EXHIBIT 2
THIRD AMENDMENT
TO
RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
GETTY INVESTMENTS L.L.C.
THIS THIRD AMENDMENT TO RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this
"Amendment") is made as of July 1, 2003 among the following parties:
(1) THE TRUSTEE OF THE CHEYNE WALK TRUST, whose registered office is located
at 0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxx, Xxxxxx 00000, XXX ("CWT Trustee");
(2) THE TRUSTEES OF THE XXXXXX X. GETTY FAMILY TRUST, whose registered office
is located at 0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxx, Xxxxxx 00000, XXX
("GPGFT Trustees");
(3) THE TRUSTEES OF THE XXXXXX FAMILY TRUST A, whose registered office is
located at 0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxx, Xxxxxx 00000, XXX ("RFTA
Trustees");
(4) THE TRUSTEES OF THE XXXXXX FAMILY TRUST B, whose registered office is
located at 0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxx, Xxxxxx 00000, XXX ("RFTB
Trustees");
(5) TRANSON LIMITED, whose registered office is located at c/o Macfarlanes, 00
Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx ("Transon"); and
(6) GETTY INVESTMENTS L.L.C., a Delaware limited liability company, whose
registered office is located at 0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxx,
Xxxxxx 00000 (the "Company").
WHEREAS,
(A) The parties have entered into a Restated Limited Liability Company
Agreement, dated as of February 9, 1998, as amended by an Agreement and
Waiver, dated as of October 26, 1999, and a Second Amendment to Restated
Limited Liability Company Agreement, dated as of November 1, 2001
(collectively, the "Operating Agreement"), pursuant to which the affairs
of the Company are governed.
(B) The Operating Agreement provides that the Interest held in the name of
Transon may be redeemed by the Company with the consent of a Majority of
the Members (other than Transon) upon the death of Xxx Xxxx Getty.
(C) Xxx Xxxx Getty died in London on April 17, 2003.
(D) The Members, representing one hundred percent of the Interests, wish to
cause the Company to redeem Transon's Interest and to make additional
modifications to the Operating Agreement.
IT IS AGREED as follows:
1. Definitions. All expressions defined in the Operating Agreement shall bear
the same meanings in this Agreement. Unless otherwise indicated, article
references used in this Agreement shall correspond to those of the
Operating Agreement.
2. Amendment to the Operating Agreement. The Operating Agreement is hereby
amended as follows:
a. Redemption of Transon Interest. The Company shall redeem the Interest
of Transon in its entirety for a redemption price of $30,510,883,
representing Transon's entire Capital Account as of April 17, 2003
(the "Transon Redemption Price"). The closing of the redemption of
the Interest of Transon and the payment of the Transon Redemption
Price shall occur on July 16, 2003 (or such other date as may be
agreed by all the parties) at the Company's office in Reno, Nevada
(the "Closing").
The Transon Redemption Price shall consist of (i) cash of
$19,832,574.55 payable in immediately available funds by wire
transfer in accordance with the wire instructions provided by
Transon, and (ii) an unsecured promissory note of the Company in the
principal amount of $10,678,308.45 in the form of Exhibit A hereto
(the "Transon Note"), delivered to Transon on the Closing.
Transon represents and warrants to the Company as of the date hereof
and as of the date of Closing that (x) it holds its Interest as a
bare trustee for JPMorgan Chase Bank, a New York corporation, as the
trustee of the Victoria Xxxx Lady Getty U.S. Trust and has full
authority from JPMorgan Chase Bank as such trustee to enter into this
Amendment and to consummate the transactions contemplated herein, (y)
it has good and marketable title to the Interest, free and clear of
all liens, pledges, encumbrances or other adverse claims of right,
and (z) it shall remain responsible for all tax consequences relating
to its ownership of the Interest through the date of redemption of
the Interest (including any capital gains due in respect of the
redemption, if applicable).
Upon receipt by Transon of the Transon Redemption Price, Transon
shall cease to be a Member and shall have no further right, title,
interest or claim in and to the Interest or the Company, including
without limitation any indirect interest in the Getty Images Stock
held by the Company; provided, however, that subsequent to the
Closing Transon shall have rights as a creditor of the Company with
respect to the Transon Note. Effective on the Closing, the Interest
of Transon shall be canceled and stricken from the Company's books,
and Schedules A and B to the Operating Agreement shall be replaced
with Schedules A and B hereto (and on the Closing the "Members" of
the Company shall be as set forth therein).
b. Additional Commitment to Fund Transon Redemption. A new Article
8.2(d) is hereby added to the Operating Agreement to read as follows:
2
"(d) The Members (excluding Transon) hereby increase their
Commitments in an aggregate amount of $30,510,883 for the
purpose of financing the redemption of the Interest of Transon
(the "Redemption Commitment"). Each such Member's share of the
Redemption Commitment (the "Redemption Commitment Share") is as
follows:
The CWT Trustee $14,476,027.50
The RFTA Trustees $ 6,406,985.07
The RFTB Trustees $ 5,356,547.05
The GPGFT Trustees $ 4,271,323.38
"Each such Member promises to make a Capital Contribution to the
Company according to its Redemption Commitment Share. In the
case of the CWT Trustee and the RFTB Trustees, their Redemption
Commitment Shares shall be contributed to the Company in cash on
or prior to the date of the Closing. In the case of the RFTA
Trustees and the GPGFT Trustees (the "Deferring Members"), their
Redemption Commitment Shares shall be contributed to the Company
over a period of time coinciding with the Company's obligation
to make payments under the terms of the Transon Note (although a
Deferring Member may at any time elect to contribute all or a
portion of its Redemption Commitment Share sooner, in which case
the Company shall promptly prepay the Transon Note by a like
amount). For the privilege of deferring payment of their
Redemption Commitment Shares, the Deferring Members shall
increase their respective Redemption Commitment Shares by an
amount equal to the interest payable by the Company under the
Transon Note, as and when due (it being understood that the
Capital Commitments of the Deferring Members shall be increased
and paid to the Company only as interest is due on the Transon
Note). Each Deferring Member's Redemption Commitment Share is a
continuing obligation of such Person and, except to the extent
such Deferring Member makes a payment under its guaranty as set
forth in Article 4.4 (in which case its Commitment shall be
reduced by the amount of such payment), the Deferring Member's
Redemption Commitment Share is not subject to reduction, offset
or claim by such Deferring Member against the Company, and shall
be payable without regard to the investment performance of the
Getty Images Stock held by the Company."
c. Guaranty of Transon Note. Article 4.4 of the Operating Agreement is
hereby amended to add the following new paragraph after the end of
the existing paragraph:
"Notwithstanding the foregoing, by its signature below each of
the Deferring Members, severally and not jointly, hereby
guarantees the full payment and performance of principal on the
Transon Note by the Company, up to the amount of such Deferring
Member's Redemption Commitment Share. Such guaranty shall be
enforceable by Transon upon an Event of Default (as such term is
specified in the Transon Note) against the Deferring Member, and
no other Member or a Person that is a Related Person shall bear
the economic
3
risk of loss for the Deferring Member's obligation. The
obligation of a Deferring Member under this guaranty shall be
reduced on a dollar-for-dollar basis by Capital Contributions
made by such Deferring Member of its Redemption Commitment Share
as provided in Article 8.2(d) (and for avoidance of doubt, upon
payment in full of a Deferring Member's Redemption Commitment
Share to the Company such Deferring Member's guaranty shall be
extinguished). This guaranty provided by each Deferring Member
is intended to constitute a pro rata assumption of the Company's
liability for repayment of principal on the Transon Note by the
Deferring Member resulting in (i) an increase in the Deferring
Member's basis in its Interest pursuant to Code Sections 752(a)
and 722 and Treasury Regulation Section 1.752-1(d), and (ii) an
increase in the Deferring Member's Capital Account pursuant to
Treasury Regulation Section 1.704-1(b)(2)(iv)(c), each in an
amount equal to the Deferring Member's respective Redemption
Commitment Share. Conversely, Capital Contributions in cash by
the Deferring Member of its Redemption Commitment Share as and
when paid to the Company shall reduce the Deferring Member's
assumption of such Company liability resulting in a
corresponding decrease in such Deferring Member's basis in its
Interest and Capital Account (although for the avoidance of
doubt the Deferring Member's basis in its Interest and Capital
Account shall be in turn increased by the money actually
contributed to the Company in accordance with Code Sections 722
and Treasury Regulation Section 1.704-1(b)(2)(iv)(b)). This
guaranty is intended to keep the Capital Accounts of the Members
in the same proportions as if the Deferring Members had paid
their respective Redemption Commitment Shares in cash on the
Closing, rather than on a deferred basis."
d. Special Allocation of Interest on Transon Note. Article 9.2 of the
Operating Agreement is hereby amended to add the following sentence
at the end of the existing paragraph:
"Notwithstanding the foregoing, interest expense of the Company
under the terms of the Transon Note shall be specially allocated
to the Deferring Members according to their respective
outstanding Redemption Commitment Shares".
e. Extension of Company Term. In Article 2.3 of the Operating Agreement,
the date "7 July 2003" is hereby deleted and replaced with the date
"6 October 2003". References in the Operating Agreement to the fixed
term or duration shall mean the period ending on 6 October 2003.
f. Board of Directors. Article 4.2 of the Operating Agreement is hereby
deleted in its entirety and replaced with the following:
"Board of Directors and Chairman - The Board shall consist of
six Directors appointed by the Members, who shall designate one
Director as Chairman.
4
The Members agree that the Board shall consist of one Person
representing each of the Members, plus Xxxx Xxxxx (who shall act
as Chairman) and Xxxxxxxx Xxxxx. Each Member with a right to
appoint a Director shall have the power to remove the Director
appointed by it, to appoint a substitute Director to attend any
meeting of the Board and to appoint a replacement Director in
the event such Director resigns, is removed, or otherwise ceases
to be a Director. Such appointment or removal is to be made by
notice in writing to the Company at its office designated
pursuant to Article 2.5 to take effect from the time specified
in any such notice. Upon any Member which has the right to
appoint a Director withdrawing from the Company the right to
appoint a Director by such withdrawing Member shall be
eliminated and the size of the Board shall be reduced
accordingly. The appointment of Xxxx Xxxxx and Xxxxxxxx Xxxxx
shall remain in place so long as each is actively involved in
the affairs of Getty Images. The Board shall have the right to
appoint committees so long as the committee is comprised of at
least one Director. In no event shall a majority of Directors,
or a majority of Persons serving on a committee appointed by the
Board, be residents of the United Kingdom."
g. Conference Call Meetings Outside the United Kingdom. Articles 4.7,
4.8, 5.7 and 5.8 of the Operating Agreement are hereby amended to add
the following sentence at the end of each provision:
"Meetings conducted by telephone shall not be considered to
occur within the United Kingdom if a majority of participants
entitled to vote at such meeting are neither residents of the
United Kingdom nor Persons calling from within the United
Kingdom."
3. Full Force and Effect. Except as modified by this Amendment, the terms and
conditions of the Operating Agreement shall remain in full force and
effect. This Amendment is intended to constitute an amendment by all
Members in accordance with Article 12.1 of the Operating Agreement (and
all Members hereby agree to waive the restrictions in Article 12.1(d) to
the extent necessary to effectuate this Amendment), and upon full
execution shall be kept with the constitutional documents of the Company.
4. Representative Capacity. It is acknowledged and agreed that: (a) the CWT
Trustee, GPGFT Trustees, RFTA Trustees and RFTB Trustees are entering into
this Amendment in their respective capacities as trustees only and not in
their respective individual capacities; (b) such trustees shall have no
personal liability under or arising out of this Amendment or the
transactions contemplated hereby; and (c) all payments to be made by the
CWT Trustee, GPGFT Trustees, RFTA Trustees or RFTB Trustees as
contemplated by this Amendment or the Operating Agreement shall be made
from the assets of their respective trusts and not from the personal
assets of any of such trustees individually.
5. Successors and Assigns. This Amendment shall be binding upon the parties
hereto and their respective successors and permitted assigns. As used
herein "Transon" shall mean Transon
5
Limited and any permitted assignee of the Transon Note, including the
trustee or trustees of the Victoria Xxxx Lady Getty U.S. Trust.
6. Governing Law. This Amendment shall be governed and construed and
interpreted in accordance with the laws of the State of Delaware, without
regard to choice of law provisions.
7. Counterparts. This Amendment may be executed in any number of
counterparts each of which when executed and delivered is an original,
but all the counterparts together constitute the same document.
[Signatures contained on the following page]
6
IN WITNESS WHEREOF, this Amendment has been executed by a duly authorized
representative of each of the parties hereto the day and year first above
written.
The Trustee of the Cheyne Walk Trust
By:
-----------------------------------
Xxx X. Xxxxx
Chief Operating Officer
The Trustees of the Xxxxxx X. Getty
Family Trust
By:
-----------------------------------
Xxxxxx Xxxxx Xxxxxxxxx
Trust Administrator
The Trustees of the Xxxxxx Family
Trust A
By:
-----------------------------------
Xxxxxx Xxxxx Xxxxxxxxx
Trust Administrator
The Trustees of the Xxxxxx Family
Trust B
By:
-----------------------------------
Xxx X. Xxxxx
Chief Operating Officer
Transon Limited
By:
-----------------------------------
Name:
Title:
7
Getty Investments L.L.C.,
a Delaware limited liability company
By:
-----------------------------------
Xxx X. Xxxxx
Officer
Acknowledged and Confirmed:
JPMorgan Chase Bank, as trustee of
the Victoria Xxxx Lady Getty U.S. Trust
By:
-------------------------------------
Name:
Title:
8
Schedule A
Schedule of Capital Account Balances and Sharing Ratios
(Pro forma as of July 16, 2003)
Name of Member and Notice Address Capital Account* Sharing Ratio
--------------------------------- ---------------- -------------
Trustee of the Cheyne Walk Trust $135,162,393.42 47.4455%
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attn: Xxx X. Xxxxx
Trustees of the Xxxxxx Family Trust A $ 59,821,897.76 20.9990%
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
Trustees of the Xxxxxx Family Trust B $ 50,013,977.97 17.5562%
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attn: Xxx X. Xxxxx
Trustees of the Xxxxxx X. Getty Family Trust $ 39,881,265.17 13.9993%
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
--------------- ---------
Total $284,879,534.32 100.0000%
* Capital Account balances shown are subject to further adjustment for accruals
and stock price changes occurring after April 17, 2003.
Schedule B
Schedule of Capital Contributions
(Pro forma as of July 16, 2003)
GETTY INVESTMENTS LLC
SCHEDULE B - MEMBERS CAPITAL CONTRIBUTIONS
Pro Forma for the Period from Inception on June 25, 1996 to July 16, 2003
Running and Transon Ltd.
All Members Date Acquisition Lock-Up Exceptional Redemption Total
** *
Capital Commitments 7/16/2003 $ 119,037,253 $ 2,312,549 $ 1,800,000 $ 30,510,883 $ 153,660,685
============== ============ ============ ============= ==============
Capital Contributions:
Contribution of Interest in GIH 7/8/1996 44,273,990 40,309 869 44,315,168
Anti-Dilution re Carlton, Lock-Up Fees,
& Running Costs 12/18/1996 16,008,015 578,450 33,535 16,620,000
-------------- ------------ ------------ ------------- --------------
Total 1996 Contributions 60,282,005 618,759 34,404 - 60,935,168
-------------- ------------ ------------ ------------- --------------
Purchase of Stone/Xxxxxxxx Shares 5/30/1997 11,667,713 5,087 11,672,800
Lock-Up Fees 7/7/1997 560,000 560,000
-------------- ------------ ------------ ------------- --------------
Total 1997 Contributions 11,667,713 560,000 5,087 - 12,232,800
-------------- ------------ ------------ ------------- --------------
Purchase of Getty Images Shares 2/6/1998 28,300,000 28,300,000
Lock-Up Fees 7/7/1998 614,000 60,000 674,000
-------------- ------------ ------------ ------------- --------------
Total 1998 Contributions 28,300,000 614,000 60,000 - 28,974,000
-------------- ------------ ------------ ------------- --------------
Lock-Up Fees 7/6/1999 213,000 75,000 288,000
Purchase of Getty Images Shares 10/26/1999 32,000,000 32,000,000
-------------- ------------ ------------ ------------- --------------
Total 1999 Contributions 32,000,000 213,000 75,000 - 32,288,000
-------------- ------------ ------------ ------------- --------------
Lock-Up Fees 7/8/2000 202,000 202,000
-------------- ------------ ------------ ------------- --------------
Total 2000 Contributions - 202,000 - - 202,000
-------------- ------------ ------------ ------------- --------------
Lock-Up Fees 7/8/2001 197,000 197,000
-------------- ------------ ------------ ------------- --------------
Total 2001 Contributions - 197,000 - - 197,000
-------------- ------------ ------------ ------------- --------------
Runing & Exceptional Costs 2/4/2002 450,000 450,000
Lock-Up Fees 7/8/2002 208,956 208,956
Running Cost 11/12/2002 105,000 105,000
-------------- ------------ ------------ ------------- --------------
Total 2002 Contributions - 208,956 555,000 - 763,956
-------------- ------------ ------------ ------------- --------------
Runing & Exceptional Costs -
Transon Ltd. Redemption 07/16/03 (13,212,465) (301,166) - 30,510,883 16,997,252
-------------- ------------ ------------ ------------- --------------
Total 2003 Contributions (13,212,465) (301,166) - 30,510,883 16,997,252
-------------- ------------ ------------ ------------- --------------
Cumulative Capital Contributions 7/16/2003 $ 119,037,253 $ 2,312,549 $ 729,491 $ 30,510,883 $ 152,590,176
============== ============ ============ ============= ==============
Unfunded Capital Commitments 7/16/2003 $ - $ - $ 1,070,509 $ - $ 1,070,509
============== ============ ============ ============= ==============
* Due to the death of Xxx Xxxx Getty on 4/17/03, Transon Ltd.'s interest
will be redeemed by the remaining members on 7/16/03. CWT and RFTB will
contribute cash, while RFTA and GGFT will make commitments to fund the
capital calls (and guaranties to pay the Company's promissory note to
Transon Ltd.) needed to complete the redemption.
** Included $78,859 of expenses paid in by Transon Ltd./525 Investments Ltd.
during its term as a Member.
GETTY INVESTMENTS LLC
SCHEDULE B - MEMBERS CAPITAL CONTRIBUTIONS
Pro Forma for the Period from Inception on June 25, 1996 to July 16, 2003
Running and Transon Ltd.
Trustees of the Cheyne Walk Trust Date Acquisition Lock-Up Exceptional Redemption Total
Capital Commitments 7/16/2003 $ 58,912,394 $ 1,024,379 $ 810,856 14,476,028 $ 75,223,657
============= ============ =========== ============ =============
Capital Contributions:
Contribution of Interest in GIH 7/8/1996 16,602,746 15,115 327 16,618,188
Anti-Dilution re Carlton, Lock-Up Fees,
& Running Costs 12/18/1996 6,003,005 216,920 12,575 6,232,500
------------- ------------ ----------- ------------ -------------
Total 1996 Contributions 22,605,751 232,035 12,902 - 22,850,688
------------- ------------ ----------- ------------ -------------
Purchase of Stone/Xxxxxxxx Shares 5/30/1997 4,375,393 1,907 4,377,300
Lock-Up Fees 7/7/1997 210,000 210,000
------------- ------------ ----------- ------------ -------------
Total 1997 Contributions 4,375,393 210,000 1,907 - 4,587,300
------------- ------------ ----------- ------------ -------------
Purchase of Getty Images Shares 2/6/1998 13,331,250 13,331,250
Lock-Up Fees 7/7/1998 241,138 23,564 264,702
------------- ------------ ----------- ------------ -------------
Total 1998 Contributions 13,331,250 241,138 23,564 - 13,595,952
------------- ------------ ----------- ------------ -------------
Lock-Up Fees 7/6/1999 83,652 29,455 113,107
Purchase of Getty Images Shares 10/26/1999 18,600,000 18,600,000
------------- ------------ ----------- ------------ -------------
Total 1999 Contributions 18,600,000 83,652 29,455 - 18,713,107
------------- ------------ ----------- ------------ -------------
Lock-Up Fees 7/8/2000 85,575 85,575
------------- ------------ ----------- ------------ -------------
Total 2000 Contributions - 85,575 - - 85,575
------------- ------------ ----------- ------------ -------------
Lock-Up Fees 7/8/2001 83,457 83,457
------------- ------------ ----------- ------------ -------------
Total 2001 Contributions - 83,457 - - 83,457
------------- ------------ ----------- ------------ -------------
Running & Exceptional Costs 2/4/2002 190,638 190,638
Lock-Up Fees 7/8/2002 88,522 88,522
Running Cost 11/12/2002 44,482 44,482
------------- ------------ ----------- ------------ -------------
Total 2002 Contributions - 88,522 235,120 - 323,642
------------- ------------ ----------- ------------ -------------
Running & Exceptional Costs -
Transon Ltd. Redemption 7/16/2003 14,476,028 14,476,028
------------- ------------ ----------- ------------ -------------
Total 2003 Contributions - - - 14,476,028 14,476,028
------------- ------------ ----------- ------------ -------------
Cumulative Capital Contributions 7/16/2003 $ 58,912,394 1,024,379 $ 302,948 4,476,028 $ 74,715,749
============= ============ =========== ============ =============
Unfunded Capital Commitments 7/16/2003 $ - $ - $ 507,908 $ - $ 507,908
============= ============ =========== ============ =============
* Capital call for Transon Ltd. redemption to be funded with cash.
GETTY INVESTMENTS LLC
SCHEDULE B - MEMBERS CAPITAL CONTRIBUTIONS
Pro Forma for the Period from Inception on June 25, 1996 to July 16, 2003
Running and Transon Ltd.
Trustees of the Xxxxxx Family Trust A Date Acquisition Lock-Up Exceptional Redemption Total
*
Capital Commitments 7/16/2003 $ 24,796,822 $ 490,072 $ 361,576 $ 6,406,985 $ 32,055,455
============= =========== =========== ============ =============
Capital Contributions:
Contribution of Interest in GIH 7/8/1996 8,301,373 7,558 163 8,309,094
Anti-Dilution re Carlton, Lock-Up Fees,
& Running Costs 12/18/1996 3,001,503 108,459 6,288 3,116,250
------------- ----------- ----------- ------------ -------------
Total 1996 Contributions 11,302,876 116,017 6,451 - 11,425,344
------------- ----------- ----------- ------------ -------------
Purchase of Stone/Xxxxxxxx Shares 5/30/1997 2,187,696 954 2,188,650
Lock-Up Fees 7/7/1997 105,000 105,000
------------- ----------- ----------- ------------ -------------
Total 1997 Contributions 2,187,696 105,000 954 - 2,293,650
------------- ----------- ----------- ------------ -------------
Purchase of Getty Images Shares 2/6/1998 5,306,250 5,306,250
Lock-Up Fees 7/7/1998 115,125 11,250 126,375
------------- ----------- ----------- ------------ -------------
Total 1998 Contributions 5,306,250 115,125 11,250 - 5,432,625
------------- ----------- ----------- ------------ -------------
Lock-Up Fees 7/6/1999 39,938 14,062 54,000
Purchase of Getty Images Shares 10/26/1999 6,000,000 6,000,000
------------- ----------- ----------- ------------ -------------
Total 1999 Contributions 6,000,000 39,938 14,062 - 6,054,000
------------- ----------- ----------- ------------ -------------
Lock-Up Fees 7/8/2000 37,875 37,875
------------- ----------- ----------- ------------ -------------
Total 2000 Contributions - 37,875 - - 37,875
------------- ----------- ----------- ------------ -------------
Lock-Up Fees 7/8/2001 36,938 36,938
------------- ----------- ----------- ------------ -------------
Total 2001 Contributions - 36,938 - - 36,938
------------- ----------- ----------- ------------ -------------
Running & Exceptional Costs 2/4/2002 84,375 84,375
Lock-Up Fees 7/8/2002 39,179 39,179
Running Cost 11/12/2002 19,688 19,688
------------- ----------- ----------- ------------ -------------
Total 2002 Contributions - 39,179 104,063 - 143,242
------------- ----------- ----------- ------------ -------------
Running & Exceptional Costs 6,406,985 6,406,985
Transon Ltd. Redemption 7/16/2003 -
------------- ----------- ----------- ------------ -------------
Total 2003 Contributions - - - 6,406,985 6,406,985
------------- ----------- ----------- ------------ -------------
Cumulative Capital Contributions 7/16/2003 $ 24,796,822 $ 490,072 $ 136,780 $ 6,406,985 $ 31,830,659
============= =========== =========== ============ =============
Unfunded Capital Commitments 7/16/2003 $ - $ - $ 224,796 $ - $ 224,796
============= =========== =========== ============ =============
* Capital call for Transon Ltd. redemption to be funded by a commitment and
a guaranty to pay its share of the Company's promissory note to Transon
Ltd.
GETTY INVESTMENTS LLC
SCHEDULE B - MEMBERS CAPITAL CONTRIBUTIONS
Pro Forma for the Period from Inception on June 25, 1996 to July 16, 2003
Running and Transon Ltd.
Trustees of the Xxxxxx Family Trust B Date Acquisition Lock-Up Exceptional Redemption Total
*
Capital Commitments 7/16/2003 $ 18,796,822 $ 471,383 $ 307,659 $ 5,356,547 $ 24,932,411
============= ========== ============ ============= =============
Capital Contributions:
Contribution of Interest in GIH 7/8/1996 8,301,373 7,558 163 8,309,094
Anti-Dilution re Carlton, Lock-Up Fees,
& Running Costs 12/18/1996 3,001,503 108,459 6,288 3,116,250
------------- ---------- ------------ ------------- -------------
Total 1996 Contributions 11,302,876 116,017 6,451 - 11,425,344
------------- ---------- ------------ ------------- -------------
Purchase of Stone/Xxxxxxxx Shares 5/30/1997 2,187,696 954 2,188,650
Lock-Up Fees 7/7/1997 105,000 105,000
------------- ---------- ------------ ------------- -------------
Total 1997 Contributions 2,187,696 105,000 954 - 2,293,650
------------- ---------- ------------ ------------- -------------
Purchase of Getty Images Shares 2/6/1998 5,306,250 5,306,250
Lock-Up Fees 7/7/1998 115,125 11,250 126,375
------------- ---------- ------------ ------------- -------------
Total 1998 Contributions 5,306,250 115,125 11,250 - 5,432,625
------------- ---------- ------------ ------------- -------------
Lock-Up Fees 7/6/1999 39,938 14,062 54,000
Purchase of Getty Images Shares -
------------- ---------- ------------ ------------- -------------
Total 1999 Contributions - 39,938 14,062 - 54,000
------------- ---------- ------------ ------------- -------------
Lock-Up Fees 7/8/2000 31,665 31,665
------------- ---------- ------------ ------------- -------------
Total 2000 Contributions - 31,665 - - 31,665
------------- ---------- ------------ ------------- -------------
Lock-Up Fees 7/8/2001 30,882 30,882
------------- ---------- ------------ ------------- -------------
Total 2001 Contributions - 30,882 - - 30,882
------------- ---------- ------------ ------------- -------------
Running & Exceptional Costs 2/4/2002 70,542 70,542
Lock-Up Fees 7/8/2002 32,756 32,756
Running Cost 11/12/2002 16,459 16,459
------------- ---------- ------------ ------------- -------------
Total 2002 Contributions - 32,756 87,001 - 119,757
------------- ---------- ------------ ------------- -------------
Running & Exceptional Costs -
Transon Ltd. Redemption 7/16/2003 5,356,547 5,356,547
------------- ---------- ------------ ------------- -------------
Total 2003 Contributions - - - 5,356,547 5,356,547
------------- ---------- ------------ ------------- -------------
Cumulative Capital Contributions 7/16/2003 $ 18,796,822 $ 471,383 $ 119,718 $ 5,356,547 $ 24,744,470
============= ========== ============ ============= =============
Unfunded Capital Commitments 7/16/2003 $ - $ - $ 187,941 $ - $ 187,941
============= ========== ============ ============= =============
* Capital call for Transon Ltd. redemption to be funded with cash.
GETTY INVESTMENTS LLC
SCHEDULE B - MEMBERS CAPITAL CONTRIBUTIONS
Pro Forma for the Period from Inception on June 25, 1996 to July 16, 2003
Running and Transon Ltd.
Trustees of the Xxxxxx X. Getty Family Trust Date Acquisition Lock-Up Exceptional Redemption Total
*
Capital Commitments 7/16/2003 $ 16,531,215 $ 326,715 $ 241,050 $ 4,271,323 21,370,303
============= =========== ============ ============ ============
Capital Contributions:
Contribution of Interest in GIH 7/8/1996 5,534,249 5,039 108 5,539,396
Anti-Dilution re Carlton, Lock-Up Fees,
& Running Costs 12/18/1996 2,001,002 72,306 4,192 2,077,500
------------- ----------- ------------ ------------ ------------
Total 1996 Contributions 7,535,251 77,345 4,300 - 7,616,896
------------- ----------- ------------ ------------ ------------
Purchase of Stone/Xxxxxxxx Shares 5/30/1997 1,458,464 636 1,459,100
Lock-Up Fees 7/7/1997 70,000 70,000
------------- ----------- ------------ ------------ ------------
Total 1997 Contributions 1,458,464 70,000 636 - 1,529,100
------------- ----------- ------------ ------------ ------------
Purchase of Getty Images Shares 2/6/1998 3,537,500 3,537,500
Lock-Up Fees 7/7/1998 76,750 7,500 84,250
------------- ----------- ------------ ------------ ------------
Total 1998 Contributions 3,537,500 76,750 7,500 - 3,621,750
------------- ----------- ------------ ------------ ------------
Lock-Up Fees 7/6/1999 26,625 9,375 36,000
Purchase of Getty Images Shares 10/26/1999 4,000,000 4,000,000
------------- ----------- ------------ ------------ ------------
Total 1999 Contributions 4,000,000 26,625 9,375 - 4,036,000
------------- ----------- ------------ ------------ ------------
Lock-Up Fees 7/8/2000 25,250 25,250
------------- ----------- ------------ ------------ ------------
Total 2000 Contributions - 25,250 - - 25,250
------------- ----------- ------------ ------------ ------------
Lock-Up Fees 7/8/2001 24,625 24,625
------------- ----------- ------------ ------------ ------------
Total 2001 Contributions - 24,625 - - 24,625
------------- ----------- ------------ ------------ ------------
Running & Exceptional Costs 2/4/2002 56,250 56,250
Lock-Up Fees 7/8/2002 26,120 26,120
Running Cost 11/12/2002 13,125 13,125
------------- ----------- ------------ ------------ ------------
Total 2002 Contributions - 26,120 69,375 - 95,495
------------- ----------- ------------ ------------ ------------
Running & Exceptional Costs -
Transon Ltd. Redemption 7/16/2003 4,271,323 4,271,323
------------- ----------- ------------ ------------ ------------
Total 2003 Contributions - - - 4,271,323 4,271,323
------------- ----------- ------------ ------------ ------------
Cumulative Capital Contributions 7/16/2003 $ 16,531,215 $ 326,715 $ 91,186 $ 4,271,323 $ 21,220,439
============= =========== ============ ============ ============
Unfunded Capital Commitments 7/16/2003 $ - $ - $ 149,864 $ - $ 149,864
============= =========== ============ ============ ============
* Capital call for Transon Ltd. redemption to be funded by a commitment and
a guaranty to pay its share of the Company's promissory note to Transon
Ltd.
EXHIBIT A
UNSECURED PROMISSORY NOTE
July 16, 2003 US$10,678,308.45
Reno, Nevada
1. Principal. For value received, the undersigned, Getty Investments
L.L.C., a Delaware limited liability company (the "Borrower"), promises to pay
to the order of the Transon Limited (the "Holder"), in lawful money of the
United States of America, the principal sum of Ten Million Six Hundred
Seventy-Eight Thousand Three Hundred Eight Dollars and 45/100ths
($10,678,308.45), together with accrued interest from the date of this
Promissory Note (the "Note") on the unpaid principal, on the Maturity Date.
2. Interest. Principal of this Note shall bear interest at the reference
rate quoted by Bank of America, N.A. from time to time (which reference rate is
currently 4.00% per annum on the date hereof). Accrued interest shall be
payable annually on each anniversary date of this Note.
3. Maturity Date. The unpaid principal balance of this Note, together with
all unpaid interest accrued thereon, shall be due and payable on the Maturity
Date. The "Maturity Date" shall be the earlier to occur of (a) July 16, 2006,
and (b) the date of a "Dissolution Event" of Borrower as defined in the
Restated Limited Liability Company Agreement of Borrower, dated as of February
9, 1998, as amended on October 26, 1999, November 1, 2001 and July 1, 2003.
4. Place of Payment. Payment of principal of and interest on this Note
shall be made to Holder at c/o Macfarlanes, 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX,
Xxxxxxx (or at such other place as Holder shall designate in writing).
5. Prepayment. Borrower shall have the right to prepay this Note, in full
or in part, at any time without penalty.
6. Event of Default. Any of the following events shall, at Holder's
option, constitute an event of default (an "Event Default") under this Note:
(a) a default in the payment when due of any amount under this Note, which
default continues uncured following 15 days' notice of such default by Holder
to Borrower; (b) the failure by Borrower to perform or comply with any
agreements, covenants or obligations under this Note, which default continues
uncured following 30 days' notice of such default by Holder to Borrower; (c)
the filing by or against Borrower of a voluntary petition in bankruptcy or an
assignment for the benefit of creditors; or (d) an insolvency of Borrower.
7. Acceleration. Upon the occurrence of a Event Default, Holder at its
option may (A) declare all principal, interest and other sums due under this
Note to be immediately due and payable without further demand, and/or (B)
exercise any and all other legal rights and remedies available to Holder. The
failure to exercise the foregoing options shall not constitute a waiver of the
right to exercise the same at any subsequent time in respect of the same event
or any other event. The
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acceptance by Holder of any payment under this Note that is less than payment
in full of all amounts due and payable at the time of such payment shall not
constitute a waiver of the right to exercise any of the foregoing options at
that time or at any subsequent time or nullify any prior exercise of such
option without the express written consent of Holder except as and to the
extent otherwise provided by law.
8. Notices. Any notice to Borrower or Holder in connection with this Note
shall be given (a) by Federal Express (or other reputable overnight delivery
service), or (b) by facsimile transmission, addressed to such party at the
address stated below, or to such other address as such party may designate by
written notice to the other party.
If to Borrower: Getty Investments L.L.C.
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Telecopy: 000-000-0000
Attn: Xxx X. Xxxxx
If to Holder: Transon Limited
c/o JPMorgan Chase Bank, as trustee
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: 000-000-0000
Attn: Xxxxx Xxxxxx
With a copy to: XX Xxxx Clutton
Macfarlanes
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Telecopy: 00-000-000-0000
9. Relationship of the Parties. The relationship between Borrower and
Holder in connection with this Note is that of debtor and creditor. Nothing
contained in this Note is intended or shall be deemed or construed to create a
partnership, limited liability company membership or co-ownership relationship
between Borrower and Holder.
10. Amendment. This Note may not be terminated or amended orally, but only
by a termination or amendment in writing signed by Holder and Borrower.
11. Assignment. Borrower acknowledges and agrees that Transon Limited is
holding this Note as a bare trustee for JPMorgan Chase Bank as the trustee of
the Victoria Xxxx Lady Getty U.S. Trust and that Transon Limited may assign its
interest in this Note directly to the trustee or trustees of the Victoria Xxxx
Lady Getty U.S. Trust, in which case such assignee shall be the "Holder"
herein. Subject to the foregoing, neither Borrower nor Holder shall assign any
or all of their interests under this Note without the prior written consent of
the other party, which consent may be withheld at such party's sole and
absolute discretion.
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12. Severability. If any provision of this Note or its application to any
party or circumstance shall be determined by any court of competent
jurisdiction to be invalid, illegal or unenforceable to any extent, the
remainder of this Note or the application of such provision to such person or
circumstance, other than those as to which it is determined invalid, illegal or
unenforceable, shall not be affected, and each other provision of this Note
shall be valid and legal and shall be enforced to the fullest extent permitted
by law. It is the intention of the parties that in lieu of each clause or
provision of this Note that is invalid, illegal or unenforceable, there be
added as a part of this Note a clause or provision as similar in terms to such
invalid, illegal or unenforceable clause or provision as may be permissible and
be valid, legal and enforceable.
13. Governing Law. This Note shall be construed and enforced in accordance
with and governed by the laws of the State of Nevada.
IN WITNESS WHEREOF, the undersigned has executed this Promissory Note as
of the day and year first written above.
Getty Investments L.L.C.,
a Delaware limited liability company
By:
---------------------------------
Xxx X. Xxxxx
Officer
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