversion to a Eurodollar Advance or election of a new Interest Period), and no later than 1:00 p.m. (Dallas, Texas time) one (1) Business Day before the last day of the Interest Period (for conversion to a Prime Rate Advance). Absent Borrower's Notice of Borrowing, a Eurodollar Advance shall be deemed converted to a Prime Rate Advance effective when the applicable Interest Period expires. (iii) Notwithstanding anything to the contrary contained herein, (A) no more than three (3) Interest Periods shall be in effect at any one time with respect to Eurodollar Advances, and (B) Borrower shall have no right to request a Eurodollar Advance if the Interest Rate applicable thereto under Section 2.4 would exceed the Maximum Rate in effect on the first day of the Interest Period applicable to such Advance. (iv) Each Notice of Borrowing shall be irrevocable and binding on Borrower and, in respect of any Eurodollar Advance specified in such Notice of Borrowing, Borrower shall indemnify Agent and Lenders against any Funding Loss incurred by Agent or Lenders as a result of (A) any failure to fulfill, on or before the date specified for such Advance, the conditions to such Advance set forth herein, or (B) Borrower's requesting that an Advance not be made on the date specified for such Advance in the Notice of Borrowing. A certificate of Agent and each Lender establishing the amount due from Borrower according to the preceding sentence, together with a description in reasonable detail of the manner in which such amount has been calculated, shall be presumed to be correct in the absence of manifest error. 2.3 Notes. The Loan made under Section 2.1 by Lenders shall be evidenced by the Notes, one payable to each Lender in the stated amount of its Commitment, in the aggregate principal amount of $130,000,000.00. 2.4 Interest Rate. (a) All Advances. The unpaid principal of each Prime Rate Advance shall bear interest from the date of Advance to the date of repayment thereof at a rate per annum that shall from day-to-day be equal to the lesser of (i) the Prime Rate in effect from day-to-day, and (ii) the Maximum Rate. The unpaid principal of each Eurodollar Advance shall bear interest from the date of advance to the date of repayment thereof at a rate per annum that shall be equal to the lesser of (i) the Eurodollar Rate plus seven-eighths of one percent (0.875%), and (ii) the Maximum Rate. (b) Default Rate. All past due principal of, and to the extent permitted by applicable law, interest on, the Note, shall bear interest until paid at the lesser of (i) the Default Rate, and (ii) the Maximum Rate. (c) Recapture Rate. If the applicable Contract Rate ever exceeds the Maximum Rate, thereby causing the interest charged under the Notes to be limited to the Maximum Rate, then, to the extent permitted by applicable law, any subsequent reductions in the applicable Contract Rate shall not reduce the rate of interest charged under the Notes below the Maximum Rate, until the total amount of interest accrued on the Notes equals the amount of interest that would have accrued thereon if the applicable Contract Rate had at all times been in effect. (d) General Provisions as to Interest. (i) Interest will be calculated on the basis of actual number of days (including the first day but excluding the last day) elapsed but computed: (A) with respect to Eurodollar Advances, as if each calendar year consisted of 360 days (unless the calculation would result in an interest rate greater than the Maximum Rate, in which event interest will be calculated on the basis of a year of 365 or 366 days, as the case may be); and (B) with respect to Prime Rate Advances, on the basis of a year of 365 or 366 days, as the case may be. All interest rate determinations and calculations by Agent are presumed to be correct in the absence of manifest error. (ii) The provisions of this Agreement relating to calculation of the Prime Rate and the Eurodollar Rate are included only for the purpose of determining the rate of interest or other amounts to be paid under this Agreement that are based upon those rates. Each Lender may fund and maintain its funding of all or any part of each Advance as it selects. 2.5 Special Provisions for Eurodollar Advances; Taxes. (a) Eurodollar Advances. With respect to Eurodollar Advances, the provisions of Exhibit D (regarding inadequacy of pricing, illegality, increased costs, and funding losses) shall apply. (b) Taxes. Subject to Section 2.5(c), any Taxes payable by Agent or any Lender or ruled (by a Governmental Authority) payable by Agent or any Lender in respect of this Agreement or any other Loan Document shall, if permitted by Governmental Requirement, be paid by Borrower, together with interest and penalties, if any (except for Taxes imposed on or measured by the overall net income of Agent or such Lender). Agent or such Lender (through Agent) shall notify Borrower and deliver to Borrower a certificate setting forth in reasonable detail the calculation of the amount of payable Taxes, which certificate is presumed to be correct in the absence of manifest error, and Borrower shall promptly pay that amount to Agent for its account or the account of such Lender, as the case may be. If Agent or such Lender subsequently receives a refund of the Taxes paid to it by Borrower, then the recipient shall promptly pay the refund to Borrower. (c) Foreign Lenders. Each Lender that is organized under the Governmental Requirements of any jurisdiction other than the United States of America or any State thereof (i) represents to Agent and Borrower that (A) no Taxes are required to be withheld by Agent or Borrower with respect to any payments to be made to it in respect of the Obligation, and (B) it has furnished to Agent and Borrower two (2) duly completed copies of U.S. Internal Revenue Service Form 4224, Form 1001, Form W-8, or any other tax form acceptable to the Administrative Agent (wherein it claims entitlement to complete exemption from U.S. federal withholding tax on all interest payments under the Loan Documents), and (ii) covenants to (A) provide Agent and Borrower a new tax form upon the expiration or obsolescence of any previously delivered form according to Governmental Requirement, duly executed and completed by it, and (B) comply from time-to-time with all Governmental Requirements with regard to the withholding tax exemption. If any of the foregoing is not true or the applicable forms are not provided, then Borrower or Agent (without duplication) may deduct and withhold from interest payments under the Loan Documents United States federal income tax at the full rate applicable under the Code. (d) Survival. Without prejudice to the survival of any other obligations of Borrower hereunder, the obligations of Borrower under this Section 2.5 shall survive the termination of this Agreement and/or the payment or assignment of the Notes. 2.6 Payments of the Note. (a) Payment of Interest on the Notes. Interest on each Eurodollar Advance shall be due and payable as it accrues on the last day of its respective Interest Period; provided that if any Interest Period is a period greater than three (3) months, then accrued interest shall also be due and payable on the date three (3) months after the commencement of such Interest Period. Interest on each Prime Rate Advance shall be due and payable as it accrues on the last day of each calendar quarter, and on the Termination Date. (b) Payment of Principal of the Notes. The Notes shall mature, and the principal amount thereof shall be due and payable, on the Termination Date. (c) Optional Prepayments. Upon three (3) Business Days' notice for Eurodollar Advances and one (1) Business Day's notice for Prime Rate Advances, Borrower may prepay the principal of any of the Notes then outstanding, in whole or in part, at any time or from time to time; provided, however, that (i) each prepayment of less than the full outstanding principal balance of a Note shall be in an amount equal to at least $250,000.00, and (ii) if Borrower prepays the principal of any Eurodollar Advance on any date other than the last day of the Interest Period applicable thereto, Borrower shall pay any Funding Loss with respect to such payment. Any optional prepayment of the principal of the Notes shall be applied to the Notes on a pro rata basis based upon the outstanding principal balances of the Notes as of the date of payment. (d) Mandatory Prepayments. Borrower shall be obligated to make mandatory prepayments on the Notes, in accordance with Section 2.1(c) hereof. (e) General Provisions as to Payments. (i) All payments of principal of, and interest on, any Note to or for the account of any Lender shall be made by Borrower to Agent before 12:00 p.m. (Dallas, Texas time), in Federal or other immediately available funds at Agent's Lending Office. If the principal of, or interest on, a Note, or any other amount payable hereunder, becomes due and payable on a day other than a Business Day, then the maturity thereof shall be extended to the next succeeding Business Day. Each payment received by Agent hereunder for the account of a Lender shall be promptly distributed by Agent to such Lender. Except as otherwise provided, all payments made on any Note shall be credited, to the extent of the amount thereof, in the following manner: (A) first, against the amount of interest accrued and unpaid on such Note as of the date of such payment; (B) second, against all principal (if any) due and owing on such Note as of the date of such payment; (C) third, as a prepayment of outstanding Prime Rate Advances under such Note; and (D) fourth, as a prepayment of outstanding Eurodollar Advances under such Note. Subject to the foregoing, so long as no Potential Default or Event of Default exists, payments and prepayments of principal of any Note shall be applied to such outstanding Prime Rate Advances and Eurodollar Advances under such Note as Borrower shall select; provided, however, that Borrower shall select Prime Rate Advances and Eurodollar Advances to be repaid in a manner designed to minimize the Funding Loss, if any, resulting from such payments; and provided further that, if Borrower shall fail to select the Prime Rate Advance or Eurodollar Advance to which such payments are to be applied, or if a Potential Default or Event of Default exists at the time of such payment, then Agent shall be entitled to apply the payment to such Prime Rate Advances and Eurodollar Advances in the manner it shall deem appropriate. (ii) Each payment received by Agent hereunder for the account of Lenders or any of them on the Notes shall be distributed to each Lender entitled to share in such payment, Pro Rata in proportion to the Pro Rata Parts of each Lender (less any taxes, levies, imposts, deductions, charges or withholdings excluded from the definition of Taxes). Unless Agent shall have received notice from Borrower prior to the date on which any payment is due to Lenders hereunder that Borrower will not make such payment in full, Agent may assume that Borrower has made such payment in full to Agent on such date and Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent Borrower shall not have so made such payment in full to Agent, each Lender shall repay to Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to Agent, at the Federal Funds Rate. 2.7 Fees. Borrower shall pay to Agent, for the ratable benefit of Lenders, in accordance with their respective Pro Rata Parts, a commitment fee equal to $260,000.00 (i.e., 20 basis points on the Commitment). Borrower acknowledges that such fee is a bona fide commitment fee and is intended as reasonable compensation to Lenders for committing to make funds available to Borrower as described herein, and for no other purposes. 2.8 Termination of Commitment. The Commitments shall terminate on the Termination Date, and any Advances then outstanding (together with accrued interest thereon) shall be due and payable on such date. 2.9 Sharing of Payments, Etc. If any Lender obtains any amount (whether voluntary, involuntary, or otherwise, including as a result of exercising any rights under Section 2.10) that exceeds the part of that payment that such Lender is entitled to receive under the Loan Documents, then such Lender shall purchase from the other Lenders participations that will cause the purchasing Lender to share the excess amount ratably with each other Lender. If all or any portion of any excess amount is subsequently recovered from the purchasing Lender, then the purchase shall be rescinded and the purchase price restored to the extent of the recovery. Borrower agrees that any Lender purchasing a participation from another Lender under this Section, may, to the fullest extent permitted by applicable law, exercise all of its rights of payment with respect to that participation as fully as if such lender were the direct creditor of Borrower in the amount of that participation. 2.10 Set-off. If an Event of Default exists, each Lender is entitled, but not obligated, to exercise (for the benefit of all Lenders in accordance with Section 2.10) the right of off-set and banker's Lien against each and every account and other property, or any interest therein, that Borrower may now or hereafter have with, or which is now or hereafter in the possession of, such Lender to the extent of the amount of the Obligation owed to it. 2.11 Capital Adequacy. If a Lender shall have reasonably determined that, after the date hereof, either (i) the adoption of any applicable law, rule, regulation or guideline 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 (ii) compliance by such Lender (or any lending office of such Lender) 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 such Lender's capital as a consequence of its or Borrower's obligations hereunder to a level below that which such Lender could have achieved but for such adoption, change or compliance by an amount reasonably deemed by such Lender to be material, then from time to time, within ten (10) days after demand by such Lender, Borrower shall pay to such Lender such additional amount as will adequately compensate such Lender for such reduction. A Lender will notify Borrower of any event of which it has actual knowledge, occurring after the date thereof, which will entitle such Lender to compensation pursuant to this Section 2.12. No failure by a Lender to immediately demand payment of any additional amounts payable hereunder shall constitute a waiver of such Lender's right to demand payment of such amounts at any subsequent time. SECTION 3 COLLATERAL. 3.1 Liens and Security Interests. To secure the performance by Borrower of the payment and performance of the Obligation, pursuant to the Collateral Documents, Borrower grants to Lenders a perfected, first priority, security interest and lien in the Pledged Shares and other Collateral, including without limitation the Initial Collateral. SECTION 4 CONDITIONS PRECEDENT. 4.1. Initial Advance. The obligation of each Lender to make its initial Advance hereunder is subject to the conditions precedent that, on or before the date of such Advance, (a) Borrower shall have paid to Agent (i) all fees to be received pursuant to this Agreement or any other Loan Document and (ii) an amount equal to the estimated costs and out-of-pocket expenses of Agent's counsel incurred in connection with the preparation, execution and delivery of the Loan Documents and the consummation of the transactions contemplated thereby, and (b) Agent shall have received duly executed copies of each of the documents listed on Exhibit E, each dated as of the date of such Advance, and each in form and substance satisfactory to Agent. 4.2. All Advances. The obligation of each Lender to make any Advance under this Agreement (including the initial Advance but excluding any Advance which does not increase the outstanding Principal Debt) shall be subject to the conditions precedent that, as of the date of such Advance and after giving effect thereto: (a) there exists no Potential Default or Event of Default; (b) no change that would cause a Material Adverse Effect has occurred since the date of the financial statements referenced in Section 5.7; (c) Agent shall have received from Borrower a Notice of Borrowing dated as of the date of such Advance and all of the statements contained in such Notice of Borrowing shall be true and correct; (d) the representations and warranties contained in each of the Loan Documents shall be true in all respects as though made on the date of such Advance; (e) the Maximum Rate exceeds the Contract Rate; and (f) Borrower has satisfied the condition precedent contained in Section 2.1(c). SECTION 5 REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and warrants to Lenders as follows: 5.1 Taxes. All tax returns required to be filed by Borrower in any jurisdiction have been filed and all taxes, assessments, fees, and other governmental charges upon Borrower, or upon any of his properties, or income, have been paid, except for taxes being contested in good faith by appropriate proceedings diligently projected and as to which adequate reserves have been established. Borrower has no knowledge of any proposed tax assessment against Borrower that will have, or is reasonably likely to have, a Material Adverse Effect. 5.2 Pledged Shares. The Pledged Shares constituting the Initial Collateral, as described on Exhibit F, were acquired by Borrower, and held by Borrower, for a period of at least two (2) years prior to the date hereof, for purposes of determining the holding period of such Pledged Shares under Rule 144 of the General Regulations under the Securities Act of 1933 promulgated by the Securities and Exchange Commission, and Borrower has borne the full economic risk of such Pledged Shares since their respective dates of acquisition. Borrower is the lawful owner and holder of such Pledged Shares, free and clear of all Liens, except for security interests and liens granted to Lenders. Under the laws of the State of Colorado, and other applicable laws, Borrower has full right, power, and authority to pledge such Pledged Shares to Lenders, and such pledge does not violate or contravene any law, agreement, or order to which Borrower is subject. 5.3 Authority and Compliance. Borrower has full power and authority to execute and deliver the Loan Documents and to incur and perform the obligations provided for therein. No consent or approval of any public authority or other third party is required as a condition to the validity of any Loan Document, and Borrower is in compliance with all laws and regulatory requirements to which it is subject. 5.4 Binding Agreement. This Agreement and the other Loan Documents executed by Borrower constitute valid and legally binding obligations of Borrower, enforceable in accordance with their terms. 5.5 Litigation. There is no proceeding against Borrower pending or, to the knowledge of Borrower, threatened by or before any court or Governmental Authority in which Borrower is a party in its individual capacity except as disclosed on Exhibit G attached hereto. There are no outstanding judgments against Borrower. 5.6 No Conflicting Agreements. There is no provision of any existing agreement, mortgage, indenture or contract binding on Borrower or affecting Borrower's property, which would conflict with or in any way prevent the execution, delivery or carrying out of the terms of this Agreement and the other Loan Documents. 5.7 Financial Statements. The personal financial statements of Borrower heretofore delivered to Lenders, and dated July 18, 1997, properly reflect Borrower's financial position as of the date thereof, and there has been no material adverse change in Borrower's financial condition since the date of the financial statements. Borrower has good title to all assets reflected on such financial statements, except as disclosed in such financial statements. Borrower has no material indebtedness or liabilities, including guaranties and other contingent liabilities, which are not reflected in such financial statements. To the best of Borrower's knowledge, all factual information furnished by Borrower to Lenders in connection with this Agreement is and will be accurate and complete on the date as of which such information is delivered to Lenders and is not incomplete by the omission of any material fact necessary to make such information not misleading. 5.8 Use of Proceeds; Margin Stock. The proceeds of the Loan will be used by Borrower solely for the purposes specified in Section 2.1(d). If requested by Agent or a Lender, Borrower will from time to time furnish to Agent or Lenders a statement in conformity with the requirements of Federal Reserve Form U-1 referred to in Regulation U of the Board of Governors of the Federal Reserve System. No Advance will be used for any purpose which violates, or is inconsistent with, the Margin Requirements. 5.9 Representations and Warranties. Each Notice of Borrowing (other than a Notice of Borrowing which requests an Advance that would not increase the Principal Debt) shall constitute, without the necessity of specifically containing a written statement, a representation and warranty by Borrower that no Potential Default or Event of Default exists, and that all representations and warranties contained in this Section 5 or in any other Loan Document are true and correct on and as of the date the requested Advance is to be made. 5.10 Survival of Representations and Warranties. All representations and warranties by Borrower herein shall survive delivery of the Notes and the making of the Loan, and any investigation at any time made by or on behalf of Agent or any Lender shall not diminish Agent's or Lenders' right to rely thereon. SECTION 6. COVENANTS. Until full payment and performance of all obligations of Borrower under the Loan Documents, Borrower will: 6.1. Financial Statements. Furnish to Agent, or cause to be furnished to Agent: (a) Annual financial statements of Borrower within thirty (30) days after the anniversary date of the most recent financial statement provided to Agent, in form and substance satisfactory to Agent, and including without limitation a listing of all assets and liabilities, a listing of all sources of income, a listing of the uses of income, the amount and sources of contingent liabilities, and identification of joint or community owners as to listed assets. (b) A Compliance Certificate for Borrower, concurrently with and dated as of the date of delivery of each financial statement as required by this Section 6.1, stating: "This financial statement is being submitted to NationsBank of Texas, N.A., Agent, for the purpose of obtaining credit and constitutes the true and correct statement of my/our financial condition." The certification must be executed and dated by Borrower. (c) Promptly following Agent's reasonable request, which request (whether one or more) may be made from time to time, such additional information, reports and statements respecting the financial condition of Borrower. 6.2. Compliance. Maintain Borrower's compliance with all Governmental Requirements applicable to Borrower or to any of Borrower's property, business operations and transactions. 6.3. Adverse Conditions or Events. Promptly advise Agent in writing of (i) any condition, event or act which comes to Borrower's attention that would or might materially adversely affect Borrower's financial condition, the Collateral, or Lenders' rights under the Loan Documents; (ii) any litigation filed by or against Borrower which could reasonably be expected to have a Material Adverse Effect; (iii) any default under the Loan Documents; and (iv) any default under any agreement, mortgage, indenture or contract binding on Borrower which could reasonably be expected to have a Material Adverse Effect, or any such default which affects the Collateral. 6.4. Taxes and Other Obligations. File on a timely basis all tax returns, and pay all of Borrower's taxes and other obligations as the same become due and payable, except to the extent being contested in good faith by appropriate proceedings. 6.5. Transfer of Assets. Not sell, lease, assign, transfer or otherwise dispose of assets, during the term of this Agreement, having an aggregate value in excess of $300,000,000. 6.6. Liens. Not grant, suffer or permit any Lien on any Collateral, except in favor of Lenders; or take any action which would adversely affect or impair Lenders' Liens in Collateral or right to dispose of Collateral following an Event of Default; or fail to promptly pay when due all lawful claims, whether for labor, materials or otherwise. 6.7. Other Covenants. Not violate or fail to comply with any covenants or agreements regarding other indebtedness which could reasonably be expected to have a Material Adverse Effect. 6.8 Indemnity by Borrower. Indemnify, defend and hold harmless Agent, each Lender and its directors, officers, agents, attorneys, and employees (individually, an "Indemnitee" and collectively, the "Indemnitees") from and against any and all loss, liability, damage, judgment, claim, and expense (including attorneys' fees and amounts paid in settlement) to which the Indemnitees may become subject arising out of this Agreement and the other Loan Documents, the business of Borrower, or the use of proceeds of the Loan, other than those which arise by reason of the gross negligence or willful misconduct of Lenders. This indemnification shall survive the satisfaction and payment of the Obligation and termination of this Agreement. SECTION 7. EVENTS OF DEFAULT. 7.1. Events of Default. An "Event of Default" shall exist if any one or more of the following events (herein collectively called "Events of Default") shall occur and be continuing: (a) Borrower shall fail to pay when due the Obligation or any part thereof, and solely with respect to payments of interest on the Notes, such failure or refusal continues for three (3) Business Days; (b) any representation or warranty made under this Agreement, or any of the other Loan Documents, shall prove to be untrue or inaccurate in any material respect as of the date on which such representation or warranty is made; (c) default shall occur in the performance of any of the covenants or agreements of Borrower contained herein (other than Section 7.1(a) above), or in any of the other Loan Documents, which default is not remedied within ten (10) days after written notice thereof to Borrower from Lender; provided, that such ten (10) day grace period shall not apply to covenants and agreements contained in Article 2, or Sections 6.3, 6.5 or 6.6 of this Agreement, or in the Pledge Agreement, or in the Rule 144 Rider attached to the Pledge Agreement; (d) default shall occur in the payment of the unpaid balance of, or any installment of principal or interest of, indebtedness of Borrower (other than the Obligation) having an aggregate principal balance exceeding the sum of $1,000,000 or default shall occur in respect of any note or credit agreement relating to any such indebtedness and such default shall continue for more than the period of grace, if any, specified therein the effect of which is to cause, or to permit any holder of such indebtedness to cause (whether or not such holder elects to cause) any of that indebtedness to become due before its stated maturity; (e) any of the Loan Documents shall cease to be legal, valid and binding agreements enforceable against the Person executing the same in accordance with its terms, shall be terminated, become or be declared ineffective or inoperative or cease to provide the respective liens, security interests, rights, titles, interests, remedies, powers or privileges intended to be provided thereby; (f) Borrower shall (i) apply for or consent to the appointment of a receiver, trustee, custodian, intervenor or liquidator of itself or of all or a substantial part of such Borrower's assets, (ii) file a voluntary petition in bankruptcy, admit in writing that Borrower is unable to pay such Borrower's debts as they become due or generally not pay such Borrower's debts as they become due, (iii) make a general assignment for the benefit of creditors, (iv) file a petition or answer seeking reorganization of an arrangement with creditors or to take advantage of any bankruptcy or insolvency laws, (v) file an answer admitting the material allegations of, or consent to, or default in answering, a petition filed against Borrower in any bankruptcy, reorganization or insolvency proceeding, or (vi) take any action for the purpose of effecting any of the foregoing; (g) An involuntary proceeding shall be commenced against Borrower seeking bankruptcy or reorganization of Borrower or the appointment of a receiver, custodian, trustee, liquidator or other similar official of Borrower, or all or substantially all of Borrower's assets, and such proceeding shall not have been dismissed within sixty (60) days of the filing thereof; or an order, order for relief, judgment or decree shall be entered by any court of competent jurisdiction or other competent authority approving a petition or complaint seeking reorganization of Borrower, or appointing a receiver, custodian, trustee, liquidator or other similar official of Borrower, or of all or substantially all of Borrower's assets; (h) any final judgment(s) for the payment of money in excess of the sum of $1,000,000 in the aggregate shall be rendered against Borrower, and such judgment(s) shall not be satisfied or discharged at least ten (10) days prior to the date on which any of Borrower's assets could be lawfully sold to satisfy such judgment; or (i) Borrower shall die. 7.2 Remedies Upon Event of Default. If any Event of Default shall occur, Agent may, at the request of the Required Lenders, without notice, exercise any one or more of the following rights and remedies, and any other remedies provided in any of the Loan Documents, as Agent, at the request of Lenders, in their discretion may deem necessary or appropriate: (a) terminate the commitment to lend hereunder, (b) declare the Obligation, or any part thereof, to be forthwith due and payable, whereupon the same shall forthwith become due and payable without presentment, demand, protest, notice of default, notice of acceleration or of intention to accelerate, or other notice of any kind, all of which Borrower hereby expressly waives, anything contained herein or in the Notes to the contrary notwithstanding, (c) reduce any claim to judgment, or (d) without notice of default or demand, pursue and enforce any of Agent's or Lenders' rights and remedies under the Loan Documents, or otherwise provided under or pursuant to any applicable law or agreement; provided, however, that if any Event of Default specified in Sections 7.1(f) or (g) shall occur, the Obligation shall thereupon become due and payable concurrently therewith, and Lenders' obligation to lend shall immediately terminate hereunder, without any further action by Agent or Lenders and without presentment, demand, protest, notice of default, notice of acceleration or of intention to accelerate, or other notice of any kind, all of which Borrower hereby expressly waives. 7.3 Performance by Lender. Should Borrower fail to perform any covenant, duty, or agreement contained in any of the Loan Documents, Agent may perform or attempt to perform such covenant, duty or agreement on behalf of Borrower. In such event, Borrower shall, at the request of Agent, promptly pay any amount expended by Agent in such performance or attempted performance to Agent at its principal office in Dallas, Texas, together with interest thereon at the Maximum Rate from the date of such expenditure until paid. Notwithstanding the foregoing, it is expressly understood that Agent shall not assume any liability or responsibility for the performance of any duties of Borrower hereunder or under any of the Loan Documents, and none of the covenants or other provisions contained in this Agreement shall, or shall be deemed to, give Agent the right or power to exercise control over the management and affairs of Borrower. SECTION 8. THE AGENT. 8.1 The Agent. (a) Appointment. Each Lender appoints Agent (including, without limitation, each successor Agent in accordance with this Section 8) as its nominee and agent to act in its name and on its behalf (and Agent and each such successor accepts that appointment): (i) to act as its nominee and on its behalf in and under all Loan Documents; (ii) to arrange the means whereby its funds are to be made available to Borrower under the Loan Documents; (iii) to take any action that it properly requests under the Loan Documents (subject to the concurrence of other Lenders as may be required under the Loan Documents); (iv) to receive all documents and items to be furnished to it under the Loan Documents; (v) to be the secured party, mortgagee, beneficiary, recipient, and similar party in respect of any Collateral, for the benefit of Lenders; (vi) to promptly distribute to it all financial statements, compliance certificates, notices received hereunder, and other items specifically required to be delivered to it hereunder, and, upon request, such other material information, requests, documents, and items received under the Loan Documents; (vii) to promptly distribute to it its ratable part of each payment or prepayment (whether voluntary, as proceeds of Collateral upon or after foreclosure, as proceeds of insurance thereon, or otherwise) in accordance with the terms of the Loan Documents; and (viii) to deliver to the appropriate Persons requests, demands, approvals, and consents received from it. However, Agent may not be required to take any action that exposes it to personal liability or that is contrary to any Loan Document or applicable Governmental Requirement. (b) Successor. Agent may assign all of its rights and obligations as Agent under the Loan Documents to any of its Affiliates, which Affiliate shall then be the successor Agent under the Loan Documents. Agent may also voluntarily resign by notice to Borrower and Lenders, and shall resign upon the request of the Required Lenders for cause (i.e., Agent is continuing to fail to perform its responsibilities as Agent under the Loan Documents). If the initial or any successor Agent ever ceases to be a party to this Agreement or if the initial or any successor Agent ever resigns (whether voluntarily or at the request of the Required Lenders), then the Required Lenders shall (which, if no Potential Default or Event of Default exists, is subject to Borrower's approval that may not be unreasonably withheld) appoint the successor Agent from among Lenders (other than the resigning Agent). If the Required Lenders fail to appoint a successor Agent within thirty (30) days after the resigning Agent has given notice of resignation or the Required Lenders have removed the resigning Agent, then the resigning Agent may, on behalf of Lenders, appoint a successor Agent (which, if no Potential Default or Event of Default exists, is subject to Borrower's approval that may not be unreasonably withheld), which must be a commercial bank having a combined capital and surplus of at least $1,000,000,000.00 (as shown on its most recently published statement of condition) and whose debt obligations (or whose parent's debt obligations) are rated not less than Baa1 by Moody's or BBB+ by S & P. Upon its acceptance of appointment as successor Agent, the successor Agent succeeds to and becomes vested with all of the rights of the prior Agent, and the prior Agent is discharged from its duties and obligations of the Agent under the Loan Documents, and each Lender shall execute the documents that any Lender, the resigning or removed Agent, or the successor Agent reasonably request to reflect the change. After any Agent's resignation or removal as Agent under the Loan Documents, the provisions of this Section inure to its benefit as to any actions taken or not taken by it while it was the Agent under the Loan Documents. (c) Rights as Lender. Agent, in its capacity as a Lender, has the same rights under the Loan Documents as any other Lender and may exercise those rights as if it were not acting as an Agent. The term "Lender," unless the context otherwise indicates, includes the Agent. Agent's resignation or removal does not impair or otherwise affect any rights that it has or may have in its capacity as an individual Lender. Each Lender and Borrower agree Agent is not a fiduciary for Lenders or for Borrower but is simply acting in the capacity described in this Agreement to alleviate administrative burdens for Borrower and Lenders, that Agent has no duties or responsibilities to Lenders or Borrower except those expressly set forth in the Loan Documents, and that Agent in its capacity as a Lender has the same rights as any other Lender. (d) Other Activities. Agent or any Lender may now or in the future be engaged in one or more loan, letter of credit, leasing, or other financing transactions with Borrower, act as trustee or depositary for Borrower, or otherwise be engaged in other transactions with Borrower (collectively, the "other activities") not the subject of the Loan Documents. Without limiting the rights of Lenders specifically set forth in the Loan Documents, neither Agent nor any Lender is responsible to account to the other Lenders for those other activities, and no Lender shall have any interest in any other Lender's activities, any present or future guaranties by or for the account of Borrower that are not contemplated by or included in the Loan Documents, any present or future offset exercised by Agent or any Lender in respect of those other activities, any present or future property taken as security for any of those other activities, or any property now or hereafter in Agent's or any other Lender's possession or control that may be or become security for the obligations of Borrower arising under the Loan Documents by reason of the general description of indebtedness secured or of property contained in any other agreements, documents, or instruments related to any of those other activities (but, if any payments in respect of those guaranties or that property or the proceeds thereof is applied by Agent or any Lender to reduce the Obligation, then each Lender is entitled to share ratably in the application as provided in the Loan Documents). (e) Additional Pledged Shares. The Pledge Agreement contemplates that, ------------------------- under certain circumstances, Borrower may provide additional, or substituted, Collateral as security for the Obligation, provided that such additional or substituted Collateral is satisfactory to Agent, in its sole discretion. Without the prior written or oral approval of Lenders, Agent shall not approve as satisfactory additional or substitute Collateral, unless such Collateral consists of shares of common stock of the same series and issue as the Collateral. 8.2 Expenses. Should Agent commence any proceeding or in any way seek to enforce its rights under the Loan Documents, irrespective of whether as a result thereof Agent shall acquire title to any Collateral, either through foreclosure, deed in lieu of foreclosure, or otherwise, each Lender, upon demand therefor from time-to-time, shall contribute its share (based on its Pro Rata Part) of the reasonable costs and/or expenses of any such enforcement or acquisition, including, but not limited to, fees of receivers or trustees, court costs, title company charges, filing and recording fees, appraisers' fees and fees and expenses of attorneys to the extent not otherwise reimbursed by Borrower. Without limiting the generality of the foregoing, each Lender shall contribute its share (based on its Pro Rata Part) of all reasonable costs and expenses incurred by Agent (including reasonable attorneys' fees and expenses) if Agent employs counsel for advice or other representation (whether or not any suit has been or shall be filed) with respect to any Collateral or any part thereof, or any of the Loan Documents, or the attempt to enforce any Lien in any of the Collateral, or to enforce any rights of Agent or any of Borrower's or any other Company's obligations under any of the Loan Documents, but not with respect to any dispute between Agent and any other Lender(s). Any loss of principal and interest resulting from any Potential Default or Event of Default shall be shared by Lenders in accordance with their respective Pro Rata Parts. It is understood and agreed that if Agent determines that it is necessary to engage counsel for Lenders from and after the occurrence of a Potential Default or Default, then said counsel shall be selected by Agent and written notice of the same shall be delivered to Lenders. 8.3 Proportionate Absorption of Losses. Except as otherwise provided in the Loan Documents, nothing in the Loan Documents gives any Lender any advantage over any other Lender insofar as the Obligation is concerned or relieves any Lender from ratably absorbing any losses sustained with respect to the Obligation (except to the extent unilateral actions or inactions by any Lender result in Borrower or any other obligor on the Obligation having any credit, allowance, setoff, defense, or counterclaim solely with respect to all or any part of that Lender's Pro Rata Part of the Obligation). 8.4 Delegation of Duties; Reliance. Lenders may perform any of their duties or exercise any of their rights under the Loan Documents by or through Agent, and Lenders and Agent may perform any of their duties or exercise any of their rights under the Loan Documents by or through their respective officers, agents, or other representatives. Agent, Lenders, and their respective officers, agents, or other representatives (a) are entitled to rely upon (and shall be protected in relying upon) any written or oral statement believed by it or them to be genuine and correct and to have been signed or made by the proper Person and, with respect to legal matters, upon opinion of counsel selected by Agent or that Lender (but nothing in this clause (a) permits Agent to rely on (i) oral statements if a writing is required by this Agreement or (ii) any other writing if a specific writing is required by this Agreement), (b) are entitled to deem and treat each Lender as the owner and holder of its portion of the Obligation for all purposes until, written notice of the assignment or transfer is given to and received by Agent (and any request, authorization, consent, or approval of any Lender is conclusive and binding on each subsequent holder, assignee, or transferee of or participant in that Lender's portion of the Obligation until that notice is given and received), (c) are not deemed to have notice of the occurrence of a Potential Default or Event of Default unless a responsible officer of Agent, who handles matters associated with the Loan Documents and transactions thereunder, has actual knowledge or Agent has been notified by a Lender or Borrower, and (d) are entitled to consult with legal counsel (including counsel for Borrower), independent accountants, and other experts selected by Agent and are not liable for any action taken or not taken in good faith by it in accordance with the advice of counsel, accountants, or experts. 8.5 Limitation of Agent's Liability'. (a) Exculpation. Neither Agent nor any of its Affiliates or officers, agents or other representatives will be liable for any action taken or omitted to be taken by it or them under the Loan Documents in good faith and believed by it or them to be within the discretion or power conferred upon it or them by the Loan Documents or be responsible for the consequences of any error of judgment (except for fraud, gross negligence, or willful misconduct), and neither Agent nor any of its Affiliates or officers, agents, or other representatives has a fiduciary relationship with any Lender by virtue of the Loan Documents (but nothing in this Agreement negates the obligation of Agent to account for funds received by it for the account of any Lender). (b) Indemnity. Unless indemnified to its satisfaction against loss, cost, liability, and expense, Agent may not be compelled to do any act under the Loan Documents or to take any action toward the execution or enforcement of the powers thereby created or to prosecute or defend any suit in respect of the Loan Documents. If Agent requests instructions from Lenders, or the Required Lenders, as the case may be, with respect to any act or action in connection with any Loan Document, then Agent is entitled to refrain (without incurring any liability to any Person by so refraining) from that act or action unless and until it has received instructions. In no event, however, may Agent or any of its officers, agents, or other representatives be required to take any action that it or they determine could incur for it or them criminal or onerous civil liability. Without limiting the generality of the foregoing, no Lender has any right of action against Agent as a result of Agent's acting or refraining from acting under this Agreement in accordance with instructions of the Required Lenders. (c) Reliance. Agent is not responsible to any Lender or any participant for, and each Lender represents and warrants that it has not relied upon any Agent in respect of, (i) the creditworthiness of Borrower and the risks involved to that Lender, (ii) the effectiveness, enforceability, genuineness, validity, or the due execution of any Loan Document (except by Agent), (iii) any representation, warranty, document, certificate, report, or statement made therein (except by Agent) or furnished thereunder or in connection therewith, (iv) the adequacy of any Collateral now or hereafter securing the Obligation or the existence, priority, or perfection of any Lien now or hereafter granted or purported to be granted on the Collateral under any Loan Document, or (v) observation of or compliance with any of the terms, covenants, or conditions of any Loan Document on the part of Borrower. EACH LENDER AGREES TO INDEMNIFY AGENT AND ITS OFFICERS, AGENTS, AND OTHER REPRESENTATIVES AND HOLD THEM HARMLESS FROM AND AGAINST (BUT LIMITED TO SUCH LENDER'S PRO RATA PART) ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, REASONABLE EXPENSES, AND REASONABLE DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER THAT MAY BE IMPOSED ON, ASSERTED AGAINST, OR INCURRED BY THEM IN ANY WAY RELATING TO OR ARISING OUT OF THE LOAN DOCUMENTS OR ANY ACTION TAKEN OR OMITTED BY THEM UNDER THE LOAN DOCUMENTS IF SUCH AGENT AND ITS OFFICERS, AGENTS OR OTHER REPRESENTATIVES ARE NOT REIMBURSED FOR SUCH AMOUNTS BY BORROWER. ALTHOUGH AGENT AND ITS OFFICERS, AGENTS, AND OTHER REPRESENTATIVES HAVE THE RIGHT TO BE INDEMNIFIED UNDER THIS AGREEMENT FOR ITS OR THEIR OWN ORDINARY NEGLIGENCE, AGENT AND ITS OFFICERS, AGENTS, AND OTHER REPRESENTATIVES DO NOT HAVE THE RIGHT TO BE INDEMNIFIED UNDER THIS AGREEMENT FOR ITS OR THEIR OWN FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT. 8.6 Default. While an Event of Default exists, Lenders agree to promptly confer in order that the Required Lenders or Lenders, as the case may be, may agree upon a course of action for the enforcement of the rights of Lenders. Agent is entitled to act or refrain from taking any action (without incurring any liability to any Person for so acting or refraining) unless and until it has received instructions from Required Lenders or all Lenders, as the case may be. In actions with respect to any of Borrower's property, Agent is acting for the ratable benefit of each Lender. 8.7 Collateral Matters. (a) Each Lender authorizes and directs Agent to enter into the Loan Documents and agrees that any action taken by Agent concerning any Collateral (with the consent or at the request of the Required Lenders) in accordance with any Loan Document, that Agent's exercise (with the consent or at the request of the Required Lenders) of powers concerning the Collateral in any Loan Document, and that all other reasonably incidental powers are authorized and binding upon all Lenders. (b) Agent is authorized on behalf of all Lenders, without the necessity of any notice to or further consent from any Lender, from time-to-time before a Potential Default or Event of Default, to take any action with respect to any Collateral or Loan Documents related to Collateral that may be necessary to perfect and maintain Agent's Liens in the Collateral. (c) Except to use the same standard of care that it ordinarily uses for collateral for its sole benefit, Agent has no obligation whatsoever to any Lender or to any other Person to assure that the Collateral exists or is owned by Borrower or is cared for, protected, or insured or has been encumbered or that Agent's Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority. (d) Agent shall exercise the same care and prudent judgment with respect to the Collateral and the Loan Documents as it normally and customarily exercises in respect of similar collateral and security documents. 8.8 Limitation of Liability. No Lender or any Participant will incur any liability to any other Lender or Participant except for acts or omissions in bad faith, and neither Agent nor any Lender or Participant will incur any liability to any other Person for any act or omission of any other Lender or any Participant. 8.9. Relationship of Lenders. The Loan Documents do not create a partnership or joint venture among Agent and Lenders or among Lenders. 8.10. Benefits of Agreement. None of the provisions of this Section inure to the benefit of Borrower or any other Person except Agent and Lenders. Therefore, neither Borrower nor any other Person is responsible or liable for, entitled to rely upon, or entitled to raise as a defense -- in any manner whatsoever -- the failure of Agent or any Lender to comply with these provisions. SECTION 9. MISCELLANEOUS. 9.1 Accounting Reports. All financial reports or projections, furnished by any Person to Agent and Lenders pursuant to this Agreement shall be prepared in such form and such detail as shall be satisfactory to Agent, shall be prepared on the same basis as those prepared by such Person in prior years. 9.2 Waiver. No failure to exercise, and no delay in exercising, on the part of Agent or Lenders, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. The rights of Agent and Lenders under the Loan Documents shall be in addition to all other rights provided by law. No modification or waiver of any provision of any Loan Document, nor consent to departure therefrom, shall be effective unless in writing, and no such consent or waiver shall extend beyond the particular case and purpose involved. No notice or demand given in any case shall constitute a waiver of the right to take other action in the same, similar or other instances without such notice or demand. 9.3 Payment of Expenses. Borrower hereby agrees to pay on demand: (a) all reasonable costs and expenses of Agent in connection with the preparation, negotiation, execution, and delivery of this Agreement and the other Loan Documents including, without limitation, the reasonable legal fees and expenses of legal counsel for Agent; (b) all reasonable costs and expenses of Agent in connection with any and all amendments, modifications, renewals, extension, and supplements of any of the Loan Documents; (c) all reasonable costs and expenses of Agent and Lenders in connection with any Event of Default and the enforcement of this Agreement or any other Loan Document, including, without limitation, the fees and expenses of legal counsel for Agent and Lenders; (d) all transfer, stamp, documentary, or other similar taxes, assessments, or charges levied by any Governmental Authority in respect of this Agreement or any of the other Loan Documents; (e) all costs, expenses, assessments, and other charges incurred in connection with any filing, registration, recording, or perfection of any security interest or Lien contemplated by this Agreement or any other Loan Document; and (f) all other reasonable costs and expenses incurred by Agent in connection with this Agreement or any other Loan Document. 9.4 Notices. Any communications required or permitted to be given by any of the Loan Documents must be (a) in writing and personally delivered or mailed by prepaid certified or registered mail or by reputable overnight courier, or (b) made by facsimile transmission delivered or transmitted, to the party to whom such notice of communication is directed, to the address of such party shown opposite its name on the signature pages hereof. Any such communication shall be deemed to have been given (whether actually received or not) on the day it is personally delivered or, if transmitted by facsimile transmission, on the day that such communication is transmitted as aforesaid subject to telephone confirmation of receipt; provided, however, that any notice received by Agent after 1:00 p.m. Dallas, Texas time on any day from Borrower pursuant to Section 2.2 or 2.3 (with respect to a Notice of Borrowing) shall be deemed for the purposes of such section to have been given by Borrower on the next succeeding day, or if mailed, on the third day after it is marked as aforesaid. Any party may change its address for purposes of this Agreement by giving notice of such change to the other parties pursuant to this Section 9.4. 9.5 Governing Law. This Agreement has been prepared, is being executed and delivered, and is intended to be performed in the State of Texas, and the substantive laws of such state and the applicable federal laws of the United States of America shall govern the validity, construction, enforcement, and interpretation of this Agreement and all of the other Loan Documents. 9.6 Choice of Forum; Consent to Service of Process and Jurisdiction. Any suit, action, or proceeding against Borrower with respect to this Agreement, the Notes, or any judgment entered by any court in respect thereof, may be brought in the courts of the State of Texas, County of Dallas, or in the United States courts located in the State of Texas, as Agent and Lenders in their sole discretion may elect and Borrower hereby irrevocably submits to the nonexclusive jurisdiction of such courts for the purpose of any such suit, action, or proceeding. 9.7 Invalid Provisions. Any provision of any Loan Document held by a court of competent jurisdiction to be illegal, invalid, or unenforceable shall not invalidate the remaining provisions of such Loan Document, which shall remain in full force, and the effect thereof shall be confined to the provision held invalid or illegal. 9.8 Maximum Interest Rate. Regardless of any provision contained in any of the Loan Documents, neither Agent nor any Lender shall ever be entitled to receive, collect, or apply as interest on the Notes any amount in excess of interest calculated at the Maximum Rate, and, in the event that any Agent or any Lender ever receives, collects, or applies as interest any such excess, the amount which would be excessive interest shall be deemed to be a partial prepayment of principal, and treated hereunder as such; and, if the principal amount of the Obligation is paid in full, any remaining excess shall forthwith be paid to Borrower. In determining whether or not the interest paid or payable under any specific contingency exceeds interest calculated at the Maximum Rate, Borrower and Lenders shall, to the maximum extent permitted under applicable law, (a) characterize any nonprincipal payment as an expense, fee, or premium, rather than as interest; (b) exclude voluntary prepayments and the effects thereof; and (c) amortize, prorate, allocate, and spread, in equal parts, the total amount of interest throughout the entire contemplated term of the Note; provided that, if the Notes are paid and performed in full prior to the end of the full contemplated term thereof, and if the interest received for the actual period of existence thereof exceeds interest calculated at the Maximum Rate, Agent and Lenders shall refund to Borrower the amount of such excess, or credit the amount of such excess against the principal amount of the Notes, and, in such event, Agent and Lenders shall not be subject to any penalties provided by any laws for contracting for, charging, taking, reserving, or receiving interest in excess of interest calculated at the Maximum Rate. 9.9 Nonliability of Lenders. The relationship between Borrower and Lenders is, and shall at all times remain, solely that of Borrower and Lenders, and Lenders have no fiduciary or other special relationship with Borrower. 9.10 Article 15.10(b). Borrower, Agent, and Lenders hereby agree that, except for Section 15.10(b) thereof, the provisions of Art. 5069-15.01 et seq. of the Revised Civil Statutes of Texas, 1925, as amended (regulating certain revolving credit loans and revolving tri-party accounts) shall not apply to the Loan Documents. 9.11 Successors and Assigns. (a) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Borrower may not assign or transfer any of its rights or obligations hereunder without the prior written consent of Agent and all Lenders. Any Lender may sell participations to one or more banks or other institutions in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Advances owing to it); provided, however, that (i) such Lender's obligations under this Agreement and the other Loan Documents (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender shall remain solely responsible to Borrower for the performance of such obligations, (iii) such Lender shall remain the holder of its Notes for all purposes of this Agreement, (iv) Borrower shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents, and (v) such Lender shall not sell a participation that conveys to the participant the right to vote or give or withhold consents under this Agreement or any other Loan Document, other than the right to vote upon or consent to (A) any increase of such Lender's Commitments, (B) any reduction of the principal amount of, or interest to be paid on, the Advances of such Lender, (C) any reduction of any commitment fee or other amount payable to such Bank under any Loan Document, or (D) any postponement of any date for the payment of any amount payable in respect of the Advances of such Lender. (b) Borrower and Lenders agree that any Lender (an "Assigning Lender") may at any time assign to one or more Eligible Assignees all, or a portion of all, of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, its Commitment and Advances) (each an "Assignee"); provided, however, that (i) except in the case of an assignment of all of a Lender's rights and obligations under this Agreement and the other Loan Documents, the amount of the Commitments of the assigning Lender being assigned pursuant to each assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $25,000,000.00, (ii) the parties to each such assignment shall execute and deliver to Agent for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with the Note subject to such assignment, and a processing and recordation fee of $3,000.00; and (iii) Agent and Borrower consent to the assignment (and with respect to Borrower, Borrower furnishes written evidence of its consent to Agent), which consent shall not be unreasonably withheld. Upon such execution, delivery, acceptance, and recording, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, or, if so specified in such Assignment and Acceptance, the date of acceptance thereof by Agent, (x) the assignee thereunder shall be a party hereto as a "Lender" and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and under the Loan Documents and (y) the Lender that is an assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents (and, in the case of an Assignment and Acceptance covering all or the remaining portion of a Lender's rights and obligations under the Loan Documents, such Lender shall cease to be a party thereto). (c) By executing and delivering an Assignment and Acceptance, the Assigning Lender and its Assignee confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such Assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties, or representations made in or in connection with the Loan Documents or the execution, legality, validity, and enforceability, genuineness, sufficiency, or value of the Loan Documents or any other instrument or document furnished pursuant thereto; (ii) such Assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of its obligations under the Loan Documents; (iii) the Assignee confirms that it has received copies of the Loan Documents, together with copies of the financial statements referred to in Section 5.7 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) the Assignee will, independently and without reliance upon Agent or such assignor and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents; (v) the Assignee confirms that it is an Eligible Assignee; (vi) the Assignee appoints and authorizes Agent to take such action as Agent on its behalf and exercise such powers under the Loan Documents as are delegated to Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (vii) the Assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. (d) Agent shall maintain at its principal office a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of Lenders and the Commitment of, and principal amount of the Advances owing to, each Lender from time-to-time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Agent, and Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes under the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time-to- time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Acceptance executed by an Assigning Lender and Assignee representing that it is an Eligible Assignee (or other assignee permitted hereunder), together with any Note subject to such assignment, Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register, and (iii) give prompt written notice thereof to Borrower. Within five (5) Business Days after its receipt of such notice, Borrower shall execute and deliver to Agent in exchange for the surrendered Note a new Note to the order of such Eligible Assignee (or other assignee permitted hereunder) in an amount equal to the portion of the Commitments assumed by it pursuant to such Assignment and Acceptance and, if the Assigning Lender has retained a portion of the Commitments, a new Note to the order of the Assigning Lender in an amount equal to the portion of the Commitments retained by it hereunder (each such promissory note shall constitute a "Note" for purposes of the Loan Documents). Such new Notes shall be in an aggregate principal amount of the surrendered Note, shall be dated the effective date of such Assignment and Acceptance, and shall otherwise be in substantially the form of Exhibit B. (f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section, disclose to the Assignee or participant or proposed Assignee or participant, any information relating to Borrower furnished to such, Lender by or on behalf of Borrower, subject to the confidentiality requirements in Section 9.19. (g) Notwithstanding any other term of this Agreement to the contrary, any Lender may (without requesting the consent of either Agent or Borrower) pledge its Note to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (h) Notwithstanding any other term of this Agreement to the contrary, any Lender may assign all, or a portion of all, of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, its Commitment and Advances) to an Affiliate of such Lender or any other Lender, provided that: (i) such assignor Lender has obtained the written consent of Agent (which consent shall not be unreasonably delayed or withheld) if the effect of such assignment or delegation shall entitle such Affiliate or other Lender to claim compensation from Borrower pursuant to Section 2.6 and Exhibit D; and (ii) in every other case, such assignor Lender has furnished notice to, but not obtained the consent of, Agent. 9.12 Entirety. THIS AGREEMENT, THE NOTE, AND THE OTHER LOAN DOCUMENTS REFERRED TO HEREIN EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO, AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO. THE PROVISIONS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH BORROWER IS A PARTY MAY BE AMENDED OR WAIVED ONLY BY AN INSTRUMENT IN WRITING, SIGNED BY THE PARTIES HERETO. 9.13 Headings. Section headings are for convenience of reference only, and shall in no way affect the interpretation of this Agreement. 9.14 Survival. All representations and warranties made by Borrower herein shall survive delivery of the Note and the making of the Loan. 9.15 Amendments, Etc. No amendment or waiver of any provision of this Agreement, the Notes, or any other Loan Document to which Borrower is a party, nor any consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be agreed or consented to by the Required Lenders and Borrower, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, that no amendment, waiver, or consent shall, unless in writing and signed by all of Lenders and Borrower, do any of the following: (a) increase Commitments of Lenders or subject Lenders to any additional obligations; (b) reduce the principal of, or interest on, the Notes or any fees or other amounts payable to Lenders (but not Agent) hereunder; (c) postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable to Agent or Lenders hereunder; (d) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Notes or the number of Lenders which shall be required for Lenders or any of them to take any action under this Agreement; (e) change any provision contained in this Section 9.15; or (f) release any material portion of the Collateral, except in accordance with the relevant Loan Document. Notwithstanding anything to the contrary contained in this Section, no amendment, waiver, or consent shall be made with respect to Section 8 without the prior written consent of Agent. 9.16 No Third Party Beneficiary. The parties do not intend the benefits of this Agreement to inure to any third party, nor shall any Loan Document or any course of conduct by any party hereto be construed to make or render Agent or Lenders, or any of their officers, directors, agents, or employees liable (i) to any materialman, supplier, contractor, subcontractor, purchaser or lessee of any property owned by Borrower, or (ii) for debts or claims accruing to any such Persons against Borrower. 9.17 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BORROWER HEREBY IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF, OR RELATING TO ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF LENDER IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF. 9.18 Multiple Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. 9.19 Confidentiality. Subject to Section 9.16, Agent and Lenders shall hold all nonpublic information obtained pursuant to the requirements of this Agreement in confidence in accordance with Agent's and Lenders' customary procedures for handling confidential information of this nature, and in accordance with safe and sound banking practices; provided, however, that Agent or Lenders may make any disclosure thereof as is reasonably required by a bona fide potential assignee or participant, or as required or requested by any Governmental Authority or representative thereof, or pursuant to legal process, or as may be necessary in order to properly enforce Agent's or Lenders' rights and remedies following an Event of Default. 9.20 Arbitration. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO, INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S. D/B/A ENDISPUTE, INC. ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES, IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION. (a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF BORROWER'S DOMICILE AT THE TIME OF THIS AGREEMENT'S EXECUTION, AND ADMINISTERED BY J.A.M.S., WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS. (b) RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO (i) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR (ii) BE A WAIVER BY LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. (S) 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT OF LENDER HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SET-OFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF OR THE APPOINTMENT OF A RECEIVER. LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING, OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS AGREEMENT. AT AGENT'S OR LENDERS' OPTION, FORECLOSURE UNDER A DEED OF TRUST OR MORTGAGE MAY BE ACCOMPLISHED BY ANY OF THE FOLLOWING: THE EXERCISE OF A POWER OF SALE UNDER THE DEED OF TRUST OR MORTGAGE, OR BY JUDICIAL SALE UNDER THE DEED OF TRUST OR MORTGAGE, OR BY JUDICIAL FORECLOSURE. NEITHER THIS EXERCISE OF SELF HELP REMEDIES, NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL, CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES. [Remainder of Page Intentionally Left Blank; Signature Pages to Follow] SIGNATURE PAGES TO REVOLVING CREDIT AGREEMENT DATED AS OF JULY 23, 1997, EXECUTED BY JOHN C. MALONE, NATIONSBANK OF TEXAS, N.A., AS AGENT FOR THE LENDERS DEFINED THEREIN, AND THE LENDERS IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above written. Address for Notice: Terrace Tower II 5619 DTC Parkway Englewood, Colorado 80111 /s/ John C. Malone ------------------------------------- JOHN C. MALONE STATE OF NEW YORK (S) (S) COUNTY OF NEW YORK (S) Before me, a Notary Public, on this day personally appeared JOHN C. MALONE, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this ____ day of _______________, 1997. -------------------------------------- Notary Public Signature (PERSONALIZED SEAL) SIGNATURE PAGES TO REVOLVING CREDIT AGREEMENT DATED AS OF JULY 23, 1997, EXECUTED BY JOHN C. MALONE, NATIONSBANK OF TEXAS, N.A., AS AGENT FOR THE LENDERS DEFINED THEREIN, AND THE LENDERS Address for Notice: NATIONSBANK OF TEXAS, N.A., as Agent and a Lender 901 Main Street, 19th Floor By: /s/ Langford Keith, III P.O. Box 831000 ------------------------------------ Dallas, Texas 75283-1000 Langford Keith, III Attn: Langford Keith, III Senior Vice President Telecopy No.: (214) 508-1997 Commitment: $80,000,000 Applicable Lending Office for Prime Rate Advances: 901 Main Street, 19th Floor P.O. Box 832409 Dallas, Texas 75283-1000 Applicable Lending Office for Eurodollar Advances: 901 Main Street, 19th Floor P.O. Box 832409 Dallas, Texas 75283-1000 TORONTO DOMINION SECURITIES (USA), INC. as Co-Agent By: /s/ David G. Parker ------------------------------- David G. Parker, Vice President Commitment: $0.00 Address for Notice: TORONTO DOMINION (TEXAS), INC., c/o The Toronoto-Dominion Bank as a Lender 31 West 52nd Street New York, New York 10019 Attn: Michael Bondzierz By: /s/ Neva Nesbitt Telecopy: (212) 262-1928 ------------------------------- Applicable Lending Office for Neva Nesbitt, Vice President Prime Rate Advances: The Toronto-Dominion Bank 909 Fannin, Suite 1700 Commitment: $50,000,000.00 Houston, Texas 77010 Applicable Lending Office for Eurodollar Advances: The Toronto-Dominion Bank 909 Fannin, Suite 1700 Houston, Texas 77010 EXHIBITS Exhibit A - Form of Assignment and Acceptance Exhibit B - Form of Revolving Credit Note Exhibit C - Form of Notice of Borrowing Exhibit D - Eurodollar Requirements Exhibit E - Closing List Exhibit F - Initial Collateral Exhibit G - Litigation EXHIBIT A FORM OF ASSIGNMENT AND ACCEPTANCE --------------------------------- This Assignment and Acceptance (the "Assignment and Acceptance") is made as of ______________________, 199______ (the "Effective Date"), between ___________ ("Assignor") and _________ ("Assignee"). Reference is made to that certain Revolving Credit Agreement dated as of July 23, 1997 (the "Credit Agreement") among John C. Malone ("Borrower"), certain Lenders defined therein (the "Lenders"), NationsBank of Texas, N.A., a national banking association, as Agent for the Lenders, and Toronto Dominion Securities (USA), Inc., as Co-Agent for the Lenders. This Assignment and Acceptance is executed and delivered pursuant to, and as contemplated in, the Credit Agreement. Capitalized terms used but not defined herein shall have the meanings assigned thereto in the Credit Agreement. Assignor and Assignee hereby covenant and agree as follows: 1. Assignor hereby sells and assigns to Assignee, and Assignee hereby purchases and assumes from Assignor, $ ___________ of Assignor's Commitment and Principal Debt, representing a Pro Rata Part of the Commitments and Principal Debt of __ % as of the Effective Date. The foregoing interest for all events and circumstances shall be deemed such Assignee's Pro Rata Part (in addition to any other Pro Rata Part of Assignee, if any) in the Commitments, the Principal Debt, the Loan Documents, and all payments made to or received from Borrower pursuant to the Loan Documents and is subject to the terms and conditions provided in the Loan Documents. 2. Assignor (a) hereby represents and warrants to Assignee that Assignor is the legal and beneficial owner of the Pro Rata Part being assigned by it hereunder and such interest is free and clear of any adverse claim, and (b) hereby represents and warrants that as of the date hereof the Pro Rata Part in the Commitments and the Principal Debt being assigned hereunder is ___ % without giving effect to assignments that are not yet effective. 3. Assignee hereby confirms and acknowledges that, except as specifically set forth herein, Assignor: (a) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Loan Documents, or the execution, legality, validity, enforceability, genuineness, sufficiency, or value of the Loan Documents, or any other instrument or document furnished pursuant thereto; (b) makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or any other person or entity which is a party to any of the Loan Documents (collectively, "Other Party"); and (c) makes no representation or warranty and assumes no responsibility with respect to the performance or observance by Borrower or any Other Party of any of its obligations under any of the Loan Documents or any other instrument or document furnished pursuant thereto. 4. Assignee hereby: (a) confirms that it has received a copy of the Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance; and (b) agrees that it will, independently and without reliance upon Assignor or any other counterparty and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents. 5. Assignee hereby: (a) appoints and authorizes Agent under the Loan Documents to take such action as agent on its behalf and to exercise such powers under the Loan Documents as are delegated to Agent by the terms of the Loan Documents; and (b) agrees with Assignor for the benefit of Agent and Borrower that it will perform all of the obligations which by the terms of the Loan Documents are required to be performed by it as a counterparty (including, without limitation, the obligation to make payments pursuant to the Loan Documents) and that it shall be liable directly to Assignor, Agent, Borrower and, as provided in the Credit Agreement, to each Lender for the performance of such obligations. 6. If Assignee is organized under the laws of a jurisdiction outside the United States, it hereby represents and agrees that it has delivered or will within three (3) days after the date of the execution of this Agreement deliver to Assignor and the Administrative Agent completed and signed copies of any forms that may be required by the United States Internal Revenue Service in order to certify Assignee's exemption from United States withholding taxes with respect to any payment or distributions made or to be made to Assignee with respect to the Loan Documents. 7. As of the Effective Date, (a) Assignee shall be a party to the Loan Documents and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a counterparty thereunder, and (b) Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations in the Loan Documents with respect to the Pro Rata Part being assigned hereunder. 8. Assignee hereby represents and warrants as of the Effective Date: (a) Assignee has all necessary corporate power and authority to purchase and own the interest being assigned to it hereunder, and has all necessary corporate power and authority to perform all its obligations with respect to this Assignment and Acceptance; (b) the execution and delivery of this Assignment and Acceptance and all other instruments and documents executed in connection herewith have been duly authorized by all requisite corporate action of Assignee; and (c) no approval, authorization, order, license, or consent of, or registration or filing with, any Governmental Authority or other person is required in connection with this Assignment and Acceptance. 9. This Assignment and Acceptance shall be governed by, and construed in accordance with, the laws of the State of Texas, without giving effect to the conflict of laws principles thereof. 10. This Agreement may be executed in two or more counterparts each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 11. Assignee's address for notices and payments under the Agreement and this Assignment and Acceptance are set forth in Schedule 1 attached hereto and made a part hereof. Assignee may by notice in accordance with the Credit Agreement to Assignor, the Administrative Agent and Borrower change the address or telex number or facsimile number at which notices, communications and payments are to be given to it. ASSIGNOR: ----------------------------------------- By: -------------------------------------- Title: ----------------------------------- ASSIGNEE: ----------------------------------------- By: -------------------------------------- Title: ----------------------------------- ACCEPTED BY AGENT THIS _____ DAY OF ___________________ AGENT: NATIONSBANK OF TEXAS, N.A. By: --------------------------------- Name: ---------------------------- Title: --------------------------- SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE ADDRESS FOR NOTICES AND ACCOUNTS FOR PAYMENTS Address: ------------------------ ------------------------ ------------------------ Account for Payments: Account No.: ------------------------ Attention: ------------------------ Reference: ------------------------ Depositary: ------------------------ ------------------------ ------------------------ Applicable Lending Office - Base Rate Advances: ------------------------ ------------------------ ------------------------ Applicable Lending Office - Eurodollar Advances: ------------------------ ------------------------ ------------------------ EXHIBIT B FORM OF REVOLVING CREDIT NOTE ----------------------------- JOHN C. MALONE $ ------------- Dallas, Texas July 31, 1997 1. FOR VALUE RECEIVED, JOHN C. MALONE ("Maker"), hereby unconditionally promises to pay to the order of ______________________ ("Payee") at the address reflected on the signature page of the Loan Agreement (as defined below), the sum of __________________________________________________ AND NO/100 Dollars ($_______________________________________________) (or, if less, so much thereof as may be advanced and is outstanding), in lawful money of the United States of America. 2. This Revolving Credit Note (this "Note") has been executed and delivered pursuant to the Revolving Credit Agreement (as renewed, extended, amended, or restated, the "Loan Agreement") dated as of the date hereof, between Maker, Payee, certain other "Lenders," and NationsBank of Texas, N.A. as "Agent" for Lenders, and is the "Note" referred to therein. Capitalized terms not defined herein shall have the meaning assigned to those terms in the Loan Agreement. The holder of this Note is entitled to the benefits provided in the Loan Agreement. Reference is hereby made to the Loan Agreement for a statement of (i) the obligation of Payee to advance funds hereunder, (ii) the prepayment rights and obligations of Maker and (iii) the events on which the maturity of this Note may be accelerated. 3. The unpaid principal amount of, and accrued unpaid interest on, this Note is payable in accordance with the Loan Agreement, but not later than the Termination Date. 4. The unpaid principal balance advanced and outstanding hereunder shall bear interest from the date of advance until maturity at the rate per annum provided in the Loan Agreement. The interest rate specified in this section is subject to adjustment under the circumstances described in the Loan Agreement. Interest shall be computed in the manner provided in the Loan Agreement. 5. Notwithstanding any provision contained in this Note or any other document executed or delivered in connection with this Note or in connection with the Loan Agreement, Payee shall never be deemed to have contracted for or be entitled to receive, collect or apply as interest on this Note, any amount in excess of the maximum rate of interest permitted to be charged by applicable law, and, if Payee ever receives, collects or applies as interest any such excess, then the amount that would be excessive interest shall be applied to reduce the unpaid principal balance of this Note, and, if the principal balance of this Note is paid in full by that application, then any remaining excess shall promptly be paid to Maker. In determining whether the interest paid or payable under any specific contingency exceeds the highest lawful rate, Maker and Payee shall, to the maximum extent permitted under applicable law, (i) characterize any non-principal payment (other than payments expressly designated as interest payments hereunder) as an expense or fee rather than as interest, (ii) exclude voluntary prepayments and the effect thereof, and (iii) spread the total amount of interest throughout the entire contemplated term of this Note so that the interest rate is uniform throughout that term. 6. If the principal of, or any installment of interest on, this Note becomes due and payable on a day other than a Business Day, then the maturity thereof shall be extended to the next succeeding Business Day. If this Note, or any installment or payment due hereunder, is not paid when due, whether at maturity or by acceleration, or if it is collected through a bankruptcy, probate or other court, whether before or after maturity, then Maker shall pay all costs of collection, including, but not limited to, attorney's fees incurred by the holder of this Note. All past due principal of, and to the extent permitted by applicable law, interest on this Note shall bear interest until paid at the rate provided in the Loan Agreement. 7. Maker and all sureties, endorsers, guarantors and other parties ever liable for payment of any sums payable pursuant to the terms of this Note, jointly and severally waive demand, presentment for payment, protest, notice of protest, notice of acceleration, notice of intent to accelerate, diligence in collection, the bringing of any suit against any party and any notice of or defense on account of any extensions, renewals, partial payments or changes in any manner of or in this Note or in any of its terms, provisions and covenants, or any releases or substitutions of any security, or any delay, indulgence or other act of any trustee or any holder hereof, whether before or after maturity. 8. This Note is being executed and delivered, and is intended to be performed in the State of Texas. Except to the extent that the laws of the United States may apply to the terms hereof, the substantive laws of the State of Texas shall govern the validity, construction, enforcement and interpretation of this Note. MAKER: ---------------------------------- John C. Malone EXHIBIT C NOTICE OF BORROWING ------------------- 1. Submission Pursuant To Credit Agreement. This Notice of Borrowing is executed and delivered by John C. Malone ("Borrower"), to NationsBank of Texas, N.A., as Agent (the "Agent"), pursuant to Section 2.3 of the Revolving Credit Agreement (the "Agreement") dated as of July 23, 1997, between Borrower, certain Lenders defined therein (the "Lenders"), NationsBank of Texas, N.A., a national banking association, as Agent for the Lenders, and Toronto Dominion Securities (USA), Inc., as Co-Agent for the Lenders. Any capitalized terms used and not defined herein shall have the meanings assigned to them in the Agreement. 2. Request For Advance. Borrower hereby requests that Lenders make an Advance to Borrower pursuant to the Agreement as follows: A. Prime Rate Borrowing. (i) Amount of Prime Rate Borrowing: . -------------- [ ] Borrowing [ ] Rollover/Conversion (ii) Date of Borrowing or Rollover/Conversion of Existing Borrowing: -------------- B. Eurodollar Borrowing. (i) Amount of Eurodollar Borrowing: . -------------- [ ] Borrowing [ ] Rollover/Conversion (ii) Date of Borrowing or Rollover/Conversion of Existing Borrowing: -------------- (iii) Interest Period: -------------- day/months (one, two, three, four, or six months). 3. Representations, Warranties and Certifications. Borrower hereby represents, warrants, and certifies to Agent and Lenders that, as of the date of the Advance requested herein: (a) there exists no Potential Default or Event of Default; (b) the Borrower has performed and complied with all agreements and conditions contained in the Agreement that are required to be performed or complied with by the Borrower; and (c) the representations and warranties of a continuing nature contained in the Agreement and each of the other Loan Documents are true and correct in all material respects (except to the extent that they speak to a specific date or are based on facts which have changed by transactions expressly contemplated or permitted by the Credit Agreement), with the same force and effect as though made on and as of the date of the Advance. 4. Proceeds of Borrowing. Agent is authorized to deposit the proceeds of the Advance requested hereby, other than an Advance constituting a rollover or conversion of an existing Advance, to: ____________________________________. 5. Execution Authorized. This Notice of Borrowing is executed on ________, 19__. The undersigned hereby certifies the accuracy of the foregoing. -------------------------------------- John C. Malone EXHIBIT D EURODOLLAR ADVANCES ------------------- (a) Inadequacy of Eurodollar Pricing. If with respect to an Interest Period for any Eurodollar Advance: (i) Agent determines that the basis for determining the Eurodollar Rate is not available; or (ii) a Lender reasonably determines that the Eurodollar Rate as determined by Agent will not adequately and fairly reflect the cost to such Lender of maintaining or funding the Eurodollar Advance for such Interest Period; then (A) in the case of (i), Agent shall forthwith give notice thereof to Borrower and Lenders of that determination (which is presumed to be correct in the absence of manifest error), all Advances shall be Prime Rate Advances, and until Agent notifies Borrower and Lenders that such circumstances no longer exist, Lenders' commitments under this Agreement to make, or convert to, Eurodollar Advances shall be suspended, and (B) in the case of (ii), such Lender shall forthwith give notice thereof to Agent and Borrower, the obligation of such Lender to make Eurodollar Advances shall be suspended, Borrower shall, at its option, either (I) repay in full the then-outstanding principal amount of all Eurodollar Advances, together with accrued interest thereon on the last day of the then current Interest Period applicable to such Eurodollar Advances, or (II) convert such Eurodollar Advances to Prime Rate Advances in accordance with Section 2.3(c) of this Agreement on the last day of the then-current Interest Period applicable to each such Eurodollar Advance, and until such Lender notifies Agent and Borrower that such circumstances no longer exist, such Lender's commitment under this Agreement to make, or convert to, Eurodollar Advances shall be suspended. (b) Illegality of Eurodollar Advances. If, after the date of this Agreement, the adoption of any applicable law, rule, or regulation, 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 Agent or any Lender with any request or directive (whether or not having the force of law) of any such authority, central bank, or comparable agency shall make it unlawful or impossible for any Lender to make, maintain, or fund its Eurodollar Advances, then such Lender shall forthwith give notice thereof to Agent and Borrower. Before giving any notice pursuant to this subsection, such Lender shall designate a different Eurodollar lending office if such designation will avoid the need for giving such notice and will not be otherwise disadvantageous to any non-trivial extent to such Lender (as determined in good faith by such Lender). Upon receipt of such notice, Borrower shall either (i) repay in full the then- outstanding principal amount of any of such Lender's Eurodollar Advances, together with accrued interest thereon, or (ii) convert such Lender's Eurodollar Advances to Prime Rate Advances, on either (A) the last day of the then current Interest Period applicable to such Eurodollar Advance, if such Lender may lawfully continue to maintain and fund such Eurodollar Advance to such day, or (B) immediately, if such Lender may not lawfully continue to fund and maintain such Eurodollar Advance to such day. (c) Increased Costs for Eurodollar Advances. If, after the date hereof, any Governmental Authority, central bank, or other comparable authority, shall at any time impose, modify, or deem applicable any reserve (including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System, and any reserve requirement included in the Eurodollar Reserve Requirement), special deposit or similar requirement against assets of, deposits with, or for the account of, or credit extended by, any Lender, or shall impose on any Lender (or its Applicable Lending Office) or the interbank eurodollar market any other condition affecting its Eurodollar Advances, the Notes or such Lender's obligation to make Eurodollar Advances; and the result of any of the foregoing is to increase the cost to such Lender of making or maintaining its Eurodollar Advances, or to reduce the amount of any sum received or receivable by such Lender under this Agreement, or under such Lender's Note, by an amount deemed by such Lender to be material, then, within five (5) days after demand by such Lender, Borrower shall pay to Agent, for the account of such Lender, such additional amount or amounts as will compensate such Lender for such increased reserve, cost or reduction. Such Lender will (i) notify Agent and Borrower of any event occurring after the date of this Agreement which will entitle such Lender to compensation pursuant to this Section, as promptly as practicable (but in any event within 120 days) after such Lender obtains actual knowledge of such event, and Borrower shall not be liable for any such increased costs that accrue between the date such notification is required to be given and the date it was actually given, and (ii) use good faith and reasonable efforts to designate an Applicable Lending Office for Eurodollar Advances of such Lender, if such designation will avoid the need for, or reduce the amount of, such compensation, and will not, in the sole opinion of such Lender, be disadvantageous to such Lender (provided that such Lender shall have no obligation to so designate a lending office located in the United States of America). A certificate of such Lender claiming compensation under this Section and setting forth in reasonable detail the calculation of the additional amount or amounts to be paid to it hereunder shall be presumed to be correct in the absence of manifest error. If a Lender demands compensation under this Section, then Borrower may at any time, upon at least five (5) Business Days' prior notice to such Lender and Agent, either (i) repay in full the then outstanding Eurodollar Advances to such Lender, together with accrued interest thereon to the date of prepayment, or (ii) convert such Eurodollar Advances to Prime Rate Advances in accordance with the provisions of this Agreement; provided, however, that Borrower shall be liable for any Funding Loss arising pursuant to such actions. (d) Effect on Prime Rate Advances. If notice has been given pursuant to paragraph (a) or (b) above, requiring the Eurodollar Advances to be repaid or converted, then unless and until Agent notifies Borrower that the circumstances giving rise to such repayment no longer apply, all Advances shall be Prime Rate Advances. If Agent notifies Borrower that the circumstances giving rise to such repayment no longer apply, Borrower may thereafter select Advances to be Eurodollar Advances in accordance with Section 2.3(c) of this Agreement. (e) Funding Losses. Borrower shall indemnify Agent and each Lender against any loss or reasonable expense (such loss or expense is referred to herein as a "Funding Loss," such term including, but not limited to, any loss or reasonable expense sustained or incurred or to be sustained or incurred in liquidating or reemploying deposits from third parties acquired to effect or maintain such Advance or any part thereof as a Eurodollar Advance) which Agent or any Lender may sustain or incur as a consequence of (i) any failure by Borrower to fulfill on the date of any Advance hereunder the applicable conditions set forth in Section 4, (ii) any failure by Borrower to borrow hereunder or to convert Advances hereunder after a Notice of Borrowing has been given, (iii) any payment, prepayment, or conversion of a Eurodollar Advance required or permitted by any other provisions of this Agreement, including, without limitation, payments made due to the acceleration of the maturity of Advances pursuant to Section 7.2, or otherwise made on a date other than the last day of the applicable Interest Period other than pursuant to Section (a)(ii) of this Exhibit, (iv) any default in the payment or prepayment of the principal amount of any Advance or any part thereof or interest accrued thereon, as and when due and payable (at the due date thereof, by notice of prepayment or otherwise), or (v) the occurrence of an Event of Default. The term "Funding Loss" includes, without limitation, an amount equal to the excess, if any, as determined by Agent or any Lender of (A) its cost of obtaining the funds for the Advance being paid, prepaid, or converted or not borrowed or converted (based on the Adjusted Eurodollar Rate applicable thereto) for the period from the date of such payment, prepayment, or conversion or failure to borrow or convert to the last day of the Interest Period for such Advance (or, in the case of a failure to borrow or convert, the Interest Period for the Advance which would have commenced on the date of such failure to borrow or convert) over (B) the amount of interest (as estimated by Agent or such Lender) that would be realized by Agent or such Lender in reemploying the funds so paid, prepaid, or converted or not borrowed or converted for such period or Interest Period, as the case may be. A certificate of Agent or such Lender setting forth any amount or amounts which Agent or such Lender is entitled to receive pursuant to this paragraph (e), together with a description in reasonable detail of the manner in which such amounts have been calculated, shall be delivered to Borrower and shall be presumed to be correct in the absence of manifest error. Borrower shall pay to Agent, for itself or for the account of any such Lender, the amount shown as due on any certificate within five (5) days after its receipt of the same. Notwithstanding the foregoing, in no event shall Lender be permitted to receive any compensation hereunder constituting interest in excess of the Maximum Rate. EXHIBIT E CLOSING CONDITIONS ------------------ Unless otherwise specified, all dated as of July 23, 1997, or a date (a "Current Date") within 30 days before the Closing Date. H&B [[1.] REVOLVING CREDIT AGREEMENT (the "Loan Agreement") dated as of July 23, 1997, between JOHN C. MALONE, ("Borrower"), certain Lenders defined therein (the "Lenders"), NATIONSBANK OF TEXAS, N.A., as Agent for the Lenders, and TORONTO DOMINION SECURITIES (USA), INC., as Co-Agent for the Lenders -- all the terms of which or incorporated in which have the same meanings when used in this schedule -- to which must be attached: Exhibit A - Form of Assignment and Acceptance Exhibit B - Form of Revolving Credit Note Exhibit C - Form of Notice of Borrowing Exhibit D - Eurodollar Requirements Exhibit E - Closing List Exhibit F - Initial Collateral Exhibit G - Litigation H&B 2. REVOLVING CREDIT NOTE in the total stated principal amount of $80,000,000.00, executed by Borrower, payable to NationsBank of Texas, N.A., in substantially the form of Exhibit B to the Loan Agreement. H&B 3. REVOLVING CREDIT NOTE in the total stated principal amount of $50,000,000.00, executed by Borrower, payable to Toronto Dominion (Texas), Inc., in substantially the form of Exhibit B to the Loan Agreement. H&B [4.] PLEDGE AGREEMENT executed by Borrower and Agent. H&B 5. RULE 144 RIDER executed by Borrower, substantially in the form of Rider 1 to the Pledge Agreement. Borrower 6. STOCK CERTIFICATES: 11,500,000 shares of Tele-Communications, Inc. Series B TCI Group Common Stock in the name of "John C. Malone," Cusip Number 87924V200; and 3,058,358 shares of Tele- Communications, Inc. Series B Liberty Media Group Common Stock in the name of "John C. Malone," Cusip Number 87924V606, as evidenced by the following:
- ------------------------------------------------------------------------------- Issuer Certificate Number Number of Shares - ------------------------------------------------------------------------------- Tele-Communications, Inc. TB6384 11,500,000.00 Series B TCI Group - --------------------------------------------------------------------------------
- -------------------------------------- [[ ] indicates items not complete at time of this draft of this schedule, together with names of individuals of parties or counsel with responsibility for each.
- -------------------------------------------------------------------------------- Issuer Certificate Number Number of Shares - -------------------------------------------------------------------------------- Tele-Communications, Inc. LB0649 416,666 Series B Liberty Media Group - ------------------------------------------------------------------------------- Tele-Communications, Inc. LB0651 2,251,026 Series B Liberty Media Group - -------------------------------------------------------------------------------- Tele-Communications, Inc. LB0652 416,666 Series B Liberty Media Group - --------------------------------------------------------------------------------
H&B [6.] STOCK POWERS, executed in blank, with signatures guaranteed. H&B 7. UCC-1 FINANCING STATEMENTS executed by Borrower in form suitable for filing with the Office of the Secretary of State for each of Colorado and Texas. H&B 8. PURPOSE STATEMENT on Form U-1. Borrower's Counsel 9. OPINION OF COUNSEL for Borrower, dated as of July 23, 1997, in a form satisfactory to Agent. Borrower 10. FINANCIAL STATEMENTS for Borrower. H&B 11. NOTICE OF NO ORAL AGREEMENTS pursuant to Section 26.02 of Texas Uniform Commercial Code. 12. NOTICE OF BORROWING, dated as of July 23, 1997, executed by Borrower. 13. Such other documents and items as Lender may reasonably request. EXHIBIT F INITIAL COLLATERAL ------------------ 11,500,000 shares of Tele-Communications, Inc. Series B TCI Group Common Stock in the name of "John C. Malone," Cusip Number 87924V200; and 3,058,358 Shares of Tele-Communications, Inc. Series B Liberty Media Group Common Stock in the name of "John C. Malone," Cusip Number 87924V606, as evidenced by the following:
- ------------------------------------------------------------------------------- Issuer/Series Certificate Number Number of Shares - ------------------------------------------------------------------------------- Tele-Communications, Inc. TB6384 11,500,000.00 Series B TCI Group - ------------------------------------------------------------------------------- Tele-Communications, Inc. LB0649 416,666 Series B Liberty Media Group - ------------------------------------------------------------------------------- Tele-Communications, Inc. LB0652 2,251,026 Series B Liberty Media Group - ------------------------------------------------------------------------------- Tele-Communications, Inc. LB0651 416,666 Series B Liberty Media Group - ------------------------------------------------------------------------------
SCHEDULE G Part I - ------ Below is a list of the litigation matters in which John C. Malone has been named a party. Except as noted in the description of these matters in Part II of this Schedule, liability is believed to be deminimis, if any. 1. E.L. Greenfield, as custodian for M.L. Greenfield, Plaintiff, vs. Tele- Communications, Inc., John C. Malone, Paul F. O'Brien, Donne F. Fisher, Bob Magness, United Artists Communications, Inc., Stewart D. Blair, Robert R. Beck, G. Chris Anderson, Allen Pinsker, United Cable Television Corporation, Gene W. Schneider, Fred A. Vierra, Richard C. Schneider, Melvin R. Lohmann, Joseph E. Giovanini, and Curtis Rochelle, Defendants. Summary: Action to enjoin/rescind merger of United Artists and United Cable Television. 2. Brian Barry, et al. vs. Turner Broadcasting System, Inc., R.E. Turner, Henry Aaron, Rubye Lucas, Michael J. Fuchs, W. Thomas Johnson, Brian L. Roberts, Joseph J. Collins, Gerald Levin, John C. Malone, Timothy P. Neher, Fred A. Vierra, Scott M. Sassa, Robert Shaye, Terence F. McGuirk, Peter R. Barton, Time Warner, Inc., and Tele-Communications, Inc. Summary: See Paragraph 1 in Part II. 3. James Dalton, Michael Dinsmore, Daniel Berstein, and Susan Yancey-Disbrow, vs. Tele-Communications, Inc., John C. Malone, Brendan R. Clouston, Barry P. Marshall, Camille K. Jayne, Sadi N. Decker, Bruce W. Ravenel, Gerald W. Gaines, Bernard W. Schotters, II, and Daniel L. Ritchie and Donne F. Fisher, in Their capacity as Co-Personal Representatives of the Estate of Bob Magness (Tele-Communications, Inc.) Summary: See Paragraph 4 in Part II. 4. Elizabeth Leonie Palumbo, Bryant Hill, Derek Morris, John Singleton, Jr., et al. vs. Tele-Communications, Inc., John Malone, and JC Sparkman (District Cablevision Limited Partnership) Summary: Class action; racial discrimination; dismissed without prejudice in 1995. 5. John Ciccarone, Harvey Brower, and James Consentino vs. QVC, Inc., Barry Diller, Michael C. Boyd, William F. Costello, Peter R. Barton, Edwin W. Hamowy, Melvin Jacobs, J. Bruce Llewellyn, John C. Malone, Brian L. Roberts, Ralph J. Roberts, Joseph M. Segel, Laurence Tisch, and CBS, Inc. [Liberty Media Corp.] Summary: See Paragraph 2 in Part II. 6. In re Liberty Media Corporation Shareholder Litigation (original complaint, as amended, named as defendants: Bob Magness, John Malone, Peter Barton, H.F. Lenfest, Robert Johnson, Paul Gould, Liberty Media Corporation na and Tele-Communications, Inc., David Wargo, and David Rapley) Summary: See Paragraph 3 in Part II. 7. Glendora vs. John Malone, Bob Magness, Tele-Communications, Inc., Brendan Clouston, Robert Thomson, Barry Marshall, Donne Fisher, John Gallivan, Kim Magness, Robert Naify, Paul O'Brien, Brian Sullivan, Scott Brown, Mary Margarelli, John Wicker, Nona-Kerry Dunne, Myles Rich, and UA-Columbia Cablevision of Westchester, Inc. d/b/a TCI Cable of Westchester [UA- Columbia Cablevision of Westchester, Inc.] Summary: Action for an injunction on removing a program from broadcast; in preliminary stages of third complaint; first two actions dismissed. Part II - ------- Set forth below is the description of certain of the matters listed in Part I of this Schedule, as disclosed in the public filings of Tele-Communications, Inc. 1. Turner Broadcasting Systems, Inc. Shareholder Litigation. Following -------------------------------------------------------- the announcement of the proposed merger (the "TBS-Time Warner Merger") between Turner Broadcasting Systems, Inc. ("TBS") and Time Warner, Inc. ("Time Warner") several purported class action lawsuits were filed by TBS shareholders in Fulton County Superior Court, Georgia. On November 1, 1995, plaintiffs in thirteen of the cases filed a second amended class action Complaint in what will be a consolidated action styled Lewis v. TBS, Inc. C.A. No. B-41500. The defendants ------------------ include, among others, Tele-Communications, Inc., John Malone, Peter Barton and Fred Vierra. The claims and defendants in the actions other than the Lewis ----- action are substantially the same as set forth in the second amended complaint in the Lewis action. Plaintiffs allege in the second amended complaint in the ----- Lewis action that defendants have injured the public stockholders of TBS in - ----- conjunction with the TBS-Time Warner Merger proposal by (a) misrepresenting the extent to which defendants Time Warner, TCI, John Malone and R.E. Turner ("Turner") have acted for their own benefit and not for the benefit of TBS or its stockholders, (b) failing to adequately disclose the full nature and value of special considerations granted to TCI and Turner in connection with the TBS- Time Warner Merger proposal, (c) failing to engage in arms' length bargaining or give any consideration to maximizing TBS stockholder value, (d) proposing to provide the public holders of TBS stock with unfair consideration in the TBS- Time Warner Merger, and (e) seeking to entrench certain of the TBS officers and directors. Plaintiffs in the Lewis action seek to enjoin the consummation of ----- the TBS-Time Warner Merger, enjoin the transfer of any assets to TCI in connection with the TBS-Time Warner Merger, or to rescind the TBS-Time Warner Merger or transfer of assets if such acts are consummated. Plaintiffs also seek unspecified compensatory and punitive damages. On December 20, 1996, the Georgia State Court dismissed the plaintiffs third amended complaint in the Lewis action. Plaintiffs have stated their intention to appeal the dismissal - ----- order and filed a fourth amended complaint on January 16, 1997. Discovery has not commenced in any of the actions. Based upon the facts available, management believes that, although no assurance can be given as to the outcome of these actions, the ultimate disposition should not have a material adverse effect upon the financial condition of the Company. 2. QVC Shareholders Litigation. In July 1994, eight putative class action --------------------------- lawsuits were filed by certain shareholders of the company in the Delaware Court of Chancery on behalf of unspecified classes of holders of QVC common stock. On August 3, 1994, these actions were consolidated under the caption In re QVC --------- Shareholders Litigation, Consolidated Civil Action No. 13590 (Court of Chancery, - ----------------------- New Castle County, State of Delaware) (the "Consolidated Action"). The defendants named in the designated complaint in the Consolidated Action included QVC and its then directors (Barry Diller, Bruce R. Ramer, Linda J Wachner, William F. Costello, J. Bruce Llewellyn, Brian L. Roberts, Ralph J. Roberts and Joseph M. Segal). In their designated complaint in the Consolidated Action, plaintiffs alleged, among other things, that the QVC directors breached their fiduciary duties by failing to take all possible steps to seek out and encourage the best offer for QVC following the announcement by Comcast of a merger proposal to acquire QVC. Plaintiffs sought, among other things, an injunction ordering the defendants to auction QVC and an award of unspecified damages to the members of the plaintiff class. On July 22, 1994, Comcast and Liberty made a merger proposal to QVC in order to acquire the remaining shares of QVC common stock that Comcast and Liberty collectively did not already own. During early August 1994, counsel for the plaintiffs in the Consolidated Action advised counsel for Liberty that they were preparing to amend the designated complaint to name Comcast and Liberty as defendants. On August 3-4, 1994, plaintiffs' counsel negotiated with counsel for Liberty with respect to a proposed increase in the consideration to be paid to QVC's public shareholders as well as the accelerated payment of such consideration, as bases for the possible settlement of the Consolidated Action. On August 5, plaintiffs, defendants, Comcast and Liberty executed a memorandum of understanding which contemplated the settlement and dismissal with prejudice of the Consolidated Action. On August 4, 1994, Comcast, Liberty, QVC Programming Holdings, Inc. and the Company executed a merger agreement which, among other things, reflected the parties' agreement to the terms and transactions contemplated by the memorandum of understanding. On August 19, 1994, as contemplated by the memorandum of understanding, plaintiffs filed a consolidated amended class action complaint with the Delaware Court of Chancery against QVC, the company's directors, Comcast and Liberty. The settlement of the Consolidated Action was approved by the Delaware Court of Chancery on February 5, 1997 and will result in the dismissal with prejudice of the Consolidated Action, and a complete release of all claims, known or unknown, arising out of or related to the acts, transactions or occurrences that are alleged in the Consolidated Action. Defendants in the Consolidated Action have entered into the memorandum of understanding and have entered into the stipulation of settlement for the Consolidated Action solely because the proposed settlement would eliminate the distraction, burden and expense of the litigation. This represents the final resolution of this matter, and accordingly, it will not be reported in future filings. 3. In re Liberty Media Corporation Shareholder Litigation, Cons. C.A. No. ------------------------------------------------------ 13168 (Del. Ch.). In October 1993, after the announcement that Liberty would recombine with TCI through the mergers of TCIC and Liberty with subsidiaries of a newly formed holding company, seven putative class action lawsuits were filed by Liberty stockholders in the Court of Chancery of the State of Delaware (the "Delaware Chancery Court") on behalf of unspecified classes of the holders of Liberty common stock (other than defendants). The original defendants included certain directors of Liberty (Bob Magness, John C. Malone, Peter R. Barton, H.F. Lenfest, Robert L. Johnson and Paul A. Gould), Liberty and TCI. These actions were consolidated by the Delaware Chancery Court on October 27, 1993 under the caption In re Liberty ------------- Media Corporation Shareholder Litigation, Cons. C.A. No. 13168 (the "Liberty - ---------------------------------------- Stockholder Action"). On December 21, 1994, plaintiffs were permitted by the Delaware Chancery Court to file a second consolidated amended complaint against the defendants named in the pending complaint and Liberty directors David Wargo and David Rapley. The pending complaint is on behalf of a putative class consisting of all holders of Liberty common stock (except the defendants and their affiliates) from and after October 7, 1993 through the date of the TCI/Liberty Combination. Plaintiffs alleged that the Liberty stockholders received inadequate consideration in the TCI/Liberty Combination, that the defendants impeded the ability of third parties to seek to acquire Liberty, and that the defendants failed to conduct an auction or market check following the announcement of the proposed TCI/Liberty Combination. Plaintiffs sought to rescind the TCI/Liberty Combination, to require defendants to take all appropriate steps to enhance Liberty's value as an acquisition candidate, to account to the plaintiff class for all profits obtained by defendants, and to require defendants to pay unspecified damages to the plaintiff class. In February 1997, the parties to the action reached an agreement, in principle, to settle the litigation in exchange for the payment by TCI of (i) $44 million (in TCI Group stock or cash) to the Liberty stockholders at the time of the TCI/Liberty Combination and (ii) fees for plaintiffs' counsel. Formal settlement papers are expected to be filed with the Delaware Chancery Court by April 30, 1997. This represents the final resolution of this matter, and accordingly, it will not be reported in future filings. 4. James Dalton, et al. v. Tele-Communications, Inc., et al. On February --------------------------------------------------------- 24, 1997, James Dalton, et al. filed suit in District Court for Arapahoe County, Colorado, Case No. 97-CV421, against Tele-Communications, Inc. ("TCI") and certain officers of TCI. Plaintiffs filed this action under the Colorado Securities Act and Colorado common law on behalf of all persons who purchased TCI securities from January 10, 1996 through October 24, 1996 ("the class period"). Plaintiffs claim, in part, that the defendants made false and misleading statements during the class period concerning TCI's revenue and cash flow growth, subscriber growth, and expansion and diversification into a multi- business platform; and that TCI failed to disclose the performance of its various operations. Plaintiffs claim further, in part, that TCI's cash flow growth was weak and below levels necessary to fund a multi-business diversification program and that TCI was competitively disadvantaged and would likely be threatened by adverse conditions impacting its business. Plaintiffs are seeking nationwide class certification and claim that the amount in controversy is less than $75,000 per named plaintiff, exclusive of interest and costs. TCI intends to defend such claims vigorously. Based upon the facts available, management believes that, although no assurances can be given as to the outcome of this action, the ultimate disposition should not have a material adverse effect upon the financial condition of the Company. EX-7.(F) 4 LETTER AGREEMENT, DATED JULY 23, 1997 Exhibit 7(F) July 23, 1997 Dr. John C. Malone Dear Dr. Malone: Reference is made to (i) the Agreement and Plan of Merger (the "Merger Agreement"), dated as of April 18, 1997, among Tele-Communications, Inc. ("TCI"), TCI KT Merger Sub, Inc. and Kearns-Tribune Corporation ("KT") and (ii) that certain letter agreement (the "Exchange Agreement"), dated as of April 18, 1997, between you and KT. Capitalized terms used herein have the meanings ascribed to such terms in the Merger Agreement. Under the Exchange Agreement, you have certain rights, which are exercisable immediately prior to the consummation of the Merger, to acquire from KT all or any portion of the shares of TCI Series B Stock and LMG Series B Stock owned by KT. In consideration of your waiving such rights, this will confirm our agreement that at any time and from time to time prior to July 30, 1998, you shall have the right to acquire from TCI (i) up to 9,112,500 shares of the TCI Series B Stock in exchange for your delivery of an equal number of shares of TCI Series A Stock, and (ii) up to 2,278,125 shares of the LMG Series B Stock in exchange for your delivery of an equal number of shares of LMG Series A Stock. It is further agreed that you may elect to acquire all, any portion, or any combination of such shares of TCI Series B Stock and LMG Series B Stock as provided above and that you are under no obligation to acquire any such shares. If the foregoing accurately reflects our agreement, please so indicate by executing and returning a counterpart of this letter. Very truly yours, TELE-COMMUNICATIONS, INC. By: /s/ Stephen M. Brett ------------------------------------ Name: Stephen M. Brett Title: Executive Vice President and General Counsel ACCEPTED AND AGREED /s/ John C. Malone - --------------------------------- John C. Malone EX-7.(G) 5 LETTER AGREEMENT, DATED APRIL 18, 1997 Exhibit 7(G) KEARNS-TRIBUNE CORPORATION 400 Tribune Building Salt Lake City, Utah 84111 April 18, 1997 Dr. John C. Malone Dear Dr. Malone: In connection with transactions contemplated by the Agreement and Plan of Merger, dated as of April 18, 1997, among Kearns-Tribune Corporation ("KT"), Tele-Communications, Inc. ("TCI") and TCI KT Merger Sub, Inc. (the "Merger Agreement"), you have asserted certain rights under the letter agreement, dated June 17, 1988, among you, KT and Bob Magness (the "Letter Agreement"). Without taking any position with respect to your interpretation, by our execution hereunder, we agree that immediately prior to the Effective Time (as defined in the Merger Agreement) and provided that all conditions precedent to KT's obligation to consummate the merger have been satisfied or waived, you may acquire from KT (i) all of the shares of Tele-Communications, Inc. Series B TCI Group Common Stock ("TCI Series B Stock") owned by KT in exchange for your delivery to KT of an equal number of shares of Tele-Communications, Inc. Series A TCI Group Common Stock, and (ii) all of the shares of Tele-Communications, Inc. Series B Liberty Media Group Common Stock ("LMG Series B Stock") owned by KT in exchange for your delivery to KT of an equal number of shares of Tele- Communications, Inc. Series A Liberty Media Group Common Stock. It is further agreed that you may elect to acquire all, any portion, or any combination of such shares of TCI Series B Stock and LMG Series B Stock as provided above and that you are under no obligation to acquire any such shares. In the event the Merger Agreement is terminated, this Agreement shall also terminate and have no effect on the validity or enforceability of the Letter Agreement. If the foregoing accurately reflects our agreement, please so indicate by executing and returning a counterpart of this letter. Very truly yours, KEARNS-TRIBUNE CORPORATION By: /s/ Dominic A. Welch --------------------------- Name: Dominic A. Welch Title: President ACCEPTED AND AGREED this 18/th/ day of April, 1997 /s/ John C. Malone - --------------------------------- John C. Malone -----END PRIVACY-ENHANCED MESSAGE-----